Himachal Pradesh High Court
Savita Sharma vs Chander Kant & Ors on 31 July, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 70 of 2021
.
Decided on: 28.07.2023
Savita Sharma ...Petitioner
Versus
Chander Kant & Ors. ...Respondents
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 No
For the Petitioner :
Mr. Navneet. K. Bhalla, Advocate.
For the Respondents : Mr. Ramakant Sharma, Ms. Sharmila
Patial, Addl. A.Gs. With Ms. Priyanka
Chauhan, Dy. A.G. and Mr. Rajat
Chauhan, Law Officer, for
respondents-State.
Tarlok Singh Chauhan, Judge (Oral)
Respondent No. 1 has filed a civil suit titled as 'Chander Kant vs. Savita Sharma and others' under Sections 37, 38 and 39 of Specific Relief Act for permanent, prohibitory and mandatory injunction on the ground that the plaintiff was having his house existing/constructed over the land comprised in Khata/Khatauni No. 615/827 Khasra No. 3159/1984/449, 2335 measuring 180 sq. mtrs. Situated in Mohal Saproon, Tehsil and District Solan, H.P. alongwith other co-owners i.e. mother and sisters.
2. It is further averred that defendant No. 1 is owner in possession of land comprised in Khasra No. 450 and 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 31/07/2023 20:43:10 :::CIS 2 1984/494/4/2 situated in Mauza Saproon, Tehsil and District Solan, H.P. which is adjacent to the house and property of the .
plaintiff. Defendant No. 1 has purchased the said property/land from its previous registered owner namely Sh. Ajit Paul Verma son of Sh. Amolak Ram and Smt. Suneel Verma wife of Sh. Ajit Paul Verma.
3. It is also averred that earlier Khasra No. 450 belonged to plaintiff and other co-owners. The plaintiff and other co-owners had executed a deed of exchange dated 03.07.2014 with said Sh. Ajit Paul Verma and Smt. Suneel Verma, which was duly registered before sub-Registrar, Solan vide registration No. 1359/2014 dated 03.07.2014. It is further averred that through the said deed of exchange the plaintiff alongwith other co-
owners has transferred a portion of land i.e. comprised in Khata/Khatauni No. 522 min/767 min. Khasra No. 450 measuring 45 sq. mtrs. in Mauza Saproon, Tehsil and District Solan, H.P. in favour of said Sh. Ajit Paul Verma and Smt. Suneel Verma similarly said Sh. Ajit Paul Verma and Smt. Suneel Verma transferred a portion of land measuring 65 sq. mtrs. out of their share 178/400 i.e. 178 sq. mtrs. in the land comprised in Khata/Khatauni No. 521/766, Khasra No. 1984/499 measuring 400 sq. mtrs. Situated in mauza Saproon, Tehsil and District Solan, H.P. ::: Downloaded on - 31/07/2023 20:43:10 :::CIS 3
4. It is further averred that as per the clause 4 of the exchange deed it is specifically mentioned that the first party i.e. .
Sh. Ajit Paul Verma and Smt. Suneel Verma will provide one meter path through the land which comes in their ownership after exchange i.e. in Khasra No. 450 to the second party i.e. plaintiff and other co-owners and the said path would remain common to all the parties for all times to come. Accordingly, said Sh. Ajit Paul Verma and Smt. Suneel Verma had left one meter wide path in Khasra No. 450 for ingress and egress of the plaintiff other co-owners and all the local habitants. Thereafter, the predecessor in interest of defendant No. 1 and the plaintiff have mutually constructed a pacca path on the aforesaid land in Khasra No. 450 as agreed and since then the plaintiff and his family members are using the said path without any obstruction and hindrance of anyone. It is pertinent to mention here that the above exchange had taken place on account of providing the aforesaid path to the plaintiff as well other inhabitants of the vicinity. It is also pertinent to mention here that as per the aforesaid exchange deed the parties shall include their respective legal heirs, successors, assigns etc. to all the terms and conditions duly mentioned in the exchange deed which also bounded upon defendant No. 1.
::: Downloaded on - 31/07/2023 20:43:10 :::CIS 45. That defendant No. 1 in the year 2018 has purchased the land property from said Sh. Ajit Paul Verma and Smt. Suneel .
Verma and defendant No. 1 is well aware about the aforesaid facts of exchange deed as well as status of path existing over the said land as the predecessor in interest of the defendant No. 1 had made this fact clear in presence of the plaintiff to the defendant No. 1 at the time of sale of property and defendant No. has admitted the said fact.
6. It is further averred that defendant No. 1 was advancing threats that she would block/obstruct the path by raising construction thereupon. The plaintiff had even made an application to the Tehsildar for incorporation of revenue entries regarding the path and the revenue authorities after visiting the spot had submitted the report dated 22.04.2019 by mentioning that there exists path of 20 sq. mtrs. as per Khasra Girdawari in Khasra No. 450 measuring 45 sq. mtrs. It has been claimed that on 26.05.2019 the defendant had started digging, cutting work and blocked the path by throwing debris etc. Hence, the suit for directing the defendant to restore the original position of path in question.
::: Downloaded on - 31/07/2023 20:43:10 :::CIS 57. Alongwith the suit an application under Order 39 Rules 1 and 2 CPC was filed and respondent No. 1 was granted .
an ex parte ad interim injunction on 27.05.2019 by restraining the respondent No. 1 from digging, cutting, blocking, obstructing, changing the nature and raising construction over the said path in question existing in khasra No. 450 situated in Mohal Saproon, Tehsil and District Solan, H.P.
8. After service petitioner filed written statement and also reply to the application.
9. The defendant filed written statement by raising preliminary objections that the suit is not maintainable and that there exist two alternative paths which lead to the properties of the present plaintiff. It is further submitted that one of the path over Khasra No. 402 which is jointly owned by the present plaintiff and recorded as such in the revenue record. It was also stated that the plaintiff is enjoying another path which is available and existing on the spot and runs adjoining to the land comprised in Khasra No. 1984/449 facing Khasra No. 394, 395 and part of Khasra No. 396 from the corner of Khasra No. 451 to the other corner of Khasra No. 449/1 and 448. The Khasra No. 448 and Khasra No. 451 are owned by the plaintiff and the plaintiff himself has sold some of the land in Khasra No. 451 to one Smt. Mahima and had also granted her right of path through ::: Downloaded on - 31/07/2023 20:43:10 :::CIS 6 the registered sale deed. Therefore, the said path over Khasra No. 451 is available to the plaintiff.
.
10. On merits, it is averred that there exists path over Khasra No. 402 which is owned by the plaintiff and since no path exists on the land owned by defendant No. 1, therefore, the question of blocking the same does not arise.
11. When the case came up for consideration before the passed:-
r to learned Trial Court on 04.01.2021, the following order came to be "Because of the onset of pandemic COVIC-19, the Court functioning has been suspended. Be put up for further order on 15.03.2021."
12. It is not in dispute that thereafter civil courts were closed due to winter vacation from 18.01.2021. The defendant No. 1, who was a police officer is stated to have been working as Naib Court in the office of District Attorney, Solan and is alleged to have manipulated the facts by presenting one application under Section 151 CPC for early hearing on 28.01.2021 i.e. during the winter vacation.
13. The application was taken up and was allowed by passing the following order:-
"Matter has been taken up today on an application for early hearing and preponement of the case.::: Downloaded on - 31/07/2023 20:43:10 :::CIS 7
Vide separate order application under Section 151 CPC for early hearing has been allowed. Let notices be issued to .
respondent through counsel for 29.01.2021. Dasti be issued.
14. It would be noticed that no notice of the application was ordered to be served on the litigant i.e. the respondent even when the Court was closed on account of vacation. Even notice could not be served upon the counsel Shri Navneet. K. Bhalla as is evident from the report of the process server wherein it has been stated that he had enquired from the office of Shri N.K. Bhalla that he is not available and the office was in fact found to be closed. The process server further reported that he took the phone number of Shri N. K. Bhalla, Advocate, and on being contacted he was told that he was sick and out of station, meaning thereby, that the summons in fact were not served.
However, the learned Trial Court without caring or even bothering to see whether there was a valid service or not proceeded to allow the application in the following terms:-
"In the light of the averments made by the applicant as well as by the respondent, this Court is of the view that if any police assistance is granted to the applicant, no prejudice will be done to any of the party as it would meet the ends of justice. Hence, the present application deserves to be allowed. The concerned SHO is hereby directed to visit the spot to know about the facts and to take appropriate steps in accordance with law for implementing the order dated 27.05.2019 passed by this ::: Downloaded on - 31/07/2023 20:43:10 :::CIS 8 Court. Necessary reference order be made to SHO accordingly. Civil Ahlmad is directed to do the needful.
.
Application stands disposed of. Be tagged with the main case file.
15. The narration of the aforesaid facts clearly disclose the sorry and deplorable state of affairs where the Court has simply bulldozed its way by issuing order of police assistance, without even caring to see whether the party has been served or not. The manner in which the Court below has proceeded leaves much to desire.
16. The object of service of summons in whatever way, it may be effected is that the party may be informed of the institution of the application in due time before the date fixed for its hearing and where a party is not served with summons then even the mere fact that the party has knowledge of the proceeding is totally immaterial (Bengal Chand Co. vs. Gouri Shankar (1995) 1 Cal 119).
17. Apart from the above, I am at a complete loss to understand as to what was the pressing necessity or for that matter even the justification for preponing the proceedings that too when the Courts were closed on account of winter vacations.
If at all the Court felt that the case was of an urgent nature, then it ought to have issued dasti notice for the service of the respondent, who appears to be residing in the vicinity of Solan ::: Downloaded on - 31/07/2023 20:43:10 :::CIS 9 town itself as is evident from the address appearing in the memo of parties where she is shown to be resident of Village and Post .
Office Saproon, Tehsil and District Solan, H.P., rather than trying to serve the notice upon the counsel knowing fully well that there were vacations in the Court.
18. Another glaring fact which emanate from the record is that the application filed for police assistance was based upon two DD entries dated 27.1.2021 and 28.01.2021, respectively, and going by the record and the fact that the respondent was in the Police Department and currently posted as Naib Court, these entries could not have been taken at their face value and were required to be taken with a pinch of salt. Why I observe so is because the respondent despite having been duly served has not appeared before this Court to contest this petition.
19. Be that as it may, this Court is not in a position to appreciate the mode and manner in which the learned Judge has conducted herself in firstly entertaining the application during vacations and thereafter having directed the service of notice only upon the Advocate and not the petitioner herein and even after the receipt of the report that the Advocate had not been served, proceeded to pass an order, that too, grant of police assistance.
::: Downloaded on - 31/07/2023 20:43:10 :::CIS 1020. The learned Trial Court has completely failed to take into consideration the fact that the order of police assistance has .
got serious consequences impinging upon the rights of the party and normally, therefore, Courts are required to be slow on passing such order. In any case, such kind of order can be passed only after hearing both the sides.
21. In view of the aforesaid discussion and for the reasons stated above, I find merit in this petition and the same is accordingly allowed and the Impugned order dated 29.01.2021 is set aside with a direction to the Court to decide both the applications i.e. under Order 39 Rules 1 and 2 and the one for police assistance, as expeditiously as possible, and in no event later than 31.08.2023.
22. Pending miscellaneous application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge 28th July, 2023 (sanjeev) ::: Downloaded on - 31/07/2023 20:43:10 :::CIS