HI GH COURT OF UTTARAKHAND AT NAI NI TAL Second Appeal No. 90 of 2016

16^th December, 2025 Swami Omkarananda Dharma Samsthan Through Its President Swami Vishveshwarananda --Appellant Versus Nagar Panchayat Devprayag and others --Respondents Present:-

Mr. Narendra Bali, learned counsel for the appellant.

Mr. Davesh Bishnoi, learned counsel for the respondent no. 1, Hon'ble Rakesh Thapliyal, J.

The instant second appeal has been preferred by the appellant against the judgment and decree dated 20.11.2001, passed by the learned Civil Judge (Sr. Div.) Pauri Garhwal, in O.S. No. 01 of 2001, Swami Omkaranand vs. Nagar Panchayat, Devprayag and others, whereby the suit filed by the plaintiff/appellant was dismissed. Against judgment and decree, passed by the learned Civil Judge (Sr. Div.), Civil Appeal No. 36 of 2013 was filed, however, the same was also dismissed on 20.11.2001 and the same is also being challenged in the instant second appeal.

2. The instant second appeal was admitted on 13.06.2016 on the following substantial question of law:-

(i) Whether an advocate engaged for representing the plaintiff without there being any power of attorney in his favour and any instruction to appeal as a witness could appeal as a witness and continue to be an advocate at the same time and could depose against his own client?

(ii) Whether the decree passed by the learned appellant court vitiates for not recording any finding on the specific grounds raised by the appellant with regard to the fraud being played by the counsel before the trial court and with regard to the admissibility of the statement of the advocate as a witness?

3. As per the order sheet, the service is affected upon all the respondents but no one turned up except respondent no. 1.

4. To examine the substantial question of law, as framed, the counsel who came in the witness box before the trial court was also impleaded as party-

respondent.

5. After gone through with the substantial question of law, as framed by this Court, this Court is of the view that substantial question of law no. 1 is sufficient to decide the instant second appeal without gone through with the second substantial question of law.

6. The appellant herein is the plaintiff preferred a suit for seeking permanent injunction bearing O.S. No. 01 of 2001. In the said suit Mr. K.P. Dangwal was engaged as a lawyer to represent the plaintiff but surprisingly the said counsel came in the witness box and examined as P.W.1, and, based on his statement, the suit was dismissed. The statement of Mr. K.P. Dangwal, Advocate is enclosed at page 58, who was examined as P.W.1 and what he has stated on oath is also being reproduced herein as under:-

U;k;y; flfoy tt ofj"B izHkkx] ikSM+h nhokuh okn ua0 1@2001 Lokeh vkads kjkuUn cuke uxj iapk;r uke lk{kh& Jh ds0 ih0 Maxoky] ,MoksdsV ikSM+h xM+oky l'kiFk c;ku fd;k eSa oknh laLFkk dk bl ekeys esa vf/koDrk g w vkSj okn ds lHkh rF;ksa ls fHkK gwaA oknh us nkoh Hkwfe ij LFkkbZ fu"ks/kkKk dk okn izLrqr fd;k gS ftl ij izfroknhx.k }kjk ?kUVk?kj o CkPPkk ikdZ Ckuk fn;k x;k gS vkSj oknh o izfroknh la0 1 bl ckr ij lger gks x;s gS a fd fookfnr lEifRr dk mi;ksx lkoZtfud :Ik l s djus ds fy, izfroknh la[;k&1 nkoh Hkwfe ij ;g cksMZ yxk;sxk fd nkoh Hkwfe oknh lLa Fkk dh vksj ls izfroknh la0&1 dks nh tk;sxh dk ckMs Z yxk;k tk;sA x x x x x x fookfnr Hkwfe lkoZtfud vke turk ds mi;ksx esa ykbZ tk jgha gS vkSj i;ZVd LFky cuus dh lEHkkouk; sa gS a bl fLFkfr es a oknh dk fookfnr Hkwfe dks lkoZtfud :i esa mi;ksx djus ij bl 'krZ ij dkbs Z vkifRr ugha gS fd izfroknh u0a 1 fookfnr LFky ij ;g lkbZu cksMZ yxk ns fd fookfnr Hkwfe oknh ds lkStU; ls izkIr gqb Z gSA lqudj rLnhd fd;k mijksDr dFku esj s cksyus ij jhMj }kjk fy[kk x;kA

7. After examining the counsel, as PW1, issue no. 1 was dealt with and the suit was dismissed. Being aggrieved with the trial court order dated 20.11.2001, Civil Appeal No. 36 of 2013 was preferred but the First Appellate Court also dismissed the appeal.

8. Mr. Narendra Bali, learned counsel for the app