Point of Law : If procedural violation does not seriously cause prejudice to adversary party, Court must lean towards doing substantial justice.

ORDER :

1. Learned Trial Court vide order dated 6.10.2021 dismissed an application moved by the defendant- petitioner herein under Order 8 Rule 1A(3) read with Section 151 of the Code of Civil Procedure for placing on record memo of appeal and certain order sheets of RSA No. 574 of 2008 instituted before this Court. The order has been questioned by the defendant in this petition.

2. A suit was filed by Tej Singh plaintiff (respondent herein) seeking a decree for permanent prohibitory injunction against Roomi Ram defendant (petitioner herein) in respect of the suit land measuring 39-09-00 bighas, comprised in khata khatauni No. 44/51, 42/49, situated in Mohal Andwas, Pargana Himgiri, Tehsil Salooni, District Chamba. In the alternative, a decree for possession was also prayed for. It was mentioned in paras 3 & 4 of the plaint that defendant Roomi Ram had earlier filed a Civil Suit for declaration and permanent prohibitory injunction. This Civil Suit bearing No. 154 of 2001, titled as Roomi Ram versus Tej Singh & others was regarding the same suit land as involved in the present lis. That the said Civil Suit was dismissed by the Civil Judge (Sr. Divn.) Chamba vide judgment and decree dated 29.9.2007. Roomi Ram’s appeal against this judgment and decree was dismissed on 14.7.2008. It was also stated in the plaint that Roomi Ram had preferred a Regular Second Appeal alongwith an application under Section 5 of the Limitation Act before this Court but the application under Section 5 of the Limitation Act was still pending and had not been adjudicated upon. It was further pleaded that this meant that the Regular Second Appeal had not been registered or entertained by this Court. Respondent/plaintiff Tej Singh also pleaded in the penultimate para of the plaint that previously instituted suit between the same parties for declaration regarding the same subject matter stood decided and no other matter regarding the same cause of action was pending between the parties in any Court. Paras 3, 4 and 11 of the plaint read as under:-

“3. That defendant Roomi Ram earlier filed a suit for declaration and permanent prohibitory injunction vide Civil Suit No. 154/01 titled as “Roomi Ram versus Tej Singh & others, regarding the same suit land which was dismissed by Ld. Civil Judge (Sr. Divn.) Chamba vide judgment and decree dated 29/09/2007 and vide that judgment the present plaintiff Tej Singh is declared/found owner in possession of the suit land. Thereafter the said Roomi Ram (Present Defendant) filed an appeal before the Ld. District Judge Chamba against the said judgment and decree passed by the Ld. Civil Judge (Sr. Divn.) Chamba vide Civil Appeal No. 10/2008/07 and same was dismissed vide judgment and decree dated 14/07/2008.

4. That defendant Roomi Ram filed a regular second appeal alongwith an application under Section 5 of Limitation Act in the Hon’ble High Court of H.P. The application under Section 5 of Limitation Act is still pending and same has not been decided yet as such appeal has not been registered or entertains.

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11. That no suit regarding same cause of action is pending before any Court of law or decided earlier except the present suit. However, suit for declaration of the same subject matter has been decided and detail of the said suit has already been given in para No. 3 & 4 in the plaint.”

On the above submissions, the suit was instituted by Tej Singh against Roomi Ram. In his written statement, Roomi Ram denied the assertions made in the plaint. He also denied that Regular Second Appeal preferred by him before this Court had not been registered.

3. Parties led evidence in support of their respective contentions. The matter was fixed for arguments. After hearing the submissions the case was fixed for pronouncement of order on 20.6.2019.

It appears from the record that order was not announced and the matter was perhaps adjourned again for arguments. On 27.7.2019 petitioner/defendant Roomi Ram moved an application under Order 8 Rule