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Himachal Pradesh High Court

Nand Lal & Another vs Smt. Roshni Devi & Anor on 3 March, 2015

Author: Rajiv Sharma

Bench: Rajiv Sharma

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                                          CMPMO No. 402 of 2014.
                                                          Reserved on: 25.02.2015.
                                                           Decided on:          03.03.2015.




                                                                                      .

    Nand Lal & another                                                      ......Petitioners.
                                         Versus
    Smt. Roshni Devi & anor.                                                 .......Respondents.





    Coram
    The Hon'ble Mr. Justice Rajiv Sharma, Judge.
    Whether approved for reporting? 1    No.





    For the petitioners:               Mr. Bimal Gupta, Advocate.
    For the respondents:               Mr. Ajay Mohan Goel, Advocate.
    ----------------------------------------------------------------------------------------------
    Justice Rajiv Sharma, J.

The respondents-plaintiffs (hereinafter referred to as the plaintiffs/DH), filed suit against the petitioners-defendants (hereinafter referred to as defendants/JDs for convenience sake). The suit was contested by the defendants/JDs. The suit was decreed by the learned trial Court on 21.12.2011. The defendants preferred an appeal against the judgment dated 21.12.2011 before the learned District Judge, Bilaspur. The learned District Judge, Bilaspur, dismissed the appeal bearing No. 9 of 2012 on 10.1.2013. The defendants/JDs preferred Regular Second Appeal against the judgment and decree dated 10.1.2013 before this Court. It was dismissed by this Court on 18.9.2013. The plaintiffs have filed an execution petition No. 22/10 of 2013 before the Executing Court. The matter was listed on 22.9.2014.

The defendants/JDs were directed to file an affidavit of compliance and the matter was ordered to be put up on 3.11.2014. Since the Presiding 1 Whether reporters of the local papers may be allowed to see the judgment?

Officer was to proceed on casual leave on 3.11.2014, the matter was preponed for 1.11.2014. Thereafter, the matter was taken up on .

22.11.2014. The defendants-JDs have not filed any affidavit as per order dated 22.9.2014. In view of this, the warrant of possession was ordered to be issued against the defendants/JDs alongwith the copy of map with direction to remove the heap of soil and big step as indicated in the decree. It is, in these circumstances, the defendants/JDs have assailed the order dated 22.11.2014 before this Court.

2. This Court on 16.1.2015 appointed Mr. R.K.Negi, Advocate, as Court Commissioner to visit the spot and furnish a report in a sealed cover, after ascertaining whether the judgment and decree in question had been implemented or not. The learned Court Commissioner has furnished the report to this Court in a sealed cover. The copy of the same was ordered to be supplied to the parties on 23.2.2015.

3. Mr. Bimal Gupta, Advocate, has vehemently argued that the defendants/JDs have already executed the judgment and decree dated 21.12.2011. The submission of Mr. Bimal Gupta, Advocate, has been refuted by Mr. Ajay Mohan Goel, Advocate on behalf of the plaintiffs/DHs.

4. The Court has gone through the report minutely. The Court Commissioner has observed in his report that he has not found any heap of soil on the spot. However, as far as the stairs are concerned, the same still existed on the spot in broken state and these stairs were still part of the path in question.

5. It is thus evident that the defendants/JDs have not fully executed the judgment and decree dated 21.12.2011. Mr. Bimal Gupta, .

Advocate, has strenuously argued that the learned trial Court has preponed the matter without issuing notice to them. However, the fact of the matter is that the learned Presiding Officer had to proceed on leave and consequently, the matter was taken up on 1.11.2014 instead of 3.11.2014. The defendants/JDs have failed to point out as to what prejudice had been caused to them by preponing the matter since they had already been granted opportunity to file the affidavit of compliance.

The defendants/JDs have not filed any compliance affidavit as per order dated 22.9.2014 even on 22.11.2014, which led to the issuance of warrant of possession. There is no illegality or perversity in the order dated 22.11.2014 passed by the learned trial Court.

6. Consequently, there is no merit in this petition, the same is dismissed.

    March 03, 2015,                                        ( Rajiv Sharma ),





      (karan)                                                  Judge.





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