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2025 DIGILAW 601 (HP)

Tikkam Dutt v. Dharma Nand

2025-04-03

BIPIN CHANDER NEGI

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JUDGMENT : Bipin Chander Negi, J. 1. The present petition has been filed seeking following substantive reliefs:- “1. To quash and set aside impugned orders dated 28.03.2022 (Annexure P-1) passed in the Execution Petition No.2/2014 for all intent and purposes. 2. To execute the judgment and decree passed in Civil Suit No.1-1 of 2006 titled as Tikam Dutt versus Dharma Nand in letter and spirit.” 2. Heard learned counsel for the petitioner and perused the pleadings and documents appended along-with present petition. 3. The present petitioner had filed a suit for permanent prohibitory injunction and mandatory injunction with respect to the suit land. The suit so filed was decreed on 13.10.2006. The aforesaid decree had been passed ex-parte. 4. In terms of the decree passed, the present respondent had been permanently retrained from causing any obstructions, interference in the light and air of the present petitioner. Besides the aforesaid, a decree for mandatory injunction was passed to the effect that the construction raised by the respondent over the suit land be demolished. 5. In order to set aside the ex-parte order, an application under Order 9 Rule 13 of the Civil Procedure Code had been filed by the present respondent. The same had been dismissed. No appeal against the judgment and the decree dated 13.10.2006 had been filed by the present respondent. In view thereof, the same had attained finality. 6. In the aforesaid backdrop, an execution petition had been filed under Order 21 Rule 32 of the Civil Procedure Code, seeking enforcement of the judgment and decree dated 13.10.2006, on 27.06.2013 seeking demolition of the constructions raised by the respondent after the filing of the suit till the filing of the execution petition, whereby obstruction to the light and air of the petitioner was being caused. 7. In response to the aforesaid, the respondent had submitted that the present petitioner had earlier filed an execution petition dated 21.05.2007 seeking implementation of the mandatory injunction decree in the case at hand. The same had been dismissed on 17.12.2011. Rather than laying challenge to the dismissal of the previous execution petition filed, the petitioner had preferred a fresh execution petition under Order 21 Rule 32 of the Civil Procedure Code, on 27.06.2013. 8. The same had been dismissed on 17.12.2011. Rather than laying challenge to the dismissal of the previous execution petition filed, the petitioner had preferred a fresh execution petition under Order 21 Rule 32 of the Civil Procedure Code, on 27.06.2013. 8. Insofar as the enforcement of decree of mandatory injunction is concerned, in terms of Article 135 of the Limitation Act, 1963 , limitation prescribed is three years from the date of decree. The decree, in the case at hand, was passed on 13.10.2006. The present (subsequent) execution petition has been filed on 20.06.2013, therefore, insofar as enforcement of decree dated 13.10.2006 qua mandatory injunction is concerned, the execution petition so filed is barred by law of limitation. No infirmity can be found on this count with the findings returned by the executing Court. 9. Violation of a judgment and decree has to be proved beyond reasonable point as violation of decree has serious consequences of imprisonment and attachment of property. ( Raj Kumar vs. Pushpinder, 2005 (2) SLJ 1520 H.P. ). Raising of the illegal construction as alleged by the petitioner, in the case at hand, whereby light and air towards the house of the petitioner is being obstructed, has not been proved on record by leading any cogent evidence. No spot map has been placed on record regarding the alleged unauthorized construction to demonstrate the same. The testimony of the witnesses produced by the petitioner has correctly been found to be unreliable. 10. Other than the aforesaid, dismissal of the earlier execution petition on 17.12.2011, filed for similar relief (mandatory injunction) bars the present/subsequent execution petition on the principle of res-judicata in terms of explanation (vii) of Section 11 of the Civil Procedure Code. 11. Moreover the present petition has been preferred under Article 227 of the Constitution of India. The scope of jurisdiction of High Court under Article 227 of the Constitution has been expounded by the Hon'ble Supreme Court as under: “(i) In Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003) 3 SCC 524 , it has been held as under:- “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.” (iii) In Garment Craft vs. Prakash Chand Goel , (2022) 4 SCC 181 , it has been held as under:- “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira and Others vs. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 12. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 12. Thus, from the above stated exposition of law, it is clear that this Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. 13. In the case at hand, for the reasons stated herein above, I am of the considered view that no grounds have been made out in the present petition for invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 14. In view of above terms, I find no merit in the present petition and the same is dismissed accordingly. Pending miscellaneous application(s), if any, shall also stand disposed of.