Jiwat Ram vs Bharti Telenet Limited And Others

Sandeep Sharma, J

Instant petition filed under Art. 227 of the Constitution of India, is directed against order dated 15.3.2018 passed by learned Civil Judge (Junior Division), Anni,

District Kullu, Himachal Pradesh, in CMA No. 8-6/2018 in Civil Suit No. 33-1/2009, titled Jiwat Ram vs. M/s Bharti Telenet Ltd. and others, whereby an application filed

by the petitioner-plaintiff (hereinafter, ‘plaintiff’) under Order XVIII, rules 17 and 17A of the Code of Civil Procedure, came to be dismissed.

For having a bird’s eye view of the matter, necessary facts as emerge from the record are that the plaintiff filed a suit for declaration against the

respondents/defendants (hereinafter, ‘defendants’) for declaration that the mutual agreements/lease deeds (if any) executed by defendants Nos. 7 and 8 in

favour of defendants Nos. 1 to 5 authorising them to use and occupy the suit land as comprised in Khewat Khatauni No. 463/481, Khasra No. 297, situate in Village

and Post Office Kandagai, Phati Biungal, Kothi Sirigarh, Tehsil Anni, District Kullu, Himachal Pradesh, for installation and erecting TVS Towers/ Cellular Towers are

null and void and further for restraining defendants No.1 to 7 from further changing the nature and character of the suit land by installing any other new TVS tower

over the suit land to improve and widen their network services with consequential relief of mandatory injunction directing defendants Nos. 1 to 5 to remove the TVS

Towers (Cellular Towers) from the suit land and to demolish entire superstructure raised and affixed on the above land at their own cost and expenses.

Plaintiff averred in the plaint that he has purchased the entire property/land with orchards etc. from Shri Devi Singh (previous owner) through a registered sale

deed and in this regard, mutation of sale No. 2120 stands duly attested and sanctioned in his favour and as such, he is lawful owner with possession of the suit land,

as delivered to him by the original owner on the spot. Plaintiff averred that Shri Devi Singh had engaged his neighbourer to look after and manage the affairs of his

land and orchard as he could not maintain the land and orchard on account of his Government service, however, defendants Nos. 1 and 2 taking undue advantage of

absence of Shri Devi Singh, started leveling and developing the site for laying TVS towers on the land. Shri Devi Singh after having been informed by his well-wisher,

reached the site and found that the TVS towers had been erected. Manager of defendants Nos. 6 and 7 deployed on the spot showed ignorance and inability with

regard to authorization to install the TVS towers and other equipments over the land of Devi Singh, as such, Devi Singh was left with no other option but to serve the

defendants with legal notice but since no response was received from the defendants, suit was filed.

It may be noticed here that since the present plaintiff has purchased the suit land from previous owner, he after having sought necessary permission to amend the

plaint, is now prosecuting the same as original owner on the same cause of action.

Aforesaid claim put forth by the plaintiff came to be refuted by the defendants, who in their written statement claimed that Smt. Meena Devi, possessor/owner of

the land had executed a mutual agreements/lease deeds dated 17.11.2017 allowing them to construct the communication towers. Defendants Nos. 3, 4 and 7 claimed

that defendant No. 8(Meena Devi) was exclusive owner-in-possession of the suit land. Aforesaid defendants further claimed that as per revenue record, Meena Devi

(defendant No. 8) is co-owner and as such, she is/was within her right to execute lease deed with defendants No.3, 4 and 7, authorizing them to install/erect towers.

Pleadings adduced on record by respective parties reveal that on the basis of aforesaid pleadings, parties led their evidence but, before final judgment could be

pronounced by learned trial Court, an application under the provisions of Order XVIII, rules 17 and 17A of the Code of Civil Procedure for production of evidence not

adduced/filed or which could not be produced despite due diligence, came to be preferred by the plaintiff. However the fact remains that such application was

rejected by learned trial Court vide order dated 15.3.2018. In the aforesaid background, plaintiff has approached this Court by way of instant proceedings praying

therein to set aside aforesaid order and to issue necessary directions to the defendants to produce the documentary evidence i.e. disputed lease deeds/agreements

executed inter se them.

Having heard learned counsel for the parties and perused the material available on record, vis-Ã -vis reasoning assigned by learned Court below, while passing

impugned order, this Court finds that primarily the application for production of the documents having been filed by the plaintiff, came to be dismissed on the ground

of inordinate delay. Learned Court below, while passing impugned order, has further held that there is no plausible explanation rendered on record by the plaintiff that

why he failed to produce the documents sought to produced, despite due diligence. Since learned Court below, having taken note of the various judgments rendered

by Hon'ble Apex Court, held the application filed by the plaintiff to be maintainable coupled with the fact that no challenge by the defendants has been laid to the

aforesaid findings returned by learned Court below, there is no occasion for this Court to go into that aspect of the matter.

Careful perusal of the plaint clearly reveals that the plaintiff at the time of filing of the suit in question, was not sure with regard to execution of mutual

agreements/lease deeds, if any, inter se defendants, but he after having noticed erection of towers on the suit land, found that defendants No. 1 to 5 have

unauthorizedly erected /installed the towers over the suit land on the strength of some mutual agreements/lease deeds, executed inter se defendants No.1 to 5 and

defendants No. 8 and 9. It clearly emerges from a reading of the plaint that till the time of filing of the suit, plaintiff was not in possession of the mutual

agreements/lease deeds executed by defendants Nos. 8 and 9 in favour of defendants No.1 to 5 but defendants in their written statement admitted the factum with

regard to execution of mutual agreements/lease deeds sought to be declared null and void in the present suit. Though, in the case at hand, defendants Nos. 8 and 9

claimed themselves to be in exclusive possession of the suit land but in what capacity, is not clear. No doubt, pleadings available on record suggest that the factum

with regard to execution of mutual agreements/lease deeds, sought to be declared null and void, definitely had come to the knowledge of the plaintiff after filing of the

written statements by the defendants, but once the factum with regard to execution of sale deed /mutual agreement inter se defendants was duly admitted by the

defendants in their written statement, there was no requirement at that stage for the plaintiff to move an application, seeking therein direction to the defendants to

produce the mutual agreements/lease deeds. Written statements having been filed by the defendants, especially defendants Nos. 1 to 5 clearly reveal that they

proceeded to erect/install towers on the suit land on the strength of mutual agreements/lease deeds executed in their favour by defendants Nos. 8 and 9, who claim

themselves to be owner-in-possession of the suit land.

True it is that immediately after filing of the written statement, plaintiff could have filed an appropriate application seeking production of document as referred

above but omission, if any, on his part to do the same at that time, cannot be said to be a bar for him to move an application seeking direction to the defendants to

produce the documents after closure of the evidence, especially when defendants Nos. 1 to 5 , who otherwise took a specific stand in their written statement that they

constructed towers after having entered into mutual agreements/lease deeds with defendants No. 8 and 9, failed to place the same on record by way of evidence.

Since specific stand taken by the defendants in their written statement is/was that they erected/installed towers after being authorised by way of mutual

agreements/lease deeds executed in their favour by defendants No. 8 and 9, onus is/was upon the defendants to prove such documents by producing the same in

evidence.

There is substantial force in the argument of Mr. Suneet Goel, Advocate, appearing for the plaintiff that since the factum with regard to execution of mutual

agreements/lease deeds sought to be declared null and void stood admitted by defendants, plaintiff did not find it appropriate to move an appropriate application

seeking production of documents in question after filing of the written statement, presuming that the same would be led in evidence by the defendants. Since the

defendants failed to lead any specific evidence, if any, with regard to execution of mutual agreements/lease deeds inter se defendants No. 8 and 9 and defendants No.

1 to 5, plaintiff rightly, immediately after closure of evidence of the defendants, moved an appropriate application under Order XVIII, rules 17 and 17A CPC, seeking

therein direction to produce documents in issue. Since the application in question came to be filed immediately after closure of the evidence of the defendants,

learned trial Court erred in holding the application to be delayed one. Since the plaintiff was not sure with regard to execution of mutual agreements/lease deeds inter

se defendants No.1 to 5 and defendants Nos. 8 and 9, he, while praying for mandatory injunction against defendants directing them to remove the towers/super-

structures from the suit land, also sought declaration that the mutual agreements/lease deeds, if any, arrived inter se defendants be declared null and void. However,

as has been observed herein above that once the factum with regard to execution of mutual agreements/lease deeds stood admitted by the defendants, they, with a

view to prove the mutual agreements/lease deeds, in accordance with law, ought to have placed the same on record to prove their authority to erect/install towers on

the suit land. Since, defendants despite having admitted the factum with regard to execution of mutual agreements/lease deeds, sought to be declared null and void,

failed to produce the same in evidence, plaintiff rightly filed an application seeking therein direction to the defendants to produce the same after closure of the

evidence as such, it cannot be said that the plaintiff was not diligent or despite due diligence, he failed to file an appropriate application at an appropriate stage.

Moreover, no prejudice, if any, would be caused to either of the parties, if necessary direction is issued to the defendants to produce the mutual agreements/lease

deeds, arrived inter se them, especially when factum with regard to execution of mutual agreements/lease deeds inter se defendants stands admitted in their written

statements, rather not placing the same on record would cause irreparable damage to the plaintiff, who apart from praying for mandatory injunction has also sought

declaration that the mutual agreements/lease deeds, if any, inter se defendants No. 8 and 9 and defendants No.1 to 5 are null and void.

Consequently, in view of above, present petition succeeds and order dated 15.3.2018 passed by learned Civil Judge (Junior Division), Anni, District Kullu,

Himachal Pradesh, in CMA No. 8-6/2018 in Civil Suit No. 33-1/2009 is set aside. Application filed by plaintiff under Order XVII, rules 17 and 17A CPC is allowed and all

the defendants are directed to produce the mutual agreements/lease deeds entered inter defendants No. 8 and 9 and defendants No.1 to 5, qua the suit land, within a

period of two weeks, enabling learned trial Court to proceed further with the suit. Needless to say, both the parties shall be allowed opportunity to lead their evidence

in this behalf.

List on 20.4.2020, on which date, parties through their learned counsel are directed appear before learned Court below.

All pending applications also stand disposed of.