Prabhu Lal and Others vs Jamna Lal and Others

Arun Bhansali, J.—This second appeal u/s 100 CPC is directed against judgment and decree dated 07.11.2006 passed by Additional District Judge No. 1, Bhilwara, whereby, the appeal filed by the appellants against judgment and decree dated 25.03.2004 passed by Civil Judge (Junior Division), Kotadi, District Bhilwara has been dismissed.

The facts in brief may be noticed thus: the respondents filed a suit for declaration and permanent injunction against the appellants, inter alia, with the averments that there is a temple of Murti Bihari Ji Maharaj at village Rased, whose Pujaries were plaintiffs'' ancestors and presently the plaintiffs; the Khudkast land of the said idol was situated at village Rased, which was being cultivated by the plaintiffs'' ancestors in return for the Sewa Puja and the income was being utilized for Bal Bhog in the temple; it was claimed that as per orders of the State Government, the names of the Pujaries have been deleted from the Khudkast lands of the temples and, therefore, the defendants are interfering in the Sewa Puja of the temple and are intending to take forcible possession, therefore, a declaration was sought that the plaintiffs be declared as Pujaries of the temple and that the defendants have no right to interfere in the Sewa Puja of the temple; injunction was sought that the defendants be restrained from interfering in the Sewa Puja and utilizing the agricultural lands.

An application u/s 151 CPC was filed by the defendants, which was rejected by the trial court and whereafter 54 opportunities were granted to file the written statement; however, the same was not filed and consequently, the opportunity to file written statement was closed and the matter was fixed for the evidence of the plaintiffs, wherein, statements of PW-1 were recorded and as no one was present on behalf of the defendants to cross-examine, the same was closed; whereafter, an application under Order XVIII, Rule 17 CPC was filed, which was rejected by the trial court, whereafter, three witnesses were examined, who were cross-examined by the defendants and the evidence was closed reserving the right of rebuttal; the suit was fixed for evidence of defendants, however, the defendants were not present and the counsel pleaded no instructions and, therefore, the suit was ordered to be proceeded under Order XVII, Rule 2 CPC.

After hearing the parties, the trial court partly decreed the suit ex parte and declared that the plaintiffs were hereditary Pujaries of the temple and the defendants have no right to interfere with the said right and the right to cultivate the agricultural land; the prayer regarding permanent injunction was rejected.

Feeling aggrieved, the plaintiffs and the defendants both filed appeals.

After hearing the parties, the first appellate court dismissed the appeal filed by the appellants and allowed the appeal filed by the plaintiffs and granted permanent injunction against interference.

It is submitted by learned counsel for the appellants that the trial court was not justified in first closing the opportunity to file written statement and thereafter proceeding under Order XVII, Rule 2 CPC, which has resulted in grave injustice to the appellants; it was further submitted that the first appellate court also did not pay any heed to the plea raised by the appellants and, therefore, the appeal deserves to be admitted.

Learned counsel for the respondents submitted that the appeal does not involve any substantial question of law; the appellants were given sufficient opportunity by the trial court, which they failed to avail and it cannot be said that the trial court committed any mistake in proceeding ex parte against the appellants; it was also submitted that another appeal arising out of the same appellate judgment, whereby, the appeal filed by the respondents herein was allowed, Civil Second Appeal No. 01155/2007 was preferred by the appellants, however, the said appeal has been dismissed as time barred by this Court on 27.07.2007.

I have considered the rival submissions.

The conduct of the appellants in not filing the written statement despite grant of 54 opportunities by the trial court; not cross-examining PW-1; cross-examining three witnesses; thereafter not producing any evidence and absenting thereafter clearly indicates the negligence and callous attitude on the part of the appellants and, therefore, it cannot be said that the trial court was not justified in proceeding under Order XVII, Rule 2 CPC.

The principles of natural justice and principles relating to grant of fair opportunity cannot be stretched to such an extent that it results in injustice to other side; the conduct of the appellant as noticed hereinbefore writs large and to seek further opportunity in the said circumstances is essentially doing violence to the principles of natural justice, which even otherwise, are not one way traffic only.

In view of the above, the appeal does not involve any substantial question of law so as to require admission. Consequently, the appeal is dismissed. No costs.