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2023 DIGILAW 313 (HP)

Sunita Shandil v. Meera

2023-05-26

VIRENDER SINGH

body2023
JUDGMENT : Virender Singh, J. Petitioner-Sunita Shandil has filed the present petition, under Section 227 of the Constitution of India, against the order, dated 9th November, 2022, passed by the Court of learned Civil Judge, Court No. 6, Shimla, H.P. (hereinafter referred to as the learned ‘trial Court’) in CMA No. 3287 of 2022, titled as Sunita Shandil versus Meera and others. 2. Vide the order, as assailed before this Court, the learned trial Court has dismissed the application, under Section 151 of the Code of Civil Procedure (hereinafter referred to as the ‘CPC’), filed by the petitioner, seeking police help for enforcement of status quo order, passed by the learned trial Court on 28th September, 2021. 3. For the sake of convenience, the parties to the lis are, hereinafter, referred to, in the same manner, as referred to, by the learned trial Court. 4. Brief facts, leading to the filing of the present petition, before this Court, may be summed up, as under: 4.1. The plaintiff has filed a Civil Suit, against the defendants, for a decree for permanent prohibitory injunction, restraining defendants No. 1 and 2, from carrying out any kind of construction, on any part and portion of the land, comprised in Khewat No. 19, Khatauni No. 61 and 62, Khasra No. 2, 3, 786/1 and 1 Kita 4, measuring 00-15-07 hectares, situated at Mauza Chamyana, Tehsil Shimla (R), District Shimla, H.P. (hereinafter referred to as the ‘suit land’). 4.2. A decree for mandatory injunction has also been sought by the plaintiff, against defendants No. 1 and 2, by directing them to remove the entire construction, raised by them, on any part and portion of the suit land, beyond their share. 4.3. Further, a relief qua removal/demolition of the entire fourth storey, raised by defendants No. 1 and 2, over the part of the suit land, has also been sought. 4.4. The suit has been filed by the plaintiff, on the ground, that defendant No. 1 was the owner to the extent of 3008 shares, out of 20100 shares, of the suit land, measuring 225 sq. 4.4. The suit has been filed by the plaintiff, on the ground, that defendant No. 1 was the owner to the extent of 3008 shares, out of 20100 shares, of the suit land, measuring 225 sq. meters only and defendants No. 1 and 2 had constructed a house thereupon and while raising such construction, they had covered more land than falling in their share over the suit land, whereas, according to the plaintiff, she is the owner of almost 68% of the suit land, which has been purchased by her, vide sale deed, dated 11th April, 2019. The factum of sale, is stated to have been duly reflected, in revenue record by way of mutation No. 477. 4.5. It is the further case of the plaintiff that defendants No. 1 and 2 have raised the fourth storey of their building, which is in violation of the building bye-laws and even, the orders passed by the National Green Tribunal. 4.6. On the basis of the above facts, plaintiff has sought the relief, as claimed by her, in Civil Suit No. 159 of 2021, titled as Sunita Shandil versus Meera and others. 5. Alongwith the suit, the plaintiff has also filed an application, under Order 39 Rules 1 and 2 CPC, seeking ad interim ex-parte injunction, restraining defendants No. 1 and 2 from carrying out any kind of construction on any part or portion of the suit land, during the pendency of the suit. 6. On notice, the suit, as well as, the application, has been contested by the defendants, by filing their separate written statements and reply to the application. 6.1. Defendants No. 1 and 2 have filed their joint written statement, in which, they have taken the preliminary objection qua the fact that the suit of the plaintiff is not maintainable, as the conduct of the plaintiff to keep silence for a period of more than two years from the alleged purchase of the land and to allow her husband, Shri Ram Krishan Shandil, to continue with the earlier Civil Suit, filed by him, based on the alleged agreement to purchase of the land, dis-entitles her from seeking the relief of injunction. 6.2. 6.2. Apart from this, the preliminary objections, with regard to the estoppel, locus standi, no cause of action, the suit being bad in law, the suit being liable to be stayed under the provisions of Section 10 of the CPC, the suit being an abuse of process of law and the suit being not been properly valued for the purpose of Court fee, have been taken by defendants No. 1 and 2. 6.3. On merit, the fact that the plaintiff and defendants No. 1 and 2 are the co-owners in the suit land, has not been denied, however, it is their stand that defendant No. 1 had acquired her absolute 225 shares in Khewat No. 19, Khatauni No. 61, Kitte 3, measuring 0-12-37 hectares. She is stated to be in exclusive possession of part of area of the land comprised in Khasra No. 3, measuring 0-03-76 hectares. The other contents of the plaint have also been denied. 7. Similar type of objections have been taken by defendant No. 3, in its written statement. 8. The application, under Order 39 Rules 1 and 2 CPC, has also been contested by the defendants, almost on the similar grounds. 9. The learned trial Court, on 28th September, 2021, passed the following order: “Time prayed for filing reply. Prayer is considered and allowed. Let the matter now be listed for filing reply on 25.10.2021. Till then both the parties are directed to maintain status quo qua suit property.” 10. These interim orders were continued till 4th March, 2023, when the matter was listed for consideration. 11. During the pendency of the application, under Order 39 Rules 1 and 2 CPC, on 10th October, 2022, the plaintiff has moved the application, under Section 151 CPC, seeking police assistance for enforcing the order, dated 28th September, 2021. The said application has been registered as CMA No. 3287 of 2022. 12. By way of the said application, the plaintiff has alleged that on 28th September, 2021, the learned trial Court has passed the order, directing the parties to maintain status quo qua the suit property. These orders were stated to be passed by the learned trial Court, in the presence of the defendants, however, according to the plaintiff, on 1st October, 2022, defendants No. 1 and 2 had started collecting material for putting up brick walls on the fourth storey of the building of defendant No. 1. These orders were stated to be passed by the learned trial Court, in the presence of the defendants, however, according to the plaintiff, on 1st October, 2022, defendants No. 1 and 2 had started collecting material for putting up brick walls on the fourth storey of the building of defendant No. 1. The said storey is stated to be unauthorized. In this regard, the plaintiff has relied upon the photographs annexed with the application. 13. The alleged construction raised by defendants No. 1 and 2 is stated to be in violation of the status quo order, passed by the learned trial Court. The construction work has allegedly been started on 1st October, 2022 and at that time, there were Dusshehra Holidays in the Civil Courts. The plaintiff has reported the matter to the police, but, no action has been taken by the police. In this regard, an application was also moved by the plaintiff to the police on 6th October, 2022. Thus, it is the stand of the plaintiff that defendants No. 1 and 2 are floating the orders of the Court with impunity. 14. The application has been contested by defendants No. 1 and 2, by taking the preliminary objections, that the application is not maintainable and the plaintiff has no locus standi to file the application. 15. It is their further case that the plaintiff herself is guilty of disobeying the order of the Court, as she is carrying out illegal and unauthorized construction, despite the status quo order, passed by the learned trial Court. 16. It is the further case of defendants No. 1 and 2 that the plaintiff has been restrained by the Civil Court, vide order, dated 12th September, 2022, passed in CMA No. 123/6, passed in Civil Suit, titled as Meera versus Sunita Shandil. 17. On merit, the factual position, as asserted in the application, has also been denied. 18. Alongwith the application, the plaintiff has annexed the copy of the rapat rojnamcha, dated 1st October, 2022. Perusal of this document shows that the police has directed the parties not to raise any sort of construction and to maintain peace. Apart from this, the complaint moved by the plaintiff to the police of Police Station Dhalli has also been annexed with the application. 19. Perusal of this document shows that the police has directed the parties not to raise any sort of construction and to maintain peace. Apart from this, the complaint moved by the plaintiff to the police of Police Station Dhalli has also been annexed with the application. 19. On 10th October, 2022, the application was taken up for consideration by the learned trial Court, when the following orders came to be passed: “Office report seen. It be registered. Ld. Counsel for the applicant has moved an application u/s 151 of CPC for seeking police help for enforcing order of stay granted by this court on dated 28.09.2021. Copy supplied. Let the matter now be listed for filing reply on 14.10.2022. Meanwhile, status report from the concerned SHO of Police Station be tabled on 14.10.2022 in order to ascertain about the current situation of the disputed land qua the compliance of status quo order passed on dated 28.09.2021. Police officials are at liberty to take the assistance of revenue authorities in case they deem fit. Civil Ahlmad is directed to do the needful and further directed to annex the copy of status quo order dated 280.2021 alongwith the direction assigned to the concerned SHO.” 20. In pursuance of the said direction, SHO, Police Station Dhalli, has submitted the status report on 14th October, 2022, in which, he has mentioned that he has visited the spot and gathered information that old dispute is there between the parties. At the spot, he found two staircases, at the initial stage and those passages have been stated to be blocked by Shri R.K. Shandil. The SHO has also clicked the photographs of the spot. According to him, the steel bars were found stacked there at the spot. 21. Vide order, dated 9th November, 2022, the learned trial Court, after relying upon the report of the police, qua the fact that the construction work was found to be going on, on the spot and that the said construction was raised by R.K. Shandil, husband of the plaintiff, has dismissed the application, under Section 151 CPC. These findings have been assailed by the plaintiff, before this Court, by way of the present proceedings. 22. These findings have been assailed by the plaintiff, before this Court, by way of the present proceedings. 22. During the pendency of the present petition, on being directed, list of litigation, pending between the parties, has been submitted, according to which, there are as many as fourteen different proceedings, pending between the parties. Some of the proceedings are in the shape of Civil Suits and some are under the provisions of IPC/CrPC. 23. On 23rd December, 2022, the parties to the present lis were restrained from raising any sort of construction over the subject matter of the suit land. 24. On the basis of the grounds of petition, as taken in the present petition, Mr. Ankush Dass Sood, learned Senior Counsel, assisted by Mr. Vivek Negi, learned counsel appearing for the petitioner, has prayed that the procedure adopted by the learned trial Court, seeking the status report from the police, is unknown to the law and once, the orders of the status quo have been passed by the learned trial Court, then, the plaintiff is entitled for the relief, as claimed in the application, under Section 151 CPC, i.e. seeking police assistance to implement the order, passed by the learned trial Court on 28th September, 2021. 25. On all these submissions, a prayer has been made to allow the petition. 26. Per contra, the prayer, so made, by the learned Senior Counsel, appearing for the petitioner, has been opposed by Mr. Y.P. Sood, learned counsel appearing for respondents No. 1 and 2, on the ground that the plaintiff, on account of her own act and conduct is not entitled for the relief, as claimed in the application and her application has rightly been dismissed by the learned trial Court. 27. In addition to this, it has also been argued that the powers of this Court, under Article 227 of the Constitution of India, are to be exercised sparingly, in appropriate cases. 28. To buttress his contention, learned counsel appearing for respondents No. 1 and 2 has relied upon the decision of the Hon’ble Supreme Court in Garment Craft versus Prakash Chand Goel, reported in (2022) 4 Supreme Court Cases 181. 29. 28. To buttress his contention, learned counsel appearing for respondents No. 1 and 2 has relied upon the decision of the Hon’ble Supreme Court in Garment Craft versus Prakash Chand Goel, reported in (2022) 4 Supreme Court Cases 181. 29. Perusal of the record shows that the application, under Order 39 Rules 1 and 2 CPC, has not yet been decided by the learned trial Court, however, during the pendency of the said application, the learned trial Court has passed the order, directing the parties to the lis to maintain status quo qua the suit property. 30. The power of the Court, under Order 39 Rules 1 and 2 CPC, is to preserve the subject matter of the lis and to maintain the status quo, regarding the suit property, as, it exists on the date of inception of the lis between the parties. 31. By way of the application, under Section 151 CPC, the plaintiff has sought the police assistance, to implement the status quo order, which has been passed by the learned trial Court, in this case. 32. Interestingly, instead of acceding to the request made by the plaintiff, the learned trial Court has adopted a novel method by seeking the status report from the SHO of the Police Station concerned. 33. Admittedly, the person, to whom the direction has been given, does not fall within the definition of ‘revenue officer’, nor, such method could be adopted by the learned trial Court. The situation would have been otherwise, had the learned trial Court directed the SHO to give assistance to the Court, for implementation of its order, with regard to the status quo. 34. The purpose of seeking police assistance, to the considered opinion of this Court, was to implement the order passed by the learned trial Court and the SHO of the Police Station, to whom the direction was given, has moved a step further, by adopting the procedure to enter the rapat rojnamcha in the relevant register. His report, dated 14th October, 2022 is totally silent as to how he had concluded that the construction has been raised by Shri Ram Krishan Shandil. The photographs, which have allegedly been annexed with the application, even do not bear the signatures of the SHO. 35. His report, dated 14th October, 2022 is totally silent as to how he had concluded that the construction has been raised by Shri Ram Krishan Shandil. The photographs, which have allegedly been annexed with the application, even do not bear the signatures of the SHO. 35. Since, the learned trial Court has not adopted the proper procedure for implementation of its order, dated 28th September, 2021, as such, this Court refrains itself from commenting upon the report, as submitted by the SHO, in this case. 36. Moreover, the application, under Section 151 CPC, which has been moved for seeking the police assistance, to implement the order of status quo, passed by the learned trial Court, is a request to the Court to implement its order. The said application is not meant to penalize any one, unless, the learned trial Court comes to the conclusion that any of the parties has, intentionally and willfully, violated the order of status quo. For that purpose, a specific provision, in the shape of Order 39 Rule 2A CPC is there. The application, which has been moved by the plaintiff, was simply for seeking the assistance to get the implementation of the order passed by the learned trial Court, dated 28th September, 2021. 37. Perusal of the order, dated 28th September, 2021, shows that the learned trial Court has directed both the parties to maintain status quo qua the suit property. Meaning thereby, that order is binding upon both the parties and it is for the learned trail Court to get its order implemented, affecting the rights of both the parties. In other words, it can be said that the order, dated 28th September, 2021, cannot be said to have been passed in favour of any of the parties, as, it applies to both the parties to the lis. 38. It has rightly been argued by the learned counsel appearing for the petitioner, that the report of the SHO, Police Station Dhalli, is totally silent about the fact as to who had identified the structure, as well as, the suit land and how he came to the conclusion that the construction has been raised by one of the parties to the lis. 39. Considering all these facts, the order passed by the learned trial Court does not pass the judicial scrutiny by this Court, as such, the same is set aside. 39. Considering all these facts, the order passed by the learned trial Court does not pass the judicial scrutiny by this Court, as such, the same is set aside. The matter is remanded back to the learned trial Court, with a direction to decide the application afresh, in view of the observations made by this Court, while deciding the present matter. 40. Record of all the cases be sent back. 41. Parties, through their respective counsel, are directed to appear before the learned trial Court on 12th June, 2023, at 10.00 a.m. 42. Pending miscellaneous applications, if any, shall also stand disposed of accordingly.