Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1706 (HP)

Dinesh Ranta v. Pushpa Chauhan

2018-09-20

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. In the instant petition, a, challenge, is, cast upon the orders, rendered, by the learned Civil Judge (Junior Division) Court No. 3, Shimla, upon, RBT No. 1611 of 15/2013, whereunder, the, plaintiffs’ application, cast, under the provisions, of, Order 6 Rule 17, CPC, was allowed. 2. On an apt scanning of the plaint, it is discernable, qua the plaintiff, raising construction upon land bearing khasra No. 1154/1, and, the, construction being raised, strictly in consonance, with, the map sanctioned, by the competent authority, and, (i) hers leaving set backs from all the sides, (ii) however, the codefendants No.1 and 2, while raising construction, upon, the adjoining khasra numbers, are, hence averred, to, raise construction rather by flouting the approved plan, non adherence whereof, is, espoused in theirs, not, leaving the apt set backs, (iii) theirs raising projections, hence, the latter encroaching the land, and, the set backs, left by the plaintiff upon her land. The defendants instituted written statement, and, therein rather denied the aforesaid averments, and, contrarily contended qua the plaintiff hence not leaving the apt set backs, in her raising construction, upon the land, owned and possessed by her. 2. During the pendency of the suit, before the learned trial Judge, an application, cast, under the provisions of Order 6 Rule 17, was, instituted therebefore, and, the apt leave of the Court was strived hence, for, incorporating, in the initially instituted plant, the, hereinafter extracted amendments:“ i The applicant may be allowed to add the following word “and for declaration” in the detail of the description of suit, after memo of parties, after the word “mandatory injunction” and before the word “as detailed in the body of the plaint”. ii. The applicant/plaintiff may be allowed to add the new para after para 14 as para 14 (a) as under: “14(a). That the defendants No. 1 and 2 have submitted their revised building plan of one storey i.e. ground floor for the purpose of approval with the defendants No. 3 and 4. This revised plan/map is submitted by defendants No. 1 and 2 despite the fact that they have not only covered their entire set off are but they are also trying to encroach and to lay the over projection over the set off area and construction of the plaintiff. This revised plan/map is submitted by defendants No. 1 and 2 despite the fact that they have not only covered their entire set off are but they are also trying to encroach and to lay the over projection over the set off area and construction of the plaintiff. The defendant No. 3 and 4 without considering this aspect, so as to help the defendant No. 1 and 2 have approved/sanctioned the revised map of one storey i.e. ground floor of the defendants No.1 and 2. This approval/sanction of the revised map/plan of the defendants No. 1 and 2, by the defendants No. 3 and 4 is against the procedure and against the H.P. Town and Country Planning Act and Rules framed thereunder and the building bye laws. This sanction/approval of one storey i.e. ground floor of map/plan of defendant No.1 and 2 by defendants No. 3 and 4 is wrong, illegal and against the procedure and is liable to be declared as null and void. The NOC issued by defendant No. 3 and 4 in favour of defendant No. 1 and 2 for installation of electricity and water connection deserves to be withdrawn. The same is result of misrepresentation of facts and the conclusiveness of the defendants.” iii. That similarly the applicant/plaintiff may be allowed to add new relief in the prayer clause after para (II) and before para (III) as para (II) (a) as under: “(II)(a). That the sanction/approval of the revised map/plan of defendant No. 1 and 2 by defendant No. 3 and 4 is wrong and illegal and the sanction/approval of the revised map/plan of defendant No.1 and 2 is liable to be set aside and NOCs for meter and electricity connections deserve to be withdrawn.” 3. As aforestated, the apt leave was granted to the plaintiff, and, codefendants No. 1 and 2, being aggrieved therefrom, hence instituted the instant petition, before this Court. 4. The learned counsel for the petitioner, has, contended with much vigor before this Court, that, with an alternative statutory remedy being available to the plaintiff, for redressing her grievance, hence the leave, as accorded, by the learned trial Court, being stained with, a, vice, of, gross infirmity. 5. 4. The learned counsel for the petitioner, has, contended with much vigor before this Court, that, with an alternative statutory remedy being available to the plaintiff, for redressing her grievance, hence the leave, as accorded, by the learned trial Court, being stained with, a, vice, of, gross infirmity. 5. With the plaintiff, in the initially instituted plaint, rearing the afore averments, and, with the approval standing granted by codefendants No. 3 and 4, to, the apt revised plan, instituted before them, by codefendants No. 1 and 2, (a) thereupon the aforesaid approval, when, occurred subsequent to the prior thereto instituted plaint, hence also when the construction, as stood raised, by codefendants No. 1 and 2, was earlier canvassed, to, on the, afore anvil, hence, infringe the mandate of law, (b) thereupon when, the, aforesaid purported encroachment, yet, not being meted an appropriate adjudication, rather, with its purportedly constituting, a, continuing invasion, upon the land of the plaintiff, (c) thereupon even the validity, of, approving, of, the revised plans, was, enjoined to be incorporated in the preinstituted plaint, and, the leave in respect thereof, as granted, was also permissible under law. 6. Even though, there, is, an apt statutory mechanism hence available, (a) for recourse by the plaintiff, for hers redressing her grievance, yet, with hence no mandate standing encapsulated, in, the H.P. Town & Country Planning Act, provisions whereof apply, vis-a-vis, the area whereat the apt construction exists, (b) thereupon for setting at rest, the afore competing contentions, raised, by the contesting litigants, the leave as granted is neither grossly illegal nor hence is stained with any vice of any impropriety. Contrarily, the apt leave would facilitate, the, striking of apt issue(s) in consonance therewith, and, also would enable the adduction, of, apt evidence thereon, and, rather would empower the learned trial Judge, to, clinch, the, entire gamut, of, the controversy, interse the parties at contest. 7. In view of the above observations, the instant petition stands dismissed, and, the impugned order is affirmed and maintained. All pending applications, if any, also stand disposed of. 8. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case, and, the learned trial Court shall decide the matter uninfluenced, by any observation made herein above.