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2016 DIGILAW 1512 (HP)

Jagdish Ram v. Ved Prakash

2016-07-28

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition is maintained by the petitioner-plaintiff (hereinafter referred to as ‘the petitioner’) against the order of learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, H.P. passed in CMA No. 15-G/2005/2004, dated 30.11.2006, whereby the order of learned Civil Judge (Junior Division), Court No. 2, Dehra, District Kangra, H.P., passed in application under Order 39, Rule 2-A CPC, with respect to removal of iron stairs by the respondent, was set aside. 2. Briefly stating the facts giving rise to the present petition are that the petitioner instituted a suit against the defendant (hereinafter referred to as ‘the respondent’) seeking permanent prohibitory injunction, wherein it was averred that defendant has raised construction by encroaching upon a common passage used for ingress and egress. The petitioner had also sought alternative relief of mandatory injunction, in case the defendant succeeds in raising the construction. The suit was filed alongwith application under Section 39, Rule 2-A CPC for interim stay order, wherein the learned Trial Court, vide order dated 30.09.2004, directed the respondents to remove the iron stairs with immediate effect and file an undertaking in the Court within 24 hours to the effect that he has removed the said iron stairs and further that he would not cause any hindrance on the disputed path till the disposal of the main suit. Despite the orders of the learned Trial Court, the defendant continued with the construction. The Local Commissioner also visited the spot and submitted the report. On the assurance of the parties, the learned Trial Court, vide order dated 30.12.1999, directed the parties to maintain status quo qua nature of the suit land and path. However, the defendant in the month of November, 2002, erected the iron stairs, blocking the path of the petitioner and also in utter disregard to the order of the learned Trial Court. 3. The respondent, by filing reply to the application, admitted that status quo order had been passed by the learned Trial Court. It is also averred that report of Shri V.S. Gill, Advocate, was improper. The defendant was not present in the village during third week of November, 2002, and his family members by supplanting old bamboo stairs, which got damaged, tethered iron stairs. It is also averred that report of Shri V.S. Gill, Advocate, was improper. The defendant was not present in the village during third week of November, 2002, and his family members by supplanting old bamboo stairs, which got damaged, tethered iron stairs. The defendant has further averred that the stairs were not supplanted over the path (deodi) and the existence of deodi was to be decided in the civil suit. The defendant prayed for dismissal of the application. 4. Anchoring upon the pleadings of the parties, the learned Trial Court, vide order dated 01.07.2004, framed the following points for determination: “1. Whether the respondent has disobeyed the order dated 30.12.1999, passed by this Court in CMA No. 32/99/98, titled as Jagdish Ram vs. Ved Parkash? 2. Final order.” 5. The learned Trial Court directed the respondent to remove the iron stair case immediately and to file an undertaking in the Court within 24 hours to the effect that he has removed the said iron stairs. Thereafter, the learned First Appellate Court allowed the appeal and set-aside the order of the learned Trial Court. The learned senior counsel for the petitioner has argued that the learned First Appellate Court has committed illegality in allowing the appeal, as the proceedings under Order 39, Rule 2-A CPC are separate proceedings and has nothing to do with the Civil Suit. He has further argued that now the suit has been decreed and in view of this, the findings arrived at by the learned First Appellate Court, presuming that the suit is dismissed, are required to be reconsidered. On the other hand, the learned senior counsel for the respondent has argued that the present petition is not maintainable under Article 227 of the Constitution of India as the remedy is to file a revision petition and he has further argued that the findings given by the learned First Appellate Court are as per law. In rebuttal, the learned senior counsel for the petitioner has argued that the present petition is maintainable under Article 227 of the Constitution of India and to fortify his arguments he has relied upon order dated 12.05.2016, passed by Hon’ble Single Judge of this Court in CMP(M) No. 1656 of 2015 in RSA No. 110 of 2007, titled as Kaushalya Devi vs. Kaushalya Devi and others, and argued that the proceedings under Order 39, Rule 2-A CPC are independent proceedings. This Hon’ble court in the case cited above has held as under: “13. It is more than settled that proceedings under Order 39 rule 2A are separate and distinct and in case the same have commenced during the pendency of the suit or appeal, then the subsequent dismissal of the suit/appeal does not render the interim orders passed earlier as nonest or without jurisdiction. For that purpose, it has to be seen whether the order of injunction at the time when it was in force has been violated and disobeyed, because the person sought to be punished for disobedience or violation of interim orders is sought to be punished for such the time it was in operation or else in case such person goes unpunished only because either the order is subsequently vacated or main suit or appeal itself is dismissed, this would be subversive of rule of law and would seriously erode the dignity and the authority of the Courts.” 6. I have gone through the record in detail. It is clear that now in an appeal against the dismissal of the suit of the plaintiff, the First Appellate Court has decreed the suit. As now the situation has changed and also in view of the judgment of the Hon’ble Court, as discussed hereinabove, the petitioner under Article 227 of the Constitution of India has approached this Court in exercise of the supervisory powers, which is an extraordinary remedy and this court has the powers to exercise the jurisdiction to meet the ends of justice. Further it has been argued that as the learned First Appellate Court has set-aside the order of the learned Trial Court on the ground that the suit was dismissed and thereafter the suit was decreed, the only course now open to this Court is to remand the case back to the learned First Appellate Court to decide the same in accordance with law, in view of the changed circumstances. Accordingly, the present petition is allowed and the proceedings are ordered to be remanded back to the learned First Appellate Court to decide the same afresh in accordance with law. The parties to appear in the learned First Appellate Court on 22nd August, 2016. 7. In view of the above, the petition stands disposed of, as also the pending applications, if any. 8. The parties to appear in the learned First Appellate Court on 22nd August, 2016. 7. In view of the above, the petition stands disposed of, as also the pending applications, if any. 8. The Registry is directed to send the records of the learned Courts below forthwith so as to reach the learned Court well before the date fixed.