Himachal Pradesh High Court
Puran Chand & Anr vs Sanjay & Ors on 17 June, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 221 of 2014.
Decided on: 17.6.2015.
Puran Chand & anr. ......Petitioners.
Versus
Sanjay & ors. .......Respondents.
.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1. Yes.
For the petitioners: Mr. Ajay Sharma, Advocate.
For the respondents: Mr. Vishwa Bhushan, Advocate.
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Justice Rajiv Sharma, J.
This petition is directed against the order dated 29.5.2014, rendered by the learned District Judge, Kangra at Dharamshala, in Civil Misc. Appeal No. 8/XIV-2014.r
2. Key facts, necessary for the adjudication of this petition are that the petitioners-plaintiffs (hereinafter referred to as the plaintiffs) have instituted a suit for mandatory as well as prohibitory injunction against the defendants-respondents (hereinafter referred to as the defendants). The plaintiffs have their abadi and land comprised in Khata No. 175, Khatauni No. 317, Kh. No. 96, 97, 106 and 107, area measuring 0-19-32 hectares situated in Up Mohal Narwana, Mouza Yol, Tehsil Dharamshala, Distt. Kangra, H.P., as per jamabandi for the year 2009-10. There exists a village path shown in red colour in plan from State Highway Dharamshala-Palampur to go to the suit land. Two meter path has been cemented by the Gram Panchayat out of the funds provided by the State Government with the consent of effected persons. There was a Kuhal shown in blue colour in the plan and one of the Kuhal was drawn from the Nullah. The land and houses of the defendants were also situated on the spot. The defendants have started causing obstruction in the use of path and free flow of water in the 1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 15/04/2017 18:22:55 :::HCHP 2 Kuhal and have placed boulders at point 'A', as shown in the plan. The plaintiffs were not able to sow paddy crops in the suit land.
3. The suit was contested by the defendants. According to them, the path and Kuhal had not been constructed out of public funds. Defendant .
No. 1 had been living in Noida since 1994. He alongwith defendant No. 2 had not consented for the construction of the path. Defendant No. 1 during the year 2009-10, on coming to know that the suit path was being converted into a cemented path, rushed to the Village. He sought information under the RTI Act regarding construction of the path. He was informed by the Panchayat Secretary that construction work of suit path had been stopped. He placed rocks and stones on his land. The Kuhal did not exist on the spot.
4. The learned Civil Judge (Sr. Divn.), Kangra at Dharamshala, vide order dated 2.9.2013 directed the defendants to remove the heap of stones and rocks from the passage within a period of 30 days from the date of passing of the order. The defendants preferred an appeal before the learned District Judge, Kangra at Dharamshala. The learned District Judge, Kangra at Dharamshala, partly allowed the same on 29.5.2014 and the parties were directed to maintain status quo till the disposal of the suit.
5. It is evident from the facts enumerated hereinabove that the path is in existence. It was cemented by the Gram Panchayat. The path connects the State Highway Dharamshala-Palampur. The plaintiffs had been using this path to reach their houses. It is not in dispute that the path has been constructed by the Panchayat and it was cemented only in 2009-10. Defendant No. 1 Puran Chand came from Noida and stacked stones on the path.
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6. The major portion of the path has been constructed from the land of the plaintiffs. The respondents have given no-objection for the construction of jeepable road from the house of Purvi Ram to the house of Panju Ram. The learned Civil Judge(Sr. Divn.), has rightly ordered to defendants to remove the .
stones and rocks from the passage. The learned District Judge, has erred in law by directing the parties to maintain status quo. The plaintiffs could not be deprived of their right of access to the houses. They had also been using the path to go to their fields. The defendants have not raised objection when the path was cemented by the Gram Panchayat.
7. Mr. Vishwa Bhushan, Advocate, has vehemently argued that the relief of interlocutory mandatory injunction could not be ordered by the learned Civil Judge (Sr. Divn.), Kangra at Dharamshala. Their lordships of the Hon'ble Supreme Court in the case of Dorab Cawasji Warden vrs. Coomi Sorab Warden and ors., reported in AIR 1990 SC 867, have held as under:
"14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guid- lines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.::: Downloaded on - 15/04/2017 18:22:55 :::HCHP 4
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief."
8. In the instant case, the plaintiffs have made out a strong case .
and they would have suffered irreparable loss and injury in case the right to access to their houses is denied. The balance of convenience also lies in their favour.
9. Accordingly, the petition is allowed. Order dated 29.5.2014 in Civil Misc. Appeal No. 8/XIV-2014 passed by the learned District Judge, Kangra at Dharamshala, H.P. is set aside. Order dated 2.9.2013 in Civil Suit No. 276 of 2013 passed by the learned Civil Judge (Sr. Divn.), Kangra at Dharamshala is restored.
June 17, 2015, ( Rajiv Sharma ),
(karan) Judge.
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