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2010 Supreme(P&H) 1988
PUNJAB & HARYANA HIGH COURT
Rakesh Kumar Jain, J.
Baghel Singh
Versus
Dilbagh Singh
CR No. 4193 of 2010,
Decided On : JULY 8, 2010
The provisions requiring filing of duplicate copy of the plaint and affidavit are directory and not mandatory, and the stage of final adjudication can be considered in allowing such applications.
Headnote:
CPC - Civil Procedure Code - Court allows bringing duplicate copy of plaint and affidavit - Plaintiffs filed suit for declaration of ownership and possession of land - Defendants challenged the order - Court relied on Supreme Court judgment and allowed the application compensating the defendants with costs
Fact of the Case:
Plaintiffs filed suit for declaration of ownership and possession of land, and for joint possession and permanent injunction against the defendants. After 8 years of trial, defendants filed an application to bring on record duplicate copy of the plaint and affidavit.
Finding of the Court:
The Court allowed the application based on the Supreme Court judgment and the stage of final adjudication, compensating the defendants with costs.
Issues: Defendants challenged the order allowing the plaintiffs to bring on record duplicate copy of the plaint and affidavit.
Ratio Decidendi: The Court relied on the Supreme Court judgment stating that the provisions requiring filing of duplicate copy of the plaint and affidavit are directory and not mandatory, and considered the stage of final adjudication as a factor in allowing the application.
Final Decision: The Court upheld the order allowing the plaintiffs to bring on record duplicate copy of the plaint and affidavit, compensating the defendants with costs.
Rakesh Kumar Jain, J.
1. This revision petition is at the instance of defendants who have challenged order dated 7.6.2010 passed by the Additional Civil Judge (Senior Division), Ajnala by which the plaintiffs have been permitted to bring on record duplicate copy of the plaint and affidavit subject to payment of Rs. 400/- as costs.
2. Briefly put, plaintiffs filed the present suit for declaration to the effect that they are owners in possession of the land measuring 19 kanals 14 marlas situated in the revenue estate of Village Dhariwal, Tehsil Ajnala, District Amritsar and in alternative, suit for joint possession and permanent injunction to restrain the defendants from alienating the suit land. Admittedly, suit was filed on 4.7.2002. After the expiry of 8 years of the trial when the suit was at the stage of arguments, the defendants filed an application under Section 152 of the Code of Civil Procedure, 1908 (for short "CPC") to bring on record duplicate copy of the plaint and an affidavit in support thereof. It is clear in the application that suit was filed on 4.7.2002 whereas the amendment in the CPC became operational w.e.f. 1.7.2002 vide which the plaintiffs were required to file duplicate copy of the plaint and also an affidavit in support thereof. The said application has been allowed by the Court below on two grounds firstly, in view of the Supreme Court judgment in the case of "Vidyawati Gupta & Ors. v. Bhakti Hari Nayak & Ors" 2006(1) RCR (Civil) 727 in which it has been held that the provisions requiring filing of duplicate copy of the plaint and affidavit in support thereof are directory and not mandatory and secondly that the suit is now at the stage of final adjudication, therefore, it would be unjust to decline the prayer made in the application by the plaintiffs. Thus, the application has been allowed compensating the defendants with costs.
3. Mr. B.R. Mahajan, learned counsel appearing on behalf of the petitioners has vehemently argued that Section 26(2) of the CPC provides that in every plaint, facts shall be proved by affidavit. Order 6 Rule 15(4) of the CPC also provides that the person verifying the pleading shall also furnish an affidavit.
