Himachal Pradesh High Court
Shri Karam Chand vs Janak Singh & Anr on 25 November, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 18 of 2022.
.
Reserved On: 18th November, 2022.
Decided on : 25th November, 2022.
Shri Karam Chand ...Petitioner.
Versus
Janak Singh & Anr.
Coram:
r to
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
....Respondents.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. B.L. Soni, Advocate.
For Respondent No.1: Mr. Ajay Chandel, Advocate.
For Respondent No.2: Mr. Virender Singh Rathore, Advocate.
Satyen Vaidya, Judge.
Petitioner has assailed order dated 07.01.2022, passed by learned District Judge, Kullu, in Civil Misc.
Appeal No.1 of 2021, affirming the order dated 1 Whether reporters of the local papers may be allowed to see the judgment?
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31.12.2020, passed by learned Senior Civil Judge, Kullu, .
in CMA No.138-VI of 2020.
2. Parties herein shall be referred to by the same status as is held by them before the learned trial Court.
Respondent No.1 herein is the plaintiff, whereas petitioner and proforma respondent herein are defendants before the learned trial Court.
3. Plaintiff has filed a suit against the defendants premised on the facts that an agreement was executed between the plaintiff and the defendants on 09.10.2009, whereby all of them had agreed to provide two "Karam"
wide land from their respective shares out of the lands comprised in khasra Nos. 7108/5323, 7331/5337 and 5324 for construction of a path. Plaintiff claims that the path was constructed in terms of agreement dated 9.10.2009 and has described it as the suit path by letters AB, CD and EF in the plaint. As per plaintiff, the suit path was being used by all the parties till 11.07.2020, when defendant No.1/petitioner herein obstructed the same by ::: Downloaded on - 25/11/2022 20:32:54 :::CIS ...3...
stacking stones thereon. Thus, a prayer has been made .
to restrain the defendants or their agents and successors etc., from causing interference/obstruction in the peaceful usages of suit path.
4. Defendant No.1/petitioner herein has filed the written statement. Though he has admitted the execution of agreement dated 09.10.2009, but has simultaneously submitted that the terms of the agreement were not implemented for the reasons; firstly, that the tatima of proposed path was not got prepared in revenue record, secondly, co-sharers of plaintiff had refused to allow construction of road and thirdly, in the meantime, National Highway Authority of India had acquired some portion of lands of plaintiff and defendant No.1 from which road was proposed to be constructed.
On such grounds, it has been submitted that the agreement dated 09.10.2009 had been frustrated.
5. Defendant No.1 has also filed separate written statement. His stand is not clear on the facts in issue.
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6. Plaintiff also claimed interim injunction under .
Order 39, Rules 1 & 2 of the Code of Civil Procedure by filing separate application under the aforesaid provision with the relief to restrain the defendants or their agents, successors etc., from causing any sort of unlawful interference/obstruction in the peaceful user of suit path with further direction to defendant to remove the interference. The application was contested by defendant No.1/petitioner herein.
7. Learned trial Court vide order dated 31.12.2020 partly allowed the application for interim injunction filed by the plaintiff and restrained the defendants from causing interference/obstruction in the peaceful usages of suit path till the final disposal of the suit.
8. Defendant No.1 assailed the aforesaid order of the learned trial Court before the learned District Judge, Kullu by filing an appeal under Order 43, Rule 1(r) of the Code of Civil Procedure. Learned Appellate Court ::: Downloaded on - 25/11/2022 20:32:54 :::CIS ...5...
dismissed the appeal of defendant No.1 and affirmed the .
order passed by the learned trial Court.
9. I have heard learned counsel for the parties and have also gone through the entire record carefully.
10. Agreement dated 09.10.2009 executed between the parties to the suit has been made the basis for construction and existence of suit path. Plaintiff has also claimed right of user over suit path on the basis of terms of said agreement.
11. It can be inferred from the terms of agreement dated 09.10.2009 that parties to the suit had agreed to provide two "Karam" wide path from their respective shares from lands comprised in khasra numbers 7108/5323, 7331/5337 and 5324. It is also evident from the contents of agreement that the parties had agreed to get the tatima of proposed road to be carved out in revenue record. Plaintiff has not placed any such tatima on record. Defendant No.1 has clearly stated that no such tatima was prepared. As a matter of fact, had such ::: Downloaded on - 25/11/2022 20:32:54 :::CIS ...6...
tatima been there, the suit path would have been easily .
identified. However, in the absence of such tatima, it cannot be ascertained as to what is the identity of suit path.
12. Noticeably, the relief prayed for by plaintiff in the plaint as also in the application under Order 39, Rules 1 & 2 of the CPC is with respect to the suit path which has been described by letters AB, CD and EF in the plaint.
However, there is no reference in the plaint in what context the suit path has been marked by letters AB, CD and EF. At page "116" of the trial Court record, there is a document which appears to be a traced copy of field map showing various khasra numbers. The author of such document is none else but the plaintiff. It is in this document that parallel red lines have been drawn depicting path and has been marked by letters AB, CD and EF.
13. Under Order 7, Rule 3 of the Code of Civil Procedure, the immovable property, subject matter of the ::: Downloaded on - 25/11/2022 20:32:54 :::CIS ...7...
suit, needs to be clearly identified. The suit path, in the .
manner as noticed above, cannot be stated to have been identified in compliance of aforesaid provisions of law.
The purpose of clear identification is to enable passing of executable decree/order.
14. In view of non-identification of suit path in accordance with law, the validity and efficacy of interim injunction order passed by learned courts below become seriously questionable. It is uncertain as to in respect of which path the order of injunction has been issued. In the absence of any proper identification of suit path, the order of injunction in respect thereof cannot be said to be legally executable order and as such cannot be sustained for this reason only.
15. In addition, in order to succeed in his prayer for interim injunction, the plaintiff was required to place on record prima facie material to show existence of path in terms of agreement dated 09.10.2009. It is revealed from the record that land comprised in Khasra No. 7108/5323 ::: Downloaded on - 25/11/2022 20:32:54 :::CIS ...8...
belongs to number of co-owners including the plaintiff.
.
Land comprised in khasra No. 7331/5337 belongs to defendant with other co-owners and similarly land comprised in Khasra No. 5324 belongs to co-owners including defendant No.2. There is nothing on record to show that all other co-owners had consented to the construction of path as intended in terms of agreement dated 9.10.2009. This gains importance in light of the objection raised by defendant No.1 to the effect that path was not constructed as plaintiff could not obtain no objection from other co-owners.
16. It has been admitted by the plaintiff in his replication that some part of khasra numbers from which path was agreed to be carved out had been acquired by National Highway Authority of India for four laning of the road. In this view of the matter, it was incumbent upon the plaintiff to have clearly delineated and identified the suit path. Thus, Plaintiff failed to place on record any material to justify his stand, at least prima facie, that the ::: Downloaded on - 25/11/2022 20:32:54 :::CIS ...9...
path was constructed in terms of agreement dated .
09.10.2009. On the contrary, the stand taken by defendant No.1 appeared more plausible.
17. Another factual aspect that has been noticed is that the stand of plaintiff is falsified by his own document i.e. the trace of field map placed on record at page "116"
of the trial Court record, wherein the suit path was marked by letters AB, CD and EF. The path as shown in this document does not touch khasra No. 7108/5323 from which the plaintiff had agreed to surrender the land. Such path has also been depicted through khasra No. 5366 and this khasra number is not mentioned in agreement dated 09.10.2009, nor is it clear as to whom such piece of land belongs.
18. Learned counsel for the plaintiff has vehemently argued that this Court while exercising powers under Article 227 of the Constitution of India has limited and restrictive jurisdiction. He placed reliance on judgments passed by the Hon'ble Supreme Court in ::: Downloaded on - 25/11/2022 20:32:54 :::CIS ...10...
Sadhana Lodh vs. National Insurance Co;. Ltd. & .
another, (2003)3 SCC 524, Radhey Shayam & Another vs. Chhabi Nath and others, (2009)5 SCC 616 and Garment Craft vs. Prakash Chand Goel, (2022)4 SCC 181. On the strength of such judgments, it has been contended on behalf of the plaintiff that this Court will not substitute its view as the view taken by courts below was reasonable.
19. There cannot be any dispute as to the proposition of law canvassed on behalf of the plaintiff.
Powers of this Court to exercise jurisdiction under Article 227 of the Constitution of India can be culled out from the relevant extracts of judgments cited on behalf of the plaintiff. In Sadhana Lodh vs. National Insurance Co;. Ltd. & another, (2003)3 SCC 524, it has been held as under:-
"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face ::: Downloaded on - 25/11/2022 20:32:54 :::CIS ...11...
of the record, much less of an error of law. In .
exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision."
20. In r to Radhey Shyam & Another vs. Chhabi Nath and others, (2009)5 SCC 166, the Hon'ble Supreme Court rendered the following exposition of law:-
"31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power,however, is not to be exercised to correct a mistake of fact and of law."
21. In Garment Craft vs. Prakash Chand Goel, (2022)4 SCC 181, it has been held as under:-
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"15. Having heard the counsel for the parties, we .
are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice."::: Downloaded on - 25/11/2022 20:32:54 :::CIS
...13...
22. Thus, from the above stated exposition of law, .
it is clear that though this Court has restrictive and limited jurisdiction to interfere under Article 227 of the Constitution of India, yet even after such restriction, the same can be extended to set right the grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice. Such power can also be used in appropriate cases where there is no material to justify the findings or findings are so perverse that no reasonable person can possibly come to a conclusion that a Court has arrived at. Additionally, the aforesaid jurisdiction can also be exercised to ensure that there is no miscarriage of justice.
23. Keeping in view the aforesaid dictum in mind, I have no hesitation to say that the present is a fit case for interference by exercise of jurisdiction under Article 227 of the Constitution of India. As noticed above, both the Courts below have passed the orders without considering the material as detailed in paras hereabove. Further, if ::: Downloaded on - 25/11/2022 20:32:54 :::CIS ...14...
one reverts to reasons recorded by the Courts below for .
arriving at their respective findings, again it is found that the reasons recorded by them are result of drawl of surmises on their part, otherwise neither there was any material to warrant such reasons nor could be expected as prudent conclusion on the basis of available material.
The impugned orders have clear potential to cause prejudice to the rights of defendant No.1 and thus will cause miscarriage of justice.
24. Learned trial Court clearly ignored that there was no identification of suit path on record, still, by placing reliance merely on the photographs has proceeded to pass the interim injunction order. The photographs cannot be a substitute to the requirements encompassed under Order 7, Rule 3 of the Code of Civil Procedure. Thus, it was clearly an assumption of fact by learned trial Court that the path was in existence in terms of agreement dated 09.10.2009, whereas the material on record suggested otherwise.
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25. Coming to the order passed by learned .
Appellate Court, it affirmed the order passed by learned trial Court by holding that the existence of disputed path on spot had not been denied by defendant No.1. Only for such reason, the injunction order passed by learned trial Court was affirmed. Such finding rendered by the learned Appellate Court is clearly perverse.
r There is no admission of defendant No.1 on record from which it can be inferred that the said defendant had admitted the existence of suit path on spot.
26. In the light of the above discussion, the instant petition is allowed and the order dated 07.01.2022, passed by learned District Judge, Kullu, in Civil Misc.
Appeal No.1 of 2021, affirming the order dated 31.12.2020, passed by learned Senior Civil Judge, Kullu, in CMA No.138-VI of 2020, is set aside. Consequently, CMA No.138-VI of 2020, filed by the plaintiff/respondent No.1 before the learned trial Court under Order 39, Rules 1 and 2 of the CPC for interim injunction is dismissed.
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27. However, it is made clear that the observations .
made hereinabove shall have no bearings on the merit of the case and shall be construed for the disposal of the present petition only.
(Satyen Vaidya) Judge 25th November, 2022.
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