High Court jurisdiction under Article 227 cannot be invoked if the party has failed to appeal against the lower court's decision.

JUDGMENT :

Satyen Vaidya, J.

Heard.

2. By way of this petition, petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India, by seeking the prayer in following terms:-

“It is therefore, prayed that the petition may be allowed and the observations/findings recorded by learned first Appellate Court in judgment dated 31.3.2015 reframing Issue No.1 and such other findings considering the proposed amendment plaintof the plaintiff-respondent may be set aside by directing the learned trial Court to proceed with the trial of the suit land dispose of in accordance with law”.

3. Brief facts necessary for adjudication of the petition are that the respondent/plaintiff Sh. Munshi Ram filed a suit for permanent prohibitory and mandatory injunction against the petitioners/defendants being Civil Suit No. 130 of 2007 on the files of learned Civil Judge (Senior Division), Kangra. The suit was dismissed by the learned trial Court vide judgment and decree dated 29.12.2012.

4. The respondent/plaintiff assailed the judgment and decree passed by the learned trial Court in first appeal under Section 96 of the Code of Civil Procedure. The appeal of the respondent/plaintiff was heard by the learned Additional District Judge-III, Kangra at Dharmshala and was decided vide judgment and decree dated 31.3.2015. The suit was ordered to be remanded to learned trial Court for decision afresh, as the learned Appellate Court had reframed Issue No.1 as under:-

“i) Whether the plaintiff is continuously using the mainds/edges of the land of the defendants to pass through on his land on khasra No. 758 and 761 for agriculture purposes as per custom prevailing in the area as alleged? OPP.”

5. The grievance of the petitioners/defendants is that the learned Appellate Court had reframed Issue No.1, without there being pleadings to that effect in the plaint. It is submitted that though the respondent/plaintiff had sought leave of the Court to amend the plaint by seeking to incorporate that the plaintiff had right of passage through the suit land by way of easement of custom. The amendment, as sought by the plaintiff was denied by dismissing the application moved by the plaintiff in that behalf vide order dated 2.3.2012. It is also pointed out that the learned Appellate Court had made a reference in the judgment dated 31.3.2015 to existence of pleadings as to easement of custom in the plaint, but such observation by the said Court is stated to have been made on the basis of proposed amendment in the plaint, which was never allowed to be taken on record.

6. Admittedly, the petitioners/defendants had not assailed the judgment and decree passed by the learned Appellate Court and had rather chosen to join the proceedings before the learned trial Court in terms of the directions issued by the learned Appellate Court. The instant petition came to be filed after an order dated 3.8.2016 was passed by the learned trial Court, making observations in following terms:-

“It is further rightly submitted that despite this due to over-sight and inadvertent omission, additional issue appears to have been framed on the basis of proposed amendment plaint, particularly on the basis of para NO.4 of the same. Since proposed plaint was never taken on record, it is evident that this error took place due to omission on the part of Civil Ahelmad in placing proposed amendment plaint despite its rejection in part A, rather than tagging it with dismissed CMA.

Nevertheless, for all intent and urposes, the plea raised by learned counsel for defendant cannot be overlooked, as it will amount to perpetuate the inadvertent error, which was never intended by learned ADL-3, Kangra at Dharmshala.

Under these peculiar circumstances, present application under Order 6 Rule 17 CPC cannot be entertained as it will be against the judicial decorum and may amount to defiance of order passed by superior Court.

However, it is equally well settled law that error on the part of the Court cann