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Himachal Pradesh High Court · body

2018 DIGILAW 607 (HP)

Karan Singh v. Ranvir Singh

2018-04-11

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J —By way of this petition filed under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:- "It is, therefore, most respectfully prayed that the present petition may kindly be allowed and impugned order dated 17.09.2015, passed In CMA No. 02-CMA /140/15 may kindly be set aside by affirming the order dated 13-08-2014 passed by ld Trial Court i.e. civil Judge (Jr. Divn.) , Rajgarh, in CS/4- 1 of 2014 and all the co-sharer be permitted to use their right to the extent of their respective share in the suit land in the interest of law and justice." 2. Brief facts necessary for adjudication of the present petition are that a suit for declaration and consequential relief of permanent injunction has been filed by the present respondents No. 1 and 2/plaintiffs against the present petitioner as also proforma respondents. Said suit is pending adjudication in the Court of learned Civil Judge (Jr. Divn.) Rajgarh, District Sirmaur. Alongwith the suit, an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure was also filed by the plaintiff which was only partially allowed by the learned trial Court. 3. Feeling aggrieved by the said order, plaintiffs filed an appeal before the learned Appellate Court and vide impugned order, learned Appellate Court allowed the appeal in the following terms:- "In view of my findings on the Point No. 1 above, the appeal succeeds and is accordingly allowed and the order of ld. Trial Court in civil misc. application No. 10/6 of 2014, whereby the application under Order x xXIX Rules 1 and 2, read with Section 151 CPC, allowing the respondent to extract resin from pine trees from Khata Khatauni No. 44/77 and 42/75 is set aside and it is directed that the parties shall maintain status quo qua the remaining land qua user as to today, during the pendency of the main suit. It is further directed that the ld. Trial Court after completing the service and taking the pleadings on record, tried to dispose of the matter within one year of framing of the issues. If any of the parties pray for treating the issues regarding jurisdiction or maintainability as preliminary issue, then the ld. Trial Court shall proceed with that case according to law. The parties are directed to appear before the ld. If any of the parties pray for treating the issues regarding jurisdiction or maintainability as preliminary issue, then the ld. Trial Court shall proceed with that case according to law. The parties are directed to appear before the ld. Trial Court on 12-10-2015. Memo of costs be prepared accordingly. A copy of this judgment along with the records of the ld. Trial Court be sent back and the record of this Court after due completion, be consigned to record room." 4. This appeal was filed in month of March, 2016 and today we are in the month of April, 2018. During the pendency of this petition, on 10.01.2018, this Court has passed the following order:- "As per report of the Registry, steps for the service of proposed LRs of respondent No.6 not taken. Learned counsel for the petitioners prays for and is granted a week''s time to do the needful. Thereafter notices be issued to the proposed legal representatives of respondent No.6 returnable for 28.3.2018. A perusal of the order impugned demonstrates that, inter alia, directions issued by the learned appellate court were also to the effect that learned trial court after completing the service and taking the pleadings on record shall make an endeavour to decide the suit within one year. This order was passed on 17.9.2015 and today we are in the month of January, 2018. There is no stay by this Court either against the order which stands impugned by way of this petition or against the proceedings which are pending before the learned trial court. Learned counsel for the parties informed that suit is still pending adjudication before the learned trial court. Before the next date of hearing, Registrar (Judicial) shall call for a report from the Court concerned as to why suit itself was not decided within the period so indicated in its order by the learned appellate authority by mentioning in its report that delay which has occurred in the adjudication of the civil suit is attributable to which party. List on 28.2.2018." 5. Pursuant to the report of the learned Civil Judge (Jr. Divn.) , Rajgarh, this Court passed the following order:- "Report has been received from the Court of learned Civil Judge, Rajgarh, District Sirmaur explaining therein as to why the case could not be decided within the time frame, as was envisaged in the order passed by the learned appellate court. Pursuant to the report of the learned Civil Judge (Jr. Divn.) , Rajgarh, this Court passed the following order:- "Report has been received from the Court of learned Civil Judge, Rajgarh, District Sirmaur explaining therein as to why the case could not be decided within the time frame, as was envisaged in the order passed by the learned appellate court. After perusing the averments made in the report, this Court is satisfied that the learned court below could not decide the civil suit within the time frame so fixed by the learned appellate court because of circumstances which were beyond the control of the learned court below. The report is accordingly accepted. CMP(M) No. 1625 of 2017 Notice returnable for 11.4.2018. Steps for the service of proposed legal heirs be taken within one week. At this stage, Mr. Rupinder Thakur submits that respondent No.8 is also died during the pendency of the appeal. The factum of the death of respondent No.8 during the pendency of the appeal is taken on record. List on 11.4.2018." 6. Today, on the query as to what is the stage of the case, learned Counsel for the parties have informed the Court that matter is at the stage of evidence. 7. I have heard learned Counsel for the petitioner as also perused the impugned order. 8. A perusal of the impugned order demonstrates that learned Appellate Court has directed the parties to maintain status quo qua the ''user'' of the suit land. Learned Appellate Court has assigned reasons which are enumerated in paras 12 and 13 of the order as to why such order has been passed, which are quoted herein-below:- "12. The perusal of the record would show that the appellants had challenged the partition by alleging that the land was illegally partitioned and they were not afforded any opportunity and that the appellants have been allotted less land. It was also alleged that the respondents forcibly ousted the appellants from the suit land. There is no denial from the said of the respondents in their reply that the appellants had not right in the suit land, but they only contended that the suit land had been partitioned and mutation attested and that the warrant of possession was also executed. Therefore, the appellants cannot agitate the matter now. But, by not challenging the order of the ld. Therefore, the appellants cannot agitate the matter now. But, by not challenging the order of the ld. Civil Judge as contained in Para No. 11 of the order, whereby they were restrained from interfering in Khata/Khatauni No. 44/77 and 42, 75, they appeared to be somewhat admitted the claim of the appellants. Had the suit land been finally partitioned and nothing was to be decided by the revenue authorities, then the respondents would also have challenged the order of the ld. Civil Judge. Therefore, there appears force in the submissions of the ld. Counsel for the appellants that it would be difficult for them to keep the account of the resin tapped or sold by the respondent and it would lead to multiplicity of litigation. Therefore, the ld. Trial Court should have asked the parties to maintain status quo qua the user of the suit land during the pendency of the main suit. 13. After going through the entire record, it appears that the order of ld. Trial Court allowing the respondents to extract the resin from the pine trees from the land except Khata/Khatauni No. 44/77 and 42/75 is required to be set aside and parties have to be directed to maintain status quo, qua the user of the land by all the parties, as of today. However, at the same time, the ld. Trial Court is required to be directed to frame the issues in the main suit and then dispose of the matter within one year of the framing of the issues, as few of the parties have only to be summoned and the case could be concluded at the earliest." 9. The reasonings so assigned by the learned Appellate Court as to why it has directed the parties to maintain status quo qua the ''User of the land'' are, in my considered view, duly justified in the peculiar facts of the case. Learned Appellate Court has correctly observed that in case the order which was passed by the learned Trial Court in the application under Order 39, Rules 1 and 2 was not interfered with, then the same would have resulted in multiplicity of litigation. Learned Appellate Court has correctly observed that in case the order which was passed by the learned Trial Court in the application under Order 39, Rules 1 and 2 was not interfered with, then the same would have resulted in multiplicity of litigation. Therefore, in my considered view, the order so passed by the learned Appellate Court does not call for any interference as besides being a well reasoned order it is a cogent order passed in the facts and circumstances which calls for no interference in exercise of powers conferred upon this Court under Article 227 of the Constitution of India. Accordingly, as there is no merit in the present petition, the same is dismissed. Pending miscellaneous application(s) , if any, also stand disposed of. No order as to costs.