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2016 DIGILAW 1753 (HP)

Varinder Kumar Madan v. Kali Ram

2016-08-23

P.S.RANA

body2016
ORDER : P.S. RANA, J. 1. Present civil revision petition is filed under Section 115 of the Code of Civil Procedure against order dated 18.4.2016 passed by learned Civil Judge (Junior Division) Court No. IV Shimla H.P. in Civil Suit No. 13-1 of 2016 title Varinder Kumar vs. Kali Ram and others. Brief facts of the case 2. Shri Varinder Kumar filed civil suit No. 13/1 of 2016 for declaration to the effect that defendants Nos. 1 to 4 are raising unscientific construction over Khasra Nos. 685/287/1 and 685/287/2 situated at Mohal Shoghi Tehsil and District Shimla and unscientific construction is dangerous to plaintiff and his family members as well as to the general public. Plaintiff also sought relief of permanent prohibitory injunction restraining the defendants from raising further unscientific construction and also sought relief of prohibitory injunction restraining the defendants from raising further construction without approved plan from competent authority of law. Plaintiff also sought mandatory injunction directing co-defendants Nos. 1 to 4 to demolish the construction raised by plaintiff without set back area. 3. Written statement filed on behalf of defendants pleaded therein that suit is not maintainable and suit is bad for non-joinder of necessary parties. It is pleaded that plaintiff has not sought any permission under Section 118 of H.P. Tenancy and Land Reforms Act before execution of lease deed. It is pleaded that suit land is situated in the area controlled by SADA. It is pleaded that plaintiff himself is guilty of suppressing material facts from Court and is not entitled for any relief. It is pleaded that there is huge gape between the house of defendants and house of Smt. Leela Devi from whom plaintiff has obtained lease deed of her half share of house. It is pleaded that plaintiff has no cause of action against defendants. It is pleaded that plaintiff himself is a lessee and without joining the original owners plaintiff is not entitled to any relief as sought. 4. During the pendency of civil suit plaintiff filed application under Order XXXIX Rules 1 and 2 CPC 1908 with prayer that defendants be restrained by way of ad-interim injunction from raising construction over suit land in unscientific manner. 5. 4. During the pendency of civil suit plaintiff filed application under Order XXXIX Rules 1 and 2 CPC 1908 with prayer that defendants be restrained by way of ad-interim injunction from raising construction over suit land in unscientific manner. 5. Response filed on behalf of defendants to application filed under Order XXXIX Rules 1 and 2 CPC 1908 pleaded therein that plaintiff is only a lessee and lease deed has been executed in violation of Section 118 of H.P. Tenancy and Land Reforms Act. It is pleaded that plaintiff has no prima facie case and balance of convenience in his favour and further pleaded that plaintiff would not suffer irreparable loss if ad-interim injunction is declined. Prayer for dismissal of application filed under Order XXXIX Rules 1 and 2 CPC 1908 sought. 6. Learned Trial Court on dated 4.4.2016 disposed of application filed under Order XXXIX Rules 1 and 2 CPC 1908. Learned Trial Court partly allowed the application and restrained the defendants from raising construction over suit land in an unscientific manner. Learned Trial Court further directed that defendants would be free to raise construction over suit land strictly adhering to bye laws and would raise construction in scientific manner during pendency of civil suit. Thereafter plaintiff Varinder Kumar filed appeal under Order XLIII Rule 1 CPC against order of learned Trial Court dated 4.4.2016 and appeal filed under Order XLIII Rule 1 CPC is pending before learned Additional District Judge Shimla as of today. 7. Thereafter plaintiff Varinder Kumar filed application under Section 151 CPC before learned Trial Court with prayer to direct police authority to enforce order dated 4.4.2016. Response filed on behalf of defendants pleaded therein that plaintiff has already filed appeal before learned Appellate Authority against interim order of learned Trial Court and matter is subjudice before appellate authority. It is pleaded that present application for police assistance is not maintainable due to pendency of appeal before learned Additional District Judge Shimla (H.P.). It is pleaded that defendants are not raising construction in unscientific manner. Prayer for dismissal of application for police assistance sought. 8. Learned Trial Court dismissed application for grant of police assistance on 18.4.2016 on the ground that fact as to whether construction is in unscientific manner cannot be decided by police officials at the spot which is a matter of oral evidence. Prayer for dismissal of application for police assistance sought. 8. Learned Trial Court dismissed application for grant of police assistance on 18.4.2016 on the ground that fact as to whether construction is in unscientific manner cannot be decided by police officials at the spot which is a matter of oral evidence. Learned Trial Court further held that Special Area Development Authority already took cognizance of the matter and matter is subjudice before Special Area Development Authority. Learned Trial Court further held that plaintiff can file civil contempt petition under Order XXXIX Rule 2-A CPC which is independent statutory remedy. Learned Trial Court further held that police assistance is an extraordinary remedy and learned Trial Court dismissed application for police assistance. 9. Feeling aggrieved against order of learned Trial Court dated 18.4.2016 revisionist filed present revision petition. 10. Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on behalf of non-revisionists and Court also perused entire record carefully. 11. Following points arise for determination in civil revision petition:- 1. Whether police assistance is expedient in the ends of justice as mentioned in memorandum of grounds of revision petition when appeal is pending before appellate authority against order passed under Order XXXIX Rule 1 and 2 CPC? 2. Relief. Findings upon point No.1 with reasons 12. Submission of learned Advocate appearing on behalf of revisionist that learned Civil Judge (Junior Division)-IV Shimla has committed illegality by way of rejecting the application of revisionist for police assistance is rejected being devoid of any force for the reasons hereinafter mentioned. Learned Civil Judge (Junior Division)-IV Shimla on 4.4.2016 decided application filed under Order XXXIX Rules 1 and 2 read with Section 151 CPC. Learned Civil Judge (Junior Division)-IV Shimla partly allowed the application filed under Order XXXIX Rules 1 and 2 CPC and restrained defendants from raising construction qua suit land comprised in Khasra No. 658/287/1 and 658/287/2 situated at Mohal Shoghi Tehsil and District Shimla in unscientific manner. Learned Trial Court further directed that contesting defendants Nos. 1 to 4 would be liberty to raise construction upon their share over suit land strictly adhering to bye laws and in scientific manner preventing any damage or danger to the property of plaintiff. Learned Trial Court further directed that contesting defendants Nos. 1 to 4 would be liberty to raise construction upon their share over suit land strictly adhering to bye laws and in scientific manner preventing any damage or danger to the property of plaintiff. It is also proved on record that thereafter Varinder Kumar plaintiff filed appeal under Order XLIII Rule 1 CPC against order of learned Trial Court dated 4.4.2016 which is pending for disposal before learned Additional District Judge-I Shimla H.P. In present case order of learned Trial Court dated 4.4.2016 passed under Order XXXIX Rules 1 and 2 CPC did not attain the stage of finality and order of learned Trial Court dated 4.4.2016 is subjudice before learned Appellate Court under Order XLIII Rule 1 CPC. 13. Court is of opinion that fact whether defendants Nos. 1 to 4 are raising construction in unscientific manner or not is not a question of law only but is a complicated question of facts. It is not in expedient in the ends of justice to give judicial findings relating to construction in unscientific manner on behalf of co-defendants Nos. 1 to 4 unless due opportunity is granted to both parties to adduce oral and documentaries evidence to prove their case. 14. Court is also of the opinion that fact whether defendants Nos. 1 to 4 are adhering to the bye laws or not in raising construction is also a complicated question of facts. Court is of the opinion that it is not expedient in the ends of justice to give judicial findings at this stage of case unless opportunity is granted to both parties to adduce oral and documentary evidence in support of their case. 15. Court is of the opinion that whether defendants Nos. 1 to 4 are causing damage or danger to the property of plaintiff is also issue of complicated facts. Court is of the opinion that it is not expedient in the ends of justice to give judicial findings at this stage of case unless opportunity is granted to both parties to prove their case by way of adducing oral and documentary evidence. 16. Court is of the opinion that it is not expedient in the ends of justice to give judicial findings at this stage of case unless opportunity is granted to both parties to prove their case by way of adducing oral and documentary evidence. 16. Submission of learned Advocate appearing on behalf of revisionist that Assistant Town Planner SADA Shoghi Block No. 32-A, SDA Complex Kasumpti Shimla-9 has passed the order under Sub-section 1 of Section XXXIX of H.P. Town and Country Planning Act 1977 and directed the defendants to discontinue/stopped construction vide Annexure P-5 forthwith and on this ground revision petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that civil proceedings and proceedings under H.P. Town and Country Planning Act 1977 are independent proceedings. It is also well settled law that defendants would be punished under H.P. Town and Country Planning Act 1977 independently in accordance with law. There is no evidence on record that order of Assistant Town Planner (SADA) Shoghi Annexure P-5 has attained the stage of finality. As per Section 39-A (9) of H.P. Town and Country Planning Act 1977 the provision of Act would be in addition to and would not be in derogation of any other provision of law. 17. Even revisionist has alternative statutory remedy under Order XXXIX Rule 2-A CPC relating to disobedience of ad-interim injunction. There is statutory provision of attachment of property if violation of ad-interim injunction is proved under Order XXXIX Rule 2-A CPC and there is also statutory provision of civil imprisonment in case violation or disobedience of ad-interim injunction is proved in accordance with law. It is held that revisionist has alternative efficacious statutory remedy under Order XXXIX Rule 2-A of Code of Civil Procedure 1908. 18. Submission of learned Advocate appearing on behalf of revisionist that in view of ruling reported in Latest HLJ 2015 (HP) 977 title Jagdev Singh and another vs. Subhash Chand and another present revision petition be allowed is also rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused ruling cited supra. 18. Submission of learned Advocate appearing on behalf of revisionist that in view of ruling reported in Latest HLJ 2015 (HP) 977 title Jagdev Singh and another vs. Subhash Chand and another present revision petition be allowed is also rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused ruling cited supra. The facts of present case and facts of ruling cited supra are different and ruling cited by learned Advocate appearing on behalf of revisionist is not applicable in present facts and circumstances of case because in present case ad-interim order of learned Trial Court dated 4.4.2016 passed under Order XXXIX Rules 1 and 2 CPC has not attained the stage of finality and matter is subjudice before learned Additional District Judge Shimla by way of appeal and matter in dispute inter se parties is of civil nature and is not of criminal nature. It is well settled law that Courts should not exercise inherent power when alternative efficacious statutory remedy is available. It is well settled law that inherent power under Section 151 CPC has its roots based upon concept of necessity. It is well settled law that inherent powers should be exercised by Court to do ex-debito justicial. It is well settled law that inherent power under Section 151 CPC should be exercised with circumspection. See AIR 1970 SC 997 title Nain Singh vs. Koonwarjee and others. In view of the fact that interim order dated 4.4.2016 passed by learned Trial Court under Order XXXIX Rules 1 and 2 CPC has not attained stage of finality and matter is subjudice before learned Additional District Judge by way of appeal Court is of the opinion that it is not expedient in the ends of justice to interfere in order of learned Trial Court. It is held that learned Trial Court did not commit any illegality or irregularity. Point No. 1 is answered in negative. Point No. 2 (Relief) 19. In view of findings upon point No.1 civil revision petition filed under Section 115 CPC is dismissed. Parties are directed to appear before learned Trial Court on 5.9.2016. Observations will not effect the merits of case and will strictly confine to disposal of present civil revision petition. Record of learned Trial Court and record of learned Appellate Authority be sent back forthwith along with certified copy of order. Revision petition is disposed of. Parties are directed to appear before learned Trial Court on 5.9.2016. Observations will not effect the merits of case and will strictly confine to disposal of present civil revision petition. Record of learned Trial Court and record of learned Appellate Authority be sent back forthwith along with certified copy of order. Revision petition is disposed of. All pending miscellaneous applications if any also stands disposed of.