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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Shri Karam Chand – Petitioner
Versus
Janak Singh and Another – Respondents
CMPMO No. 18 of 2022
Decided On : 25-11-2022
Constitution of India ,1950 - Article 227 - Code of Civil Procedure,1908 - Order 39, Rules 1 and 2 - Lands - Shares - Execution of agreement -Plaintiff has filed a suit against defendants premised on the facts that an agreement was executed between plaintiff and the defendants on , whereby all of them had agreed to provide two “Karam” wide land from their respective shares out of lands comprised in khasra Nos. 7108/5323, 7331/5337 and 5324 for construction of a pat - Plaintiff claims that the path was constructed in terms of agreement dated and has described it as suit path by letters AB, CD and EF in plaint - As per plaintiff, suit path was being used by all parties till , when defendant No. 1/petitioner herein obstructed same by stacking stones thereon - Thus, a prayer has been made to restrain defendants or their agents and successors etc., from causing interference/obstruction in peaceful usages of suit path - Defendant No. 1/petitioner herein has filed the written statement - Though he has admitted the execution of agreement dated , but has simultaneously submitted that terms of agreement were not implemented for reasons; firstly, that 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 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 had been frustrated - Whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. (Para 24)
Finding of Court : Court have no hesitation to say that present is a fit case for interference by exercise of jurisdiction under Article 227 of the Constitution of India - As noticed above, both Courts below have passed the orders without considering the material as detailed in paras hereinabove - Further, if one reverts to reasons recorded by 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 basis of available material - Impugned orders have clear potential to cause prejudice to rights of defendant No. 1 and thus will cause miscarriage of justice - it affirmed order passed by learned trial Court by holding that 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 learned Appellate Court is clearly perverse - There is no admission of defendant No. 1 on record from which it can be inferred that said defendant had admitted existence of suit path on spot.
Result : Petition is allowed.
JUDGMENT :
SATYEN VAIDYA, J.
1. 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 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 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.
6. Plaintiff also claimed interim injunction under Order 39, Rules 1 and 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 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 cl
Point of Law 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 gra....
A temporary injunction cannot be granted without discussing essential principles, and a property owner cannot be restrained from using their property without a strong prima facie case.
Under Order 39 Rule 1 and 2 of CPC, ingredients, which have to be taken by Court, are (a) prima facie; (b) balance of convenience; and (c) irreparable loss.
The plaintiff must prove the existence of a path through the defendant's land to claim permanent prohibitory injunction. The suit must be framed as per the requirement of Order 7 Rule 3 CPC.
The High Court's supervisory jurisdiction under Article 227 of the Constitution is limited to ensuring subordinate courts function within their legal authority and does not permit the re-appreciation....
The court emphasized that granting a temporary injunction requires clear evidence of a prima facie case, balance of convenience, and irreparable injury, which were inadequately established by the pla....
Concurrent findings of facts and law recorded by the lower courts cannot be interfered with unless found to be perverse.
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