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Himachal Pradesh High Court · body

2018 DIGILAW 1297 (HP)

Rinku Sharma v. Susheel Kumar

2018-07-13

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The plaintiff, instituted a suit for rendition, of, a decree for permanent prohibitory injunction, averring therein qua the defendants being restrained, vis-a-vis, the portion reflected as ABCD in the apposite site plan, from, carrying construction thereon, and, from closing the door shown therein, as, D-1, besides the defendants being restrained to erect, an, iron stair case upon portion ABCD. The plaintiff averred that he is, a, tenant under the defendants, in, the relevant premises. The defendants contested the suit, and, contended therein, that, the door reflected as D-1, in, the apposite site plan, being never used as egress or ingress, by the plaintiff, rather it being only used for ventilation of air. The defendants also contended that the erection, of, the iron stair case, rather occurring on 25.12.2017, hence, prior to the filing of the instant suit. 2. During the pendency of the civil suit, before, the learned trial Court, the plaintiff, hence, instituted an application, cast, under the provisions of Order 39, Rules 1 and 2 of the CPC, whereon, the learned trial Court, after considering, the relevant material placed before him, rendered an order on 6.01.2018, (i) whereunder, the defendants were restrained either personally, or through their servants, agents or assignees, from, interfering by raising construction, and, by closing door, reflected as D-1, in portion shown as ABCDEF in the apposite site plan, in hence the plaintiff making use, of, the demised premises. The afore referred pronouncement made on 6.01.2018, by the learned trial Court, being, not concerted to be reversed, thereupon, hence it acquires conclusivity. 3. On 6.01.2018, the learned trial Court also allowed the plaintiff''s application, for, appointment, of, a local commissioner, for visiting the apposite site, and, for his making an apt report, vis-a-vis, the nature and extent, of, construction, raised by the defendants, upon, the relevant site. The Local Commissioner, visited the relevant site, and, in the relevant inspection thereof, he, associated, the, presence before him, of all the contesting litigants, (i) the factum of the litigating parties taking part in the inspection, carried by the local commissioner, of the relevant site, is borne out, by their signatured statements, appended, with the report of the Local Commissioner. The Local Commissioner, visited the relevant site, and, in the relevant inspection thereof, he, associated, the, presence before him, of all the contesting litigants, (i) the factum of the litigating parties taking part in the inspection, carried by the local commissioner, of the relevant site, is borne out, by their signatured statements, appended, with the report of the Local Commissioner. The Local Commissioner, in his apposite report, report whereof, is, accompanied by the apt photographs, and, by a rough site plan, and, as stood submitted before the learned trial Court, has, made disclosures therein, (ii) qua, the possession of the plaintiff, existing, at portions CDEF in the site plan, besides has made disclosures therein qua the back door, hence, leading to the office of the plaintiff, (iii) and, furthermore, has detailed therein, qua the defendants erecting a stair case, adjoining, the, back door of the office of the plaintiff, whereupon, the plaintiff, is, precluded to open the apt door, leading to his office. The aforesaid portrayals, as, embodied in the report of the Local Commissioner, remains, apparently not objected, to, by the defendants, given, theirs, not meteing any objections thereto. Consequently, the apposite depictions/unfoldments, made, by the Local Commissioner, in his report, do acquire an aura of solemnity, and, hence, the unfoldments occurring therein, are, to be prima faice hence meted credence. 4. Subsequent, thereto, the learned trial Court, on, 06.02.2018, hence allowed, the plaintiff''s application, for, the apt ad interim order rendered on 6.01.2018, being enforced, through, the aegis of police. The aforesaid order was concerted, to be recalled, by the defendants, and, thereon a disaffirmative order, was, pronounced, on, 20.03.2018, by the learned trial Court, and, hence, the validity of the order pronounced earlier, on 6.02.2018, remains intact. The defendants, being aggrieved therefrom, hence, cast a challenge, vis-a-vis, the orders pronounced, by the learned trial Court, on 06.02.2018, (i) whereunder, the learned trial Court, upon the plaintiff''s application, cast under the provisions of 151 of the CPC, rendered an order qua the ad interim order rendered by it, on 6.01.2018, being enforced through the aegis of the police, whereunder the defendants were restrained, from, raising construction, and, closing door D-1 in a portion shown as ABCDEF, in, the apposite site plan. 5. Be that as it may, with the order pronounced on 6.01.2018, hence acquiring conclusivity, thereupon, its mandate was enjoined to be enforced. 5. Be that as it may, with the order pronounced on 6.01.2018, hence acquiring conclusivity, thereupon, its mandate was enjoined to be enforced. The orders pronounced, by the learned trial Court, for, hence ensuring its apt enforcements, by its ordering for police assistance, being meted to the applicant/plaintiff, is, obviously, within the domain, of, the conclusive mandate recorded, by he learned trial Court, upon, the plaintiff''s application, cast under the provisions of Order 39, Rules 1 and 2 of the CPC, (i) and, also meteings, of, apt police assistance, by the learned trial Court, for ensuring its enforcement, is, also within the ambit of law. Consequently, the orders pronounced, on 20.03.2018, whereunder, defendants'' application, for recalling of orders, rendered on 6.02.2018, whereunder, police assistance, stood, meted to the plaintiff, for ensuring enforcement, of, the ad interim orders pronounced, on 6.01.2018, hence cannot be construed to be ingrained, with, any inherent legal fallibility. 6. Nowat, with the defendants, not meteing objections, to, the report of the Local Commissioner, (i) thereupon, the report of the Local Commissioner, is, to be prima facie assigned solemnity, and, gravity, (ii) especially qua the mandate of the orders recorded, by, the learned trial Court on 6.01.2018, being hence infringed, (iii) besides when no relevant material has been adduced by the defendants, for, succoring their propagation qua the construction, of, an iron stair case, existing at the site, and, leading upto the office of the plaintiff, not being made, subsequent, to, the orders made on 6.01.2018, rather its construction occurring, prior, to the institution of the suit, (iv) also gives strength to the factum, of, the relevant construction being made subsequent, to the pronouncement made by the learned trial Court, on 6.1.2018, (v) and, when prima faice hence obviously rather the order rendered, on the aforesaid date rather is infringed, as, displayed by the report of the Local Commissioner, thereupon, the meteing, of, police assistance to the plaintiff, for, ensuring the enforcement, of, the mandate, of, the ad interim order recorded, on, 6.1.2018, is concludable, to be both apt, and, tenable. 7. For the foregoing reasons, the instant petition, is, dismissed, and, the impugned order is maintained, and, affirmed. The parties are directed to appear, before, the learned trial Court on 23rd July, 2018. However, it is made clear that the observations made hereinabove shall have no bearings on the merits of the case. 7. For the foregoing reasons, the instant petition, is, dismissed, and, the impugned order is maintained, and, affirmed. The parties are directed to appear, before, the learned trial Court on 23rd July, 2018. However, it is made clear that the observations made hereinabove shall have no bearings on the merits of the case. No order as to costs. All pending applications also stand disposed of. Records, if received, be sent back forthwith.