Point of Law: Power of Court, under Order 39 Rules 1 and 2 CPC, is to preserve subject matter of lis and to maintain status quo, regarding suit property, as, it exists on date of inception of lis between parties.

JUDGMENT :

Virender Singh, J.

Petitioner-Sunita Shandil has filed the present petition, under Section 227 of the Constitution of India, against the order, dated 9th November, 2022, passed by the Court of learned Civil Judge, Court No. 6, Shimla, H.P. (hereinafter referred to as the learned ‘trial Court’) in CMA No. 3287 of 2022, titled as Sunita Shandil versus Meera and others.

2. Vide the order, as assailed before this Court, the learned trial Court has dismissed the application, under Section 151 of the Code of Civil Procedure (hereinafter referred to as the ‘CPC’), filed by the petitioner, seeking police help for enforcement of status quo order, passed by the learned trial Court on 28th September, 2021.

3. For the sake of convenience, the parties to the lis are, hereinafter, referred to, in the same manner, as referred to, by the learned trial Court.

4. Brief facts, leading to the filing of the present petition, before this Court, may be summed up, as under:

4.1. The plaintiff has filed a Civil Suit, against the defendants, for a decree for permanent prohibitory injunction, restraining defendants No. 1 and 2, from carrying out any kind of construction, on any part and portion of the land, comprised in Khewat No. 19, Khatauni No. 61 and 62, Khasra No. 2, 3, 786/1 and 1 Kita 4, measuring 00-15-07 hectares, situated at Mauza Chamyana, Tehsil Shimla (R), District Shimla, H.P. (hereinafter referred to as the ‘suit land’).

4.2. A decree for mandatory injunction has also been sought by the plaintiff, against defendants No. 1 and 2, by directing them to remove the entire construction, raised by them, on any part and portion of the suit land, beyond their share.

4.3. Further, a relief qua removal/demolition of the entire fourth storey, raised by defendants No. 1 and 2, over the part of the suit land, has also been sought.

4.4. The suit has been filed by the plaintiff, on the ground, that defendant No. 1 was the owner to the extent of 3008 shares, out of 20100 shares, of the suit land, measuring 225 sq. meters only and defendants No. 1 and 2 had constructed a house thereupon and while raising such construction, they had covered more land than falling in their share over the suit land, whereas, according to the plaintiff, she is the owner of almost 68% of the suit land, which has been purchased by her, vide sale deed, dated 11th April, 2019. The factum of sale, is stated to have been duly reflected, in revenue record by way of mutation No. 477.

4.5. It is the further case of the plaintiff that defendants No. 1 and 2 have raised the fourth storey of their building, which is in violation of the building bye-laws and even, the orders passed by the National Green Tribunal.

4.6. On the basis of the above facts, plaintiff has sought the relief, as claimed by her, in Civil Suit No. 159 of 2021, titled as Sunita Shandil versus Meera and others.

5. Alongwith the suit, the plaintiff has also filed an application, under Order 39 Rules 1 and 2 CPC, seeking ad interim ex-parte injunction, restraining defendants No. 1 and 2 from carrying out any kind of construction on any part or portion of the suit land, during the pendency of the suit.

6. On notice, the suit, as well as, the application, has been contested by the defendants, by filing their separate written statements and reply to the application.

6.1. Defendants No. 1 and 2 have filed their joint written statement, in which, they have taken the preliminary objection qua the fact that the suit of the plaintiff is not maintainable, as the conduct of the plaintiff to keep silence for a period of more than two years from the alleged purchase of the land and to allow her husband, Shri Ram Krishan Shandil, to continue with the earlier Civil Suit, filed by him, based on the alleged agreement to purchase of the land, dis-entitles her from seeking the relief of injunction.

6.2. Apart from this, the preliminary objections, with regard to the estoppel, locus standi, no cause of action, the suit being bad in law, the sui