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Judgment
Sanjay Karol, J—Plaintiffs - petitioners herein, are aggrieved of the order dated 25.2.2015, passed by Civil Judge (Senior Division), Kinnaur at Reckong Peo, District Kinnaur, H.P. in Case No. 11-R/1 of 1999/2014, titled as Jumla Jamindaran Village Pangi & others v. Jumla Jamindaran Village Telangi & others, whereby defendants''/respondents'' application, filed under Order 6 Rule 17 C.P.C., seeking amendment of the written statement, stands allowed.
Reasons for allowing the same are reproduced herein under:
"I have heard the ld. Counsel for the parties and have gone through the record file carefully. It is admitted fact that the State of H.P. arrayed as party after passing the order by the Hon''ble High Court and defendant moved the present application to take the legal objection as the suit is time barred and want to make some amendment in para No. 3 of the plaint that the Khewatdarans have customary rights of the passage having construct by them by cutting rocks and kucha dhank and using the same from the time immemorial. The present suit has been filed for declaration that the land comprised in khata khatauni No. 70 min/138 min, Khasra Nos. 1, 3, 7, 7/2 and 8 falls within the area of Check Pangi and the Right holders of Pangi have been exercising their customary rights of collecting newza, fuel wood, grass and grazing cattle from time immemorial, openly, peacefully, continuously and without any interruption and the order of the revenue Settlement Collector dated 2.9.1983 is valid, illegal, and against the law and defendants interfering in their rights of the aforesaid land. The defendant No. 1 want to amend his written statement to the fact that there is passage which is being used by the inhabitants of village Telangi from the time immemorial, though, the amendment is belated stated, but it is settled law that amendment can be made even in the appeal and moreover, the amendment is in the shape of legal objection and explanation in nature and I am of the opinion that no prejudice is going to be caused to the right of the plaintiff as they claimed independent right over the aforesaid khasra Nos. Even other party can compensate by way of cost. Thus, the application stand allowed subject to cost of Rs. 1000/-. Amended written statement is taken on record. Let file be put up for replication and framing of issues if any for 10.3.2015."
In the year 1999 plaintiffs filed a suit for declaration seeking order dated 2.9.1983 passed by the Settlement Collector, Kinnaur to be void, illegal, arbitrary, unjust, without jurisdiction and that the entries with respect to the suit land stands wrongly reflected in the territories of Up-Mohal Telangi in place of Mohal Pangi.
Plaint reflects the parties to have been litigating since the year 1984. In para - 3 of the plaint, plaintiffs pleaded that prior to the year 1962, the entire area falling between the Old Hindustan Tibet Road and Satluj Road was a compact block with a natural boundary of kacha dhank and that village Telangi was situated on the other side with its residents having no access to the suit land. Whereas in response, defendants pleaded the boundary of village Pangi and Telangi to be Bokhdhar and not kacha dhank.
The chequered history of this case reveals that the judgments and decrees passed by the courts below stood reversed by this Court and eventually with the impleadment of the State of Himachal Pradesh as a party/defendant, on remand, the matter is now pending before the trial Court. At such stage, on 25.9.2014, defendants filed the application in question, seeking the following amendments to their written statement:
"(i). "That the suit of the plaintiffs is hopelessly time barred since the plaintiffs are challenging the order of settlement Collector decided on 02.09.1983 in the suit being filed on 23rd day of October, 1999, hence same is liable to be dismissed on this score only."
(ii) "There is a passage having constructed by cutting rocks through Kacha Dhank which have been used since time immemorial for to and fro to the suit land by khewatdarans of village Telangi for exercising their customary rights."
Application stood vehemently opposed inter alia on the ground that the issue of access through the kucha dhank stood adjudicated by the District Judge, hence such plea being already in the knowledge of the defendants, cannot be allowed to be incorporated after a period of more than fifteen years. The endeavour was only to delay the proceedings.
Mr. Suneet Goel, learned counsel for the petitioners assails the order on the grounds that: (i) amendment sought to be incorporated is hopelessly delayed; (ii) alleging the same would change the nature of the controversy between the parties; (iii) which, in any case, is not necessary for determining the controversy in issue; (iv) plea sought to be incorporated was well within the knowledge of the parties, hence amendment of the written statement is unwarranted; and (v) in any event, order which is unreasoned, is based on conjectures and surmises. He seeks reliance upon the decisions rendered by Hon''ble the Supreme Court of India in Voltas Limited Vs. Rolta India Limited, AIR 2014 SC 1772 : (2014) AIRSCW 1503 : (2014) 1 ARBLR 343 : (2014) 3 JT 197 : (2014) 2 SCALE 301 : (2014) 4 SCC 516 ; Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and Others, (2013) 4 ABR 886 : (2013) 5 AD 449 : AIR 2013 SC 3188 : (2013) 116 CLT 357 : (2013) 9 JT 98 : (2013) 2 RCR(Civil) 965 : (2013) 6 SCALE 181 : (2013) 9 SCC 485 : (2013) AIRSCW 3430 ; J. Samuel and Others Vs. Gattu Mahesh and Others, (2012) 2 CTC 94 : (2012) 1 JT 169 : (2012) 167 PLR 93 : (2012) 1 RCR(Civil) 903 : (2012) 1 SCALE 330 : (2012) 2 SCC 300 : (2012) 1 UJ 588 : (2012) AIRSCW 1035 : (2012) 1 Supreme 568 as also a Coordinate Bench of this Court in Civil Revision No. 3 of 2015, titled as Raj Kumar Mehra & another v. Surinder Mohan, decided on 23.4.2015.
On the other hand Mr. Bhupinder Gupta, learned Senior Counsel, ably assisted by Mr. Janesh Gupta, Advocate, defends by stating that the order being self explanatory, cannot be said to be unreasoned. As is held by the Court, amendment being clarificatory in nature does not prejudice the plaintiffs in any manner. In support, he relies upon the decisions rendered by Hon''ble the Supreme Court of India in Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., AIR 2006 SC 2832 : (2006) 7 JT 139 : (2006) 7 SCALE 517 : (2006) 6 SCC 498 : (2006) 4 SCR 259 Supp : (2006) AIRSCW 3956 : (2006) 5 Supreme 943 ; Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, AIR 2007 SC 1663 : (2007) 3 CTC 400 : (2007) 5 JT 476 : (2007) 5 SCALE 831 : (2007) 5 SCC 602 : (2007) 6 SCR 306 : (2007) AIRSCW 2545 : (2007) 3 Supreme 582 ; North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., AIR 2008 SC 2139 : (2012) 281 ELT 161 : (2008) 4 JT 587 : (2008) 6 SCALE 254 : (2008) 8 SCC 511 : (2012) 28 STR 417 : (2008) AIRSCW 3159 .
Having considered rival contentions, Court is of the considered view that the impugned order lacks reasons. There is no discussion as to how the amendment is clarificatory in nature. The basis of forming an opinion that "no prejudice is going to be caused" cannot be inferred from the order. The objections raised by the plaintiffs in their response have also not been dealt with in any manner.
A Constitution Bench of Hon''ble the Supreme Court of India has laid down in Krishna Swami Vs. Union of India and another, AIR 1993 SC 1407 : (1992) 5 JT 92 : (1992) 1 SCALE 484 : (1992) 4 SCC 605 : (1992) 1 SCR 53 Supp that if a statutory or public authority/functionary does not record reasons, its decision would be rendered arbitrary, unfair, unjust and violative of Articles 14 and 21 of the Constitution. Reasons are links between the material, the foundation for their erection and the actual conclusions, demonstrative of the mind of the maker, activated and actuated with the rational nexus and synthesis with the facts considered and the conclusions reached. The proposition would apply with a greater vigour to judicial orders.
In the light of decision rendered in Raj Kumar Mehra (supra), Court is of the considered view that the impugned order needs to be quashed and set aside. In the said decision, relying upon the decision rendered by Hon''ble the Supreme Court of India in Kranti Associates Pvt. Ltd. and Another Vs. Sh. Masood Ahmed Khan and Others, (2010) 9 JT 362 : (2010) 9 SCC 496 : (2010) 10 SCR 1070 : (2010) 8 UJ 4022 , Court held that the judgment/order without reasoning causes prejudice to the person against whom it is pronounced, as the litigant is unable to know the ground which weighs with the Court in rejecting or accepting the claim of the party. It also causes impediments in his taking adequate and appropriate grounds before the higher Court in the event of challenge to the same.
In the instant case, it cannot be said that interest of justice stands advanced with the application being allowed without assigning any reasons.
Hence the impugned order dated 25.2.2015, passed by Civil Judge (Senior Division), Kinnaur at Reckong Peo, District Kinnaur, H.P. in Case No. 11-R/1 of 1999/2014, titled as Jumla Jamindaran Village Pangi & others v. Jumla Jamindaran Village Telangi & others, is set aside with a direction to the Court below to consider and decide the application afresh in accordance with law.
Needless to add, this Court has not expressed any opinion on the merits of the matter and has also not gone into the binding effect of the decisions referred to above, leaving it open for the Court below to consider and decide the application on its own merits.
Parties are directed to appear before the Court below on 14.10.2015. An endeavour shall be made to dispose of the matter expeditiously. Trial expedited. Be completed within one year. Parties to fully cooperate. Records be immediately sent back.
Petition stands disposed of accordingly, as also pending applications, if any.