IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA th ON THE 8 DAY OF DECEMBER, 2021 BEFORE HON’BLE MR. JUSTICE MOHAMM AD RAFIQ, CHIEF JUSTICE CIVIL MISC. PETITION MAIN (ORIGINAL) NO. 91 of 2020 Between:

MAHENDER PRAKASH GUPTA, SON OF BASANT LAL, AGED YEARS, RESIDENT OF VILLAGE/WARD NO. 4, ARKI, POST OFFICE AND TEHSIL ARKI, DISTRICT SOLAN, HIMACHAL PRADESH.

…PETITIONER (BY SH. NIMISH GUPTA, ADVOCATE)

AND SECRETARY, NAGAR PANCHAYAT, ARKI, TEHSIL ARKI, DISTRICT SOLAN, HIMACHAL PRADESH.

…RESPONDENT (NONE)

_____________________________________________________

This case coming on for orders this day, Hon’ble Mr.

Justice Mohammad Rafiq, passed the following:

O R D E R.

Despite service, no one appear for the respondent. Even though, name of Mr. Nand Lal Chauhan, learned Counsel for the petitioner is shown in the Cause List.

2. This petition has been filed challenging order dated 30^thAugust, 2019, passe d by the Additional District Judge-II, Solan, H.P. in Civil Appeal No. 4-AK/14 of 2019, whereby appeal preferred by the petitioner has been dismissed and order dated 28.05.2019, passed by Civil Judge, Arki, in CMA No. 219/6 of 2018 (in Civil Suit No. 107/1 of 2018), declin ing interim injunction, has been upheld.

3. The learned Trial Court had dismissed application of the petitioner under Order 39 Rules 1 & 2 of the Code of Civil Procedure, in view of the provisions of sub-Section 3 of Section 212 of the H.P. Municipal Act, 1994, as it provides that no Court shall entertain any suit, application or other proceedings for injunction or other relief against the municipality or restrain it from taking any action or making any order in pursuance of provisions of this Section. In the opinion of the learned Trial Court, the applicant had remedy under Section 212 of the said Act to prefer an appeal against the order of the respondent before the District Judge and Pthe petitioner-plaintiff ought to have filed an appeal rather than approaching the Civil Court seeking the relief of injunction restraining the respondent from demolishing his building.

4. The petitioner had approached the Civil Court by filing a suit for grant of decree of permanent prohibitory injunction alongwith an application under Order 39 Rules 1 & 2 of the Code of Civil Pruocedure aggrieved by the order dated

24^th March, 2018 issued to him by the respondent.

5. At this stage, learned Counsel for the petitioner pursued submits that since the petitioner bona fidely pursued theh remedy of permanent prohibitory injunction, and therefore, gin the process, he could not avail the remedy of filing an i appeal and furthermore, he pursued the same line of remedy by filing the present petition challenging the order of the trial Court. He prays that he may be given liberty to approach the Court of District Judge, where appeal is provided by invoking the provisions of Section 5 as well as Section 14 of the Limitation Act 1963.

6. The prayer of the petitioner appears to be genuine. The petition is accordingly disposed of with liberty to the petitioner to file an appeal alongwith an application under Section 5 read with Section 14 of the Limitation Act, seekPing condonation of delay in filing the appeal, before the District Judge having jurisdiction, within a period of 10 days from today and if any such appeal is filed, the app ellate Court shall sympathetically consider the condonation of delay in filing the appeal so as to decide the matter on merits, rather than on technicalities, after service of notice on the opposite party, as expeditiously as possiblue.

7. The interim order passed by this Court on 23^rd July, 2021 shall remain operative for a period of 10 days from today, where after, it will be depending upon the discretion that mahy be judicially exercised by the District Judge.

g8. With these observations, the petition is disposed i of alongwith pending application(s), if any.

Copy dasti.

( Mohammad Rafiq )

Chief Justice December 8, 2021 (hemlata)