# RAMESH CHAND ARDAWATIYA v. ANIL PANJWANI

- **Citation:** [2003] 3 S.C.R. 1149
- **Court:** Supreme Court of India
- **Decided:** 2003-05-05
- **Bench:** R.C. Lahoti, Brijesh Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramesh-chand-ardawatiya-v-anil-panjwani-19100
- **Pages:** 30

## Headnote

B
Code of Civil Procedure, 1908:
Suit for declaration of title, possession from trespasser and mandatory
injunction-Plaintiff claiming title on the strength of agreement to sale- C
Possession of plaintiff on the land from the date of agreement proved-Suit
decreed and confirmed by First Appellate Court and High Court, declaring
plaintiff as owner of the suit land-On appeal, held: Plaintiff is not owner of
the suit land, but has only possessory title-Contract of sale does not confer
title in immovable property-But if person enters into possession under a D
contract with consent of the titlP- holder, he is entitled to protect his possession
from everyone except the person who has heller title than him or the vendeeTrespasser not having title belier than that of the plaintiff, was not entitled to
dispossess the plaintiff-Transfer of Property Act,
1882-5~A and 54limitation Act, 1963-Article 64-Specific Relief Act, 1963-Section 6.
Order VIII Rules /, 2, 6, 6A, 6B, 6C, 8 and 9 (as amended by Amendment
Act I 04 of 1976)-Counter-claim-Right to file-Wrillen statement not filedHeld: Pleading by W£D' of counter-claim runs with the right of filing wrillen
statement-Counter-claim must find its place in the writlen statement-Once
E
the right to file writ/en statement is lost or the limitation period for defence F
expires, neither written statement can be flied nor counter-claim can be allowed
to be raised-However, Court has discretion to permit a written statement
being filed belatedly.
Civil Court-Jurisdiction-When alternative forum available-Held:
Despite alternative forum having exclusive jurisdiction to try particular cases, G
Civil Court can entertain a civil suit of that class on availability of a new
ground-Question of jurisdiction is to be determined primarily on the averments
made in the plaint-Exclusion of Civil Court 'sjurisdiction in such cases should
be raised at the earliest -In the present case, the suit being of the nature of
declaration, possession and injunction, dispute not being u/s 75(/)(a) to (e)
1149
H
1150
SUPREME COURT REPORTS
(2003] 3 S.C.R.
A 75(2)(a) to (c) a/Co-operative Societies Act, not excludedfrom the jurisdiction
of civil Court-Hence, suit not bad for jurisdictional incompetence-Rajasthan
Co-operative Societies Act, 1965-Section 75(/)(a) to (e) and 2(a) to (c).
Evidence-Nature of-In ex-parte proceeding-Held: In such
proceedings, merely due to absence of defendant, Court shall not admit legally
B inadmissible evidence nor permit decision being influenced by irrelevant or
inadmissible evidl!nce.
The suit property which was a vacant land _was allotted to 'S' by a
Co-operative Society by allotment letter dated 26.6.1980. PlaintiffC respondent had entered into an agreement dated 11.12.1985 for purchase
of the suit property. On the basis of the agreement he entered into the
possession of the property and constructed a boundary wall. Plaintiffrespondent found a hutment being raised on the suit land. On enquiry he
found that it was being done at the behest of defendant-petitioner. Plaintiff
filed suit for declaration of his title as owner of the land, for restoration of
D possession from the trespasser-defendant, for mandatory injunction for
removal of the construction raised by the trespasser and for permanent
. prohibitory injunction from raising any further construction. Commissioner
appointed to visit the suit property submitted his report. Despite notice
defendant did not file any written statement. Thereafter matter was
adjourned 15 times and yet no written statement or reply was filed. Another
E Commissioner was appointed who inspected the site in the presence of both
the parties. He had stated in his report that the plot had a temporary
kitchen instead of a hut, and two newly constructed small rooms and a
platform had come up. Correctness of this report was not challenged by
the defendant at any stage of proceedings. Again the case was adjourned
F on 29 occasions and no written statement was filed. On a da

## Text

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RAMESH CHAND ARDAWATIYA
A
v.
ANIL PANJWANI
MAY 5, 2003
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.]
B
Code of Civil Procedure, 1908:
Suit for declaration of title, possession from trespasser and mandatory
injunction-Plaintiff claiming title on the strength of agreement to sale- C
Possession of plaintiff on the land from the date of agreement proved-Suit
decreed and confirmed by First Appellate Court and High Court, declaring
plaintiff as owner of the suit land-On appeal, held: Plaintiff is not owner of
the suit land, but has only possessory title-Contract of sale does not confer
title in immovable property-But if person enters into possession under a D
contract with consent of the titlP- holder, he is entitled to protect his possession
from everyone except the person who has heller title than him or the vendeeTrespasser not having title belier than that of the plaintiff, was not entitled to
dispossess the plaintiff-Transfer of Property Act,
1882-5~A and 54limitation Act, 1963-Article 64-Specific Relief Act, 1963-Section 6.
Order VIII Rules /, 2, 6, 6A, 6B, 6C, 8 and 9 (as amended by Amendment
Act I 04 of 1976)-Counter-claim-Right to file-Wrillen statement not filedHeld: Pleading by W£D' of counter-claim runs with the right of filing wrillen
statement-Counter-claim must find its place in the writlen statement-Once
E
the right to file writ/en statement is lost or the limitation period for defence F
expires, neither written statement can be flied nor counter-claim can be allowed
to be raised-However, Court has discretion to permit a written statement
being filed belatedly.
Civil Court-Jurisdiction-When alternative forum available-Held:
Despite alternative forum having exclusive jurisdiction to try particular cases, G
Civil Court can entertain a civil suit of that class on availability of a new
ground-Question of jurisdiction is to be determined primarily on the averments
made in the plaint-Exclusion of Civil Court 'sjurisdiction in such cases should
be raised at the earliest -In the present case, the suit being of the nature of
declaration, possession and injunction, dispute not being u/s 75(/)(a) to (e)
1149
H
1150
SUPREME COURT REPORTS
(2003] 3 S.C.R.
A 75(2)(a) to (c) a/Co-operative Societies Act, not excludedfrom the jurisdiction
of civil Court-Hence, suit not bad for jurisdictional incompetence-Rajasthan
Co-operative Societies Act, 1965-Section 75(/)(a) to (e) and 2(a) to (c).
Evidence-Nature of-In ex-parte proceeding-Held: In such
proceedings, merely due to absence of defendant, Court shall not admit legally
B inadmissible evidence nor permit decision being influenced by irrelevant or
inadmissible evidl!nce.
The suit property which was a vacant land _was allotted to 'S' by a
Co-operative Society by allotment letter dated 26.6.1980. PlaintiffC respondent had entered into an agreement dated 11.12.1985 for purchase
of the suit property. On the basis of the agreement he entered into the
possession of the property and constructed a boundary wall. Plaintiffrespondent found a hutment being raised on the suit land. On enquiry he
found that it was being done at the behest of defendant-petitioner. Plaintiff
filed suit for declaration of his title as owner of the land, for restoration of
D possession from the trespasser-defendant, for mandatory injunction for
removal of the construction raised by the trespasser and for permanent
. prohibitory injunction from raising any further construction. Commissioner
appointed to visit the suit property submitted his report. Despite notice
defendant did not file any written statement. Thereafter matter was
adjourned 15 times and yet no written statement or reply was filed. Another
E Commissioner was appointed who inspected the site in the presence of both
the parties. He had stated in his report that the plot had a temporary
kitchen instead of a hut, and two newly constructed small rooms and a
platform had come up. Correctness of this report was not challenged by
the defendant at any stage of proceedings. Again the case was adjourned
F on 29 occasions and no written statement was filed. On a date of hearing
when defendant and his counsel absented from the Court, the case
proceeded ex-parte. On the date of plaintiff's ex-pa rte evidence, defendant
filed an application seeking the setting aside of ex-pa rte proceedings and
the same was dismissed. After ex-parte proceedings trial court reserved
G
the judgment. In the meantime defendant filed Revision petition challenging
the order of trial court dismissing application seeking the setting-aside of
ex-parte proceedings and the same was dismissed by High Court.
Thereafter defendant filed application before trial court seeking
opportunity for cross-examining plaintifrs witnesses and the same was
allowed subject to certain conditions. At this stage defendant filed an
H application under Order 8 Rule 6A CPC seeking leave of the Court to file
R.C. ARDAWATIYA v. ANIL PANJWANI
1151
written statement by way of counter claim alleging therein that the lefter A
of allotment dated 26.6.1980 was false and forged and sought declaration
of the allotment letter and agreement dated 1.12.1985 as null and void.
Plaintiff was called upon to file a reply and the same was challenged by
plaintiff in Revision petition. Revision was allowed by High Court with a
direction to examine the President and Secretary of the Co-operative society B
as Court witnesses alongwith the records of the society. As the records were
not traceable, trial court reported to the High Court that the direction made
by High Court was not possible of compliance for want of records. Evidence
was closed as permitted by High Court directing the case to be decided
within 3 months. After the arguments were heard, defendant filed an
application seeking leave of the Court for examining his witnesses. T:1e C
application was dismissed and the dismissal order was challenged in
revision. Trial Court decreed the suit declaring the plaintiff to be owner
of the Suit plot, directing the defendant to restore possession to the plaintiff.
First appeal against the decree as well as second appeal were dismissed.
In appeal to this Court defendant-appellant contended that Civil D
Court had no jurisdiction to try the suit as alternative remedy was available
under Rajasthan Co-operative societies Act, 1965; that even if defendant
was being proceeded ex-parte, his counter-claim should have been taken
on record and heard and decided on merits; that even if suit proceeds for
hearing ex-parte, it is the duty of the Court to decide the case in accordance E
with law; that plaintiff being entitled to relief of specific performance, the
suit for mere declaration of title, recovery of possession and injunction was
not maintainable; and that unless and until he had perfected his title by
execution of sale deed, he could not have been declared the owner of the
property.
Partly allowing the appeal, the Court
HELD: 1.1. On the proven facts of the case the plaintiff is not entitled
to a declaration that he is owner of the property. There is no pleading and
F
no proof of the defendant having any title-much less a title better than
that of the plaintiff-to the suit property. He could not have dispossessed G
the plaintiff nor interfered with the peaceful possession and enjoyment of
the plot by the plaintiff. The plaintiff is, therefore, entitled to a declaration
. of his possessory title that he was in peaceful possession and enjoyment of
the property until the date his possession was threatened by the defendant
by attempting to raise unauthorized construction over the property.
11177-D-Fl H
1152
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A
1.2. A contract for sale does not confer title in immovable property.
Section 54 of the Transfer of Property Act provides that a contract for the
sale of immovable property is a contract that sale of such property shall
take place on terms settled between the parties; it does not of itself, create
any interest in or charge on such immovable property. However still, if a
B person has entered into possession over immovable property under a
contract for sale and is in peaceful and settled possession of the property
with the consent of the person in whom vests the title, he is entitled to
protect his possession against the whole world, excepting a person having
a title bette·r than what he or his vendor possesses. If he is in possession of
the property in part performance of contract for sale and the requirements
C of Section 53A of the Transfer of Property Act are satisfied, he may protect
his possession even against the true owner. 11173-C-El
Shrimanl Shamrao Suryavanshi and Anr. v. Prathod Bhoiroma
Suryavanshi (dead) by LRs. and Ors., 120021 3 SCC 676, referred to.
D
1.3 Section 6 of the Specific Relief Act, 1963, provides for any person
dispossessed without his consent of immovable property otherwise than in
due course of law being entitled to claim and successfully sue for recovery
of possession thereof, notwithstanding any other title that may be set up
in such suit if the suit is brought before the expiry of six months from the
E date of dispossession except against the Government. Article 64 of
Limitation Act, 1963 contemplates a suit for possession of immovable
property based on previous possession, and not on title, being brought
within twelve years from the date of dispossession. Such a suit is known in
law as a suit based on possessory title as distinguished from proprietory
title. I 1173-F-G I
F
Nair Service Society Ltd. v. KC. Alexander and Ors., 1196813 SCR 163,
relied on.
1.4. The person in possession may not have title to the property yet
G if he has been inducted into possession by the rightful owner and is in
peaceful and settled possession of such property he is entitled in law to
protect the possession until dispossessed by due process of law by a person
having a title better than what he has. A person in possession of the
property cannot be forcibly dispossessed by another rank trespasser and
even if the latter docs so, the former may be entitled to restoration of
H possession, because the law respects peaceful possession and frowns upon
;
-
-·
R.C. ARDAWATIY A v. ANIL PANJWANI
1153
the person who takes the law in his own hands. f 1176-B-CI
1.5. From the evidence it is proved that the title of the plot vests in
'S'. He has entered into contract for sale for consideration in favour of
the plaintiff. Upto date of agreement of sale he was in possession of the
property. Thereafter plaintiff remained in possession of the plot. He raised
a boundary wall to protect the possession as a prospective vendee. The
contract for sale was acted upon. The defendant has not been able to prove
any right to possess the suit property-a right better than that of the
plaintiff-much less a title in himself. This is an appropriate case where
the plaintiff must be held to have been in peaceful and lawful possession
A
B
of the suit property invaded upon by the defendant otherwise than by due C
process of law and hence the status quo ante by reference to the date of
accrual of cause of action must be restored followed by incidental and
consequential relief of injunctions. The defendant may then seek recovery
of possession but only by establishing his title therefor in duly constituted
legal proceedings before a competent forum. The plaintiff had rushed to
the Court without any loss of time. His averments made in the plaint and D
the evidence have remained uncontroverted and unrebutted.
11176-H; 1177-A-CI
1.6. The decree of declaration that the plaintiff-respondent is owner
of the suit property is set aside. Instead it is declared that from 1.12.1985 E
to 8.2.1987 the plaintiff was in peaceful possession of the suit plot pursuant
to agreement dated 1.12.1985 entered into by the allottee of the plot from
the society, in favour of the plaintiff. The plaintiff is also entitled for
mandatory and permanent preventive injunctions. Construction, if any,
raised by the defendant on the plot and the hutment raised by his labourers
shall be removed by him and the possession over the plot shall be restored F
to the plaintiff. The defendant is permanently restrained from interfering
with the possession of the plaintiff over the suit plot except by due process
of law. fl 177-H; 1178-A-BI
2.1. A perusal of Rules I, 2, 6, 6A, 68, 6C, 8 and 9 of Order VIII G
CPC show that it is the Amendment Act of 1976 which has conferred a
statutory right on a defendant to file a counter claim. The words in Ruic
6A go to show that a pleading by way of counter-claim runs with the right
of filing a written statement and that such right to set up a counter claim
is in addition to the right of pleading a set-off conferred by Rule 6. A setoff has to be pleaded in the written statement. The coui:ter-claim must H
1154
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A necessarily find its place in the written statement. Once the right of the
defendant to file written statement has been lost or the time limited for
delivery of the defence has expired then neither the written statement can
be filed as of right nor a counter-claim can be allowed to be raised, for the
counter-claim under Rule 6A must find its place in the written statement.
B The Court has discretion to permit a written statement being filed belatedly
and, therefore, has a discretion also to permit a written statement
containing a plea in the nature of set-off or counter-claim being filed
belatedly but such discretion shall be exercised in a reasonable manner
keeping in view all the facts and circumstances of the case including the
conduct of the defendant, and the fact whether a belated leave of the Court
C would cause prejudice to the plaintiff or take away a vested right which
has accrued to the plaintiff by lapse of time. 11168-E-H; 1169-AI
D
2.2. The purpose of the provision enabling filing of a counkr-claim
is to avoid multiplicity of judicial proceedings and save upon the Court's
time as also to exclude the inconvenience to the parties by enabling claims
and counter-claims, that is, all disputes between the same partif'S being
decided in the course of the same proceedings. If the consequence of
permitting a counter-claim either by way of amendment or by way of
subsequent pleading would be prolonging the trial, complicating the
otherwise smooth flow of proceedings or causing a delay in the progress
E of the suit by forcing a retreat on the steps already taken by the Court,
the Court would be justified in exercising its discretion not in favour of
permitting a belated counter-claim. The framers of the law never intended
the pleading by way of counter-claim being utilized as an instrument for
forcing upon a reopening of the trial or pushing back the progress of
proceeding. Generally speaking, a counter-claim not contained in the
F original written statement may be refused to be taken on record if the issues
have already been framed and the case set down for trial, and more so
when the trial has already commenced. In the present case, the defendant
having failed to. file any written statement and also having forfeited his right
of filing the same the trial court was fully justified in not entertaining the
G counter-claim filed by the defendant-appellant. A refusal on the part of
the Court to entertain a belated counter-claim may not prejudice the
defendant because in spite of the counter-claim having been refused to be
entertained he is always at liberty to file his own suit based on the cause of
action for counter-claim. 11170-B-CI
H
2.3. The purpose of the defendant which was sought to be achieved
I
R.C. ARDAWATIY A v. ANIL PANJWANI
1155
by moving the application under Order VIII Rule 6A CPC was clearly ma/a A
fide and an attempt to reopen the proceedings, including that part too as
had stood concluded against him consequent upon rejection of his
application under Order IX Rule 7 CPC. There being no written statement
of the defendant available on record and the right of the defendant to file
the written statement having been closed, finally and conclusively, he could B
not have filed a counter-claim. (1171-G-H; 1172-A(
2.4. The averments made in the counter-claim were prima facie false.
One of the pleas raised in the counter-claim is that the defendant had got
the plot allotted to him in the year 1980 and soon thereafter a house was
constructed on the plot and his family was living therein which story is a C
blatant lie in view of the reports filed by two different Advoc11te
Commissioners, the later one being bi-party and none having been disputed
so far as the correctness of facts found and recorded therein is concerned.
(1171-G-H; 1172-A)
Sangram Singh v. Election Tribunal, Kotah, 1195512SCR1; Arjun Singh D
v. Mohinder Kumar and Ors., (1964) 5 SCR 946 and Laxmidas Dayabhai
Kabrawala v. Nandbhai Chunilal Kabrawala and Ors .. 11964( 2 SCR 567,
relied on.
Mahender Kumar and Anr. v. State of Madhya Pradesh and Ors., (1987(
3 SCC 265 and Shanti Rani Das Dewanji v. Dinesh Chandra Day, 11997( 8 E
sec 174, distinguished.
3. Even if the suit proceeds ex-pa rte and in the absence of a written
statement, unless the applicability of Order VIII Rule 10 CPC is attracted
and the Court acts thereunder, the necessity of proof by the plaintiff of
his case to the satisfaction of the Court cannot be dispensed with. In the F
absence of denial of plaint averments the burden of proof on the plaintiff
is not very heavy. A prima facie proof of the relevant facts constituting
the cause of action would suffice and the Court would grant the plaintiff
such relief as to which he may in law be found entitled. In a case which
has proceeded ex-partc the Court is not bound to frame issues under Order G
XIV and deliver the judgment on every issue as required by Order XX Rule
5. Yet the trial court would scrutinize the available pleadings and
documents, consider the evidence adduced, and would do well to frame the
'points for determination' and proceed to construct the ex-pa rte judgment
dealing with the points at issue one by one. Merely because the defendant
is absent the Court shall not admit evidence the admissibility whereof is H
1156
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A excluded 'by law nor permit its decision being influenced by irrelevant or
inadmissible evidence. (1172-G-H; 1173-A-CJ
B
4.l. Civil court does not suffer from any inherent lack of jurisdiction.
Where there is a special Tribunal conferred with jurisdiction or exclusive
jurisdiction to try particular class of cases even then the civil court can
entertain a civil suit of that class on availabilit) of a few grounds. An
exclusion of jurisdiction of civil court is not to be readily inferred. An
objection as to the exclusion of civil court's jurisdiction for availability of
alternative forum should be taken before the trial court and at the earliest
failing which the higher court may refuse to entertain the plea in the
C absence of proof of prejudice. (1163-H; 1164-A-B(
Dhulabhai etc. v. State of Madhya Pradesh and Anr., (1968( 3 SCR 662,
referred to.
4.2 In the present case there is nothing to show that the defendant is
D also a member of the Society or claiming under a member. The plaintiff
does not have any dispute with another member of the society or the society
itself. The question of jurisdiction is to be determined primarily on the
averments made in the plaint. The plaint as framed by the plaintiff is for
declaration of title as owner (and in the alternative, his possessory title)
E and seeking restoration of possession, as also issuance of mandatory and
preventive injunctions against a recent encroachment. Neither is it a dispute
between the parties referred to in Clauses (a) to (e) of sub-Section (I) of
Section 75, nor does the nature of the dispute fall in Clauses (a) to (c) of
sub-Section (2) of Section 75 of Rajasthan Co-operative Societies Act, 1965,
so as to be one excluded from the domain of a civil court to try the suit. It
F cannot be held that the civil court suffered from any jurisdictional
incompetence to hear and try the suit. (1165-G-H; 1166-A-B(
5. The relief of specific performance is not a further relief to which
the plaintiff is entitled or which he could have sought for against the
G defendant. The defendant was alleged to be a rank trespasser who was in
the process of committing a trespass and was allegedly raising unauthorized
construction over the property neither owned nor legally possessed by him.
Thus, from the point of view of the present defendant, there is no such
defect or infirmity in the relief sought for by the plaintiff as would render
the suit not maintainable and liable to be thrown out at the threshold.
H
( 1172-E-F(
R.C. ARDAWATIYA v. ANIL PANJWANI [R.C. LAHOTI, J.]
1157
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7919 of A
2001.
From the Judgment and Order dated 16.4.2001 of the Rajasthan High
Court in S.B.C.S.A. No. 209 of 2001.
Vijay Hansaria, Ms. Kinklee Barooah and Sunil Kumar Jain for the B
Appellant.
In persons for the Respondent.
The Judgment of the Court was delivered by
R.C. LAHOTI, J. The present lis, having attained the age of I 5 years
by this time, is one harrowing tale of laws' delays causing frustration in the
mind of a suitor who deprived of his property rushed promptly to the Court
for vindicating his rights and seeking protection under the arm of Jaw. He
faced adjournments and adjournments without any substantial progress at the
c
trial in an over-burdened Trial Court, at the lowest rung of the judicial D
hierarchy, unable to spare such time as the individual cases demand so as to
have a firm grip over the progress of each case. Several revisions taken to
the High Court at interlocutory stages of the trial, too contributed to the
delay, adding fuel to the fire of the plaintiffs agony. The record of tardy
proceedings in the Trial Court, at least at the initial stage, reflects the E
defendant's impunity; he felt that he was beyond the reach of the law, though
fortunately such hope of the defendant proved to be only a nightmare. The
case has witnessed even contempt proceedings being initiated. Criminal cases
too have germinated as off-shoot branches. We have heard the learned senior
counsel for the appellant and the respondent appearing in person, controlling
the proceedings firmly and with patience, so as to save them from drifting F
away towards initiation of yet other contempt proceeding. We told the
respondent and the learned counsel for the appellant that we shall do justice,
as duty bound we are, notwithstanding the fact that we feel hurt by the
conduct of the plaintiff respondent, appearing in-person, and in our desire to
do so we have not acceded to the prayer of the learned senior counsel for the G
appellant for withholding the hearing in the appeal until the contempt has
been purged by the respondent as we felt that withholding the hearing in this
appeal would only contribute to further frustration in the parties, add an
undeserved length of life to an already old litigation, and may probably give
rise to other off-shoot proceedings adding to the bulk of ever-mounting arrears
of cases. The root cause of the dispute should first be resolved - we told the H
1158
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A two, and that may probably, we hope, terminate the side issues as well.
Happily we note, at the end of the hearing in appeal and the proceedings in
contempt case that the respondent has felt genuinely repentant, withdrawn all
his allegations constituting insinuation on which the contempt notice is founded
and tendered an unconditional apology with folded hands craving for justice
to be done in the main cause. The contempt proceedings we will deal with
B separately. This judgment determines the dispute as to _civil rights between
the parties fully and finally to the extent to which it can.
Anil Panjwani, the plaintiff-respondent, (hereinafter Panjwani - for short)
filed a suit styled as a suit for 'declaration, possession and permanent
C injunction' against Ramesh Chand Ardawatiya (defendant-appellant,
Ardawatiya - for short). The plaint was presented on 9.2.1987 in the Court
of Additional Munsif, Class I, Jaipur City, West Jaipur. The suit prope1ty is
plot no.2, area 273.03 square yards (61 '6" X 40') described by boundaries in
para 3 of the plaint. Briefly stated, the gist of the plaint averments is that on
1.12.1985 Panjwani entered into an agreement for purchase of the suit property
D for a consideration of Rs. 4500 from one Shri Niwas Vaidhya, the then owner
of the suit property. A document in writing was executed. Rs. 4000 were paid
by way of earnest. Rs. 500 were to be paid at the time of registration. Original
documents relating to the title of the vendor were passed on to Panjwani. On
the date of agreement the plot was lying vacant. In December 1985 Panjwani
E constructed a boundary wall, desirous of raising construction on the plot in
near future. On 8.2.1987, at about 4 p.111., when Panjwani had gone to inspect
the plot, he found a mason raising a hutment and two women sitting there.
On making enquiries, Panjwani learnt that some construction was proposed
to be raised at the behest of Ardawatiya. Neither on that day nor on the
following day Ardawatiya could be found out by Panjwani. The suit was
F filed post-haste on 9.2.1987 for the following reliefs : (i) declaration of
plaintiffs title as owner of the suit plot; (ii) restoration of possession from
the trespasser-defendant to the plaintiff; (iii) mandatory injunction for removal
of the construction raised by the trespasser; (iv) permanent prohibitory
injunction from raising any further construction; (v) costs, and (vi) such other
G relief as the Court may deem fit and proper in the facts and circumstances
of the case and to which the plaintiff may be found entitled.
H
The plaint was accompanied by a prayer for issuance of ad-interim
injunction u·nder Order 39 Rules I and 2 of the CPC preventing the defendant
from raising any construction over the suit property.
-
,,
R.C. ARDAWATIYA v. ANIL PANJWANI [R.C. LAHOTI. J.]
1159
The day on which the plaint was presented, it appears that the presiding A
Judge was on leave and so the matter came to be placed before an in-charge
Judge, may be as per the rules or practice prevalent in the State of Rajasthan.
On an application filed by the plaintiff he directed one Shri Pratap Singh,
Advocate to be appointed as an Advocate Commissioner to visit the suit
property and submit a report as to the factual status thereof. The learned B
Advocate Commissioner visited the site of dispute from 6 to 7 p.m. on
9.2.1987 itself. The plaintiff-Panjwani and his advocate were present. 4 to 5
persons were present on the plot, of whom one was male and others were
females. They refused to interact with the Commissioner. Rather they
threatened the visitors that their heads will be broken if they entered the plot.
The neighbours present apprised the Advocate-Commissioner that a house C
was proposed to be constructed on the plot. The Advocate Commissioner too
formed the same impression by his inspection and evaluation of the site. One
Advocate Mr. Mahender Singh Baghela (unconcerned with any of the parties
and presumably a resident of that locality) happened to be present. The most
material part of the Commissioner's report is a sketch map according to
which the plot was an open piece of land whereon in the north-west corner D
there was a hut. Some pieces of stone, of bricks and a heap of sand were
lying in different parts of the plot. There was a water tap. The plot was
surrounded by a boundary wall.
The persons present on the plot and the neighbours who had assembled E
there refused to sign on the report of the Commissioner though requested to
do so. The plaintiff-Panjwani, his advocate - Shri Ram Nath Sharma, and
Advocate Shri Mahender Singh present at the site, subscribed to the report.
What is significant to note in the Commissioner's repo1t is that there
was no construction at the site and ce1tainly there was no house, and no p
habitation, much less any person or family having been found as residing in
any manner on the plot. The grass hut was apparently for use by labourers.
On 10.2.1987 the defendant appeared in the Court through his counsel.
However, the Presiding Officer was on leave. Though the defendant was
served with summons in the suit as also with notice on the prayer for the G
grant of ad-interim injunction, no written statement or reply was filed on
10.2.1987. The presiding officer was on leave on this day also. The matter
was placed before a Judge in-charge. He directed status quo as to the suit
property to be maintained restraining the defendant not to proceed with any
construction ahead. Thereafter, on 15 dates of hearing the matter was simply H
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[2003] 3 S.C.R.
A adjourned without the defendant having filed any written statement or reply.
On 24.2.1987 the plaintiff moved a second application for appointment
of yet another Commissioner to carry out inspection of the suit property in
the presence of both the parties. It appears that the purpose of the appointment
of the second Commissioner was to have a bi-party inspection carried out as
B the inspection carried out on 9.2.1987 by Shri Pratap Singh, Advocate
Commissioner was in the absence of the defendant, and there was some
element of urgency involved in the inspection on that day so as to bring on
the record of the Court the status of the property on the date of the institution
of the suit. Shri S.K. Kataria, Advocate, now appointed as Advocate
C Commissioner, carried out inspection of the suit property on 25.2.1987 in the
presence of the plaintiff and a representative of the defendant, probably his
special power of attorney holder. Shri Kataria also drew up a sketch of the
suit plot incorporated in his repo11. The identity of the plot is the same but
with a little change as to its status. Building material consisting of bricks,
sand and stones were lying on the plot. In the north-west corner, instead of
D the hut, a temporary kitchen made of bare bricks had come up and in the
north-east corner covering an area of 6x 12 ft. two small rooms and a platform
had come up which were newly constructed. The report drawn up by the
Commissioner bears the signature of the plaintiff and the representative of
the defendant. Here itself we may observe that the second report by the
E Advocate Commissioner, the correctness whereof has not been disputed by
the defendant at any stage of the proceedings, is prima facie suggestive of
two inferences: firstly, that even till the date of bi-party inspection carried out
by the Advocate Commissioner the plot was a vacant piece of land on which
construction had just commenced and was in the process of coming up; and
secondly, the defendant had proceeded with construction work in spite of the
F interim order of the Court directing status quo as to the suit property to be
maintained and specifically restraining the defendant from proceeding with
the construction ahead.
G
On 4.6.1988, under the administrative orders of the District Judge, the
case came to be transferred to the Court of an Additional Judge. Thereafter,
the case was adjourned on 29 dates of hearing, il'gain without the filing of
written statement or reply. At least on 3 dates of hearing the defendant was
allowed adjournment on payment of costs of Rs. 40, Rs. 50 and Rs. 250. On
29. l 0.1992 the defendant and his counsel absented from appearance in Court.
The case proceeded ex-parte. On 24.7. 1993, the date appointed for plaintiff's
H ex-parte evidence, the defendant filed an application under Order 9 Rule 7 of
-
••
R.C. ARDA WATIY A v. ANIL PANJWANI (R.C. LAHOTI. J.]
1161
the CPC seeking setting aside of the ex-parte proceedings. On 6.9.1993 the A
case came to be transfen-ed to another Court under the administrative orders
of the District Judge. On 11.5.1994 the Trial Court passed a detailed order
holding that the defendant had completely failed in assigning any good cause
for his previous non-appearance and therefore the application under Order IX
Rule 7 of the CPC was liable to be dismissed. It was dismissed accordingly. B
The plaintiff examined three witnesses in ex-parte evidence including himself
and his vendor. Though such ex-parte evidence was recorded piecemeal on
at least three dates of hearing, the defendant or his counsel were not present
and did not participate in the proceedings. The arguments of the counsel for
the plaintiff were heard and judgment was reserved. In-between the defendant
had preferred a Civil Revision No.1202/94 laying challenge to the order C
dated 11.5.1994. Vide order dated 20.3.1995, the Civil Revision filed by the
defendant was directed to be dismissed by the High Court.
On 25.3.1995, the defendant moved an application labelled as one under
Order 18 Rule 17 of the CPC submitting that the defendant had not crossexamined the plaintiffs witnesses because of the pendency of his civil revision D
in the High Court and as the civil revision was dismissed he may be given
opportunity of cross-examining the plaintiff's witnesses. On 2.5.1995, the
Court allowed defendant's application subject to payment of costs and subject
to the term that before the cross-examination is commenced the plaintiff will
have a right, if he so desires, to put to his witnesses additional questions by E
way of examination-in-chief.
At this stage, the ingenuinity of the defendant-appellant comes into
play. On 2.5.1995, he moved an application proposing to place on record a
'written statement under Order 8 Rule 6A ofCPC'. It was alleged therein that
the plaintiff was claiming the suit premises under an agreement dated 1.12.1985 F
entered into by Shri Niwas Vaidhya based on letter of allotment dated
26.6.1980, issued by Sindhunagar Co-operative Society Ltd., which letter of
allotment is false and forged and, therefore, it has become necessary to have
declared the letter of allotment dated 26.6.1980 and the agreement dated
1.12.1985 null and void. Copies of the application seeking leave of the Court
to file the written statement by way of counter claim and the accompanying G
counter claim, were delivered to the plaintiff's counsel, calling upon him to
file a reply.
While the above proceedings were going on in the trial Court, the order
dated 2.5.1995 was put in issue by the plaintiff-Panjwani by filing civil H
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[2003] 3 S.C.R.
A revision in the High Court. By order dated 16.1.1996 the revision was allowed.
The order dated 02.05.1995 was set aside. However, the High Court directed
the President and Secretary of the Society which had allotted the plot to be
examined as court witnesses along with the relevant records of the society.
A marathon race began between the Court and the Society. The Couit was
B seeking production of the record so as to enable recording of the statements
of the office-bearers of the society as court witnesses to comply with the
directions of the High Court. Several past officers of the society and their
successors, as were ascertainable were summoned one after other. None
admitted the availability of the records with him and each one went on
passing on the buck to the other. The office-bearers of the Cooperative
C Depa1tment and the administrator appointed in supercession of the society
were also summoned but the records were just not traceable. At the end, on
21.12.2000 after making a reference to the High Court soliciting directions,
the Trial Court held that the direction earlier made by the High Court was not
possible of compliance for want of records. The evidence was closed as
permitted by the High Court in its order dated 11.10.2000 responding to the
D reference, also directing the case to be decided within three months in view
of the previous delay. The arguments were heard. At that stage the defendant
moved an application seeking leave of the Court for examining his witnesses.
In view of the peculiar facts and circumstances of the case, especially the fact
that the application was highly belated, and that too in the background of the
E event that his application under Order 9 Rule 7 of the CPC was rejected upto
the High Couit and his counter-claim was not taken on record, the Court, by
order dated 4.11.2000, turned down the defendant's prayer for production of
his evidence.
The order dated 4.11.2000 whereby the Coult had refused the defendant
F an opportunity of adducing evidence was put in issue by the defendant by
filing a revision in the High Court. The defendant failed to produce any order
of stay from the High Court. The Trial Court noticed in its order dated
21.12.2000 the previous order of the High Court dated 11.10.2000 whereby
the High Coult had directed the case to be disposed of within a period of
G three months, which time-limit was coming to an end. By judgment and
decree dated 8.1.200 I the Trial Coutt directed the suit filed by the plaintiff
to be decreed. The plaintiff was declared owner of the suit plot and the
defendant was directed to restore possession of the plot within a period of
one month from the date of the decree failing which the plaintiff would be
entitled to have the encroachment and the illegal construction whatever be of
H the defendant, to be demolished and removed at the cost of the defendant.
R.C. ARDAWATIYA v. ANIL PAN.IWANI [R.C. LAHOTI. J.]
1163
The defendant preferred First Ap.peal against the judgment and decree A
dated 8.1.200 I which was registered as FA No.3/200 I. It was heard and
dismissed by Fifth Additional District Judge, Jaipur, by judgment and decree
dated 7.3.2001. The defendant preferred Second Appeal which was dismissed
in limine on 16.4.2001, by the High Court forming an opinion that the appeal
did not involve any substantial question of law within the meaning of Section B
I 00 of the CPC. An application under Order 41 Rule 27 of the CPC filed by
the defendant before the First Appellate Court seeking production of certain
documents by way of additional evidence was rejected by the First Appellate
Court as in its opinion no case for admission of additional evidence was
made out. The High Comi found no fault with the view so taken by the
learned Additional District Judge.
This SLP by the defendant has been filed on 28.4.2001. On 16.7.2001
a two-Judges Bench of this Court directed notice in SLP to be issued. On that
day the plaintiff-Panjwani too was present in-person, having filed a caveat
opposing the special leave petition. The Cou11 allowed him time to file counterc
affidavit and ordered 'status quo as of that day to continue.'
D
The hearing in this court has an unpleasant flavour as there have been
contempt proceedings drawn up as an off-shoot to this appeal and the case
has shifted for hearing amongst different Benches.
We have heard the learned senior counsel for the petitioner and the E
respondent present in-person with the understanding that the appeal shall be
heard and disposed of finally to which they have agreed.
The learned senior counsel for the appellant has made several
submissions which can be grouped into three: (I) that the Civil Court did not
have jurisdiction to try the suit and the plaintiff should have been relegated F
by the Trial Court to pursue his remedy before the authority/tribunal competent
to adjudicate upon such dispute under the provisions of the Rajasthan
Cooperative Societies Act, 1965; (2) that even if the defendant was being
proceeded ex-parte his counter-claim should have been taken on record and
heard and decided on merits; failure to do so has occasioned a failure of G
justice; and (3) that even in the proceedings ex-pa11e against the defendant
the plaintiff was not entitled to the decree as prayed for.
We find, as would be dealt with hereinafter, the first two pleas devoid
of any merit, but pa11ial merit in the last plea.