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2022 Supreme(HP) 750
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Chander Dass - Petitioner
Versus
Madho Dass and Anr. - Respondents
C.M.P.M.O. No. 861 of 2019
Decided On : 07-12-2022
For the Petitioner: Mr. Surinder Prakash Sharma.
For the Respondents: Mr. Anupam Anzranni.
Point of Law : Both these reliefs are specifically barred under Clause (a) and (b) of Section 41 of Specific Relief Act. In view of such legal impediment also, plaintiff cannot be granted the relief as prayed by him in interim.
Headnote:
Code of Civil Procedure,1908 - Order 39 and 43 - Rules 1 and 2 - Specific Relief Act - Section 41 - Suit property - Possession - Decreed - Plaintiff claims himself to be owner in possession of suit property and on such basis claimed relief, as noticed above, in the suit - In defence, defendants disclosed that a decree of Civil Court already existed in favour of defendant No. 1 in respect of suit property - Previous Suit No. 24/1998 was decided by learned Senior Sub Judge, Lahaul & Spiti at Kullu, vide judgment and decree dated , on basis of compromise effected between parties - Under said decree, plaintiff was liable to pay Rs. 30,000/- per annum to defendant No. 1 on or before 31st day of March every year and in default defendant No. 1 was held entitled to possession of suit property - Though, plaintiff had not disclosed the factum of earlier suit and decree passed therein in the plaint, however, he had to admit such fact in replication - In view of this, apprehension of plaintiff of forcible dispossession was totally misplaced. It appears that just for gaining undue advantage, plaintiff had intentionally and deliberately suppressed material facts like decree passed in previous suit between the same parties as also the pendency of execution petition. In such view of the matter also, plaintiff was not entitled for any discretionary and equitable relief. Para 14
Finding of Court :
As noticed above, Execution Petition No. was already pending when plaintiff filed the suit in year - Very fact that defendant No. 1 had filed the execution reveals his intent of getting possession of suit property by due process of law - In view of this, apprehension of plaintiff of forcible dispossession was totally misplaced - It appears that just for gaining undue advantage, plaintiff had intentionally and deliberately suppressed material facts like decree passed in previous suit between same parties as also pendency of execution petition - In such view of matter also, plaintiff was not entitled for any discretionary and equitable relief - By claiming the relief, as prayed for, by plaintiff in suit or by way of application under Order 39 Rules 1 and 2 of CPC, plaintiff has practically sought an injunction in the nature which has implication of restraining defendant No.1 from prosecuting a judicial proceedings pending at time of institution of suit - In addition, the relief of injunction as claimed by plaintiff, if granted in his favour will amount to restraining defendant No. 1 from prosecuting proceedings in a Court which is not subordinate to Court from which relief is sought - Both these reliefs are specifically barred under Clause (a) and (b) of Section 41 of Specific Relief Act - In view of such legal impediment also, plaintiff cannot be granted relief as prayed by him in interim.
Result : Petition dismissed
JUDGMENT :
(Satyen Vaidya, J.)
1. By way of instant petition, petitioner has assailed order dated 04.10.2019, passed by learned District Judge, Kullu in CMA No. 02/2019, whereby order dated 16.05.2019, passed by learned Sub Judge, Manali in CMA No. 165 of 2018 (Civil Suit No. 162 of 2018) was reversed.
2. Parties hereinafter shall be referred to by the same status as they hold before learned Trial Court. Petitioner is the plaintiff and respondents are the defendants.
3. Plaintiff has filed a suit against defendants seeking relief to the following effects:-
(i) The defendants themselves, through their agents, servant, labourers, and family members may be restrained from interfering in the ownership and dispossessing the plaintiff from suit house and the suit land comprised in Khata/Khatouni No. 387/564, Khasra No. 1653 measuring 00-04-85 hectares and comprised Khata/Khatouni No. 385/562, Khasra No. 1651, 1647, 1869/1652 measuring 00-06-51 hectares situated at Muhal and Phati Sajla Kothi Barshai, Tehsil Manali, Distt. Kullu, H.P. or causing any sort of interference in any other manner over the same by passing a decree for permanent prohibitory injunction.”
4. Plaintiff claims himself to be the owner in possession of the suit property and on such basis claimed the relief, as noticed above, in the suit.
5. In defence, the defendants disclosed that a decree of Civil Court already existed in favour of defendant No. 1 in respect of the suit property. Previous Suit No. 24/1998 was decided by learned Senior Sub Judge, Lahaul & Spiti at Kullu, vide judgment and decree dated 22.08.1998, on the basis of compromise effected between the parties. Under the said decree, plaintiff was liable to pay Rs. 30,000/- per annum to defendant No. 1 on or before 31st day of March every year and in default defendant No. 1 was held entitled to possession of the suit property. Though, plaintiff had not disclosed the factum of earlier suit and decree passed therein in the plaint, however, he had to admit such fact in the replication.
6. Alongwith the present suit, plaintiff also prayed for interim injunction by filing application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The interim injunction was sought in the same terms as was claimed as relief in main suit.
7. Learned Trial Court allowed the application for interim injunction of the plaintiff and restrained the defendants from interfering over the suit land except by due process of law till final disposal of the suit.
8. Aggrieved against the order passed by learned Trial Court, defendants approached learned Appellate Court by filing appeal under Order 43 Rule 1(r) of the Code of Civil Procedure. Learned Appellate Court allowed the appeal and dismissed the application of plaintiff under Order 39 Rules 1 and 2 of Code of Civil Procedure, hence present petition.
9. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
10. Undisputed facts are that plaintiff is son of defendant No. 1. Civil Suit No. 24/1998 was filed by defendant No. 1 before learned Senior Sub Judge, Lahaul & Spiti at Kullu, whereby the gift in respect of the suit property executed by mother of the plaintiff in his favour was challenged. The suit was compromised between plaintiff and defendant No. 1. Plaintiff agreed to pay Rs.30,000/- per annum to defendant No. 1 and it was further agreed that in case of default being committed by plaintiff, defendant No. 1 would be entitled to possession of the suit property.
11. Now, the dispute has arisen. Whereas, according to plaintiff, he has always been ready and willing to pay the amount in terms of decree passed in Civil Suit No. 24/1998, but was unable to do so as defendant No. 1 has refused to accept the amount, on the other hand, defendant No. 1 has filed the Execution Petition No. 11/2015 before learned Senior Sub Judge, Lahaul & Spiti at Kullu, for executing the compromise decree dated 22.08.1998, passed in Civil Suit No. 24/199
