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2025 DIGILAW 846 (HP)

Raj Kumar v. State of H. P.

2025-04-30

SATYEN VAIDYA

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JUDGMENT : (Satyen Vaidya, J.) The instant petition has been filed by the petitioners for following reliefs:- “i) That the petitioners & respondents may kindly be directed to maintain status quo and suit land may kindly be preserved during the pendency of Civil Misc. Application No. 1214 of 2024 titled as Raj Kumar versus Municipal Council Hamirpur under Order 39 Rule 1 & 2. ii) That the respondents be directed to not to dispossess the petitioners from the suit land during the pendency of the Civil Misc. Application No. 1214 of 2024. iii) That the trial court be directed to decide the Civil Misc. Application No. 1214 of 2024 i.e. application under Order 39 Rule 1 & 2 in time bound manner”. 2. Brief facts necessary for adjudication of the petition are that the petitioners herein are the plaintiffs in Civil Suit No. 459 of 2024, pending on the files of learned Civil Judge, Court No.2, Hamirpur. The suit has been filed in respect of land measuring 6112-85 square meters, comprised in Khata No. 502 Min, Khatauni No. 698, Khasra Nos. 1701/228, 2221/231 and 2220/228, situated in Up-Mohal, Hamirpur, Tappa Bajuri, Tehsil and District Hamirpur, H.P. (for short the ‘suit land’). 3. The plaintiffs are claiming their settled possession on the suit land, which otherwise is recorded in the ownership and possession of defendant No.2. The entries in the record of rights have been challenged as wrong, illegal and inoperative against the rights of the plaintiffs. The case as setup by the plaintiffs is that the suit land has been coming in continuous possession of the plaintiffs since time of their forefathers. The suit land was wrongly shown to be vested in the local body under the provisions of Himachal Pradesh Village Common Land Vesting and Utilization Act, 1975. In alternative, the plaintiffs have raised the claim to the title of the suit land by way of adverse possession. 4. The cause of action alleged in the plaint is that defendants No.1 and 2 allegedly were trying to dispossess the plaintiffs from the suit land by raising construction thereon. In this backdrop, reliefs for decree of declaration, permanent prohibitory and mandatory injunctions have been claimed. 5. 4. The cause of action alleged in the plaint is that defendants No.1 and 2 allegedly were trying to dispossess the plaintiffs from the suit land by raising construction thereon. In this backdrop, reliefs for decree of declaration, permanent prohibitory and mandatory injunctions have been claimed. 5. Alongwith the suit, the plaintiffs have also filed an application for interim injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short the ‘Code’), which has been registered as CMA No. 1214 of 2024 before the learned trial Court. 6. On 10.9.2024, the learned trial Court passed the following order in CMA No. 1214 of 2024:- “The present application file is taken up today, in view of the order dated 7.9.2024 passed in an application under Section 151 CPC for early hearing. Let, summon be issued to respondent No.1 on filing PF and CA within 7 days for 24.9.2024. Learned counsel for the applicant has submitted before Court that the respondent No.1 is raising construction and thus, trying to dispossess the applicant from the suit land. It is further submitted that the purpose of filing the suit will be frustrated if interim injunction order is not passed in favour of the applicant. I have heard learned counsel for the applicant and gone through the record at hand carefully. In view of the facts and circumstances, the parties are directed to maintain status quo qua construction, possession and nature of the suit land till next date of hearing.” 7. The application thereafter was listed on 24.9.2024 and the following order was passed:- “Learned ADA for the state has appeared on behalf of respondent No.2 who has been proceeded ex-parte vide order dated 29.7.2024. However, inadvertently the respondent No.2 has been proceeded ex-parte in this matter and the respondent No.2 is allow to join the proceedings in the present matter. Today, reply filed on behalf of respondent No.1. Copy supplied. Time prayed for filing rejoinder. Prayer considered and allowed. Let, file be listed for filing rejoinder and reply on behalf of respondent No.2 for 1.10.2024.” 8. On the adjourned date i.e. 1.10.2024, the learned trial Court passed the following order:- “Time prayed for filing rejoinder and reply on behalf of respondent No.2. Prayer considered and allowed. Let file be listed for the same on 28.10.2024.” 9. Let, file be listed for filing rejoinder and reply on behalf of respondent No.2 for 1.10.2024.” 8. On the adjourned date i.e. 1.10.2024, the learned trial Court passed the following order:- “Time prayed for filing rejoinder and reply on behalf of respondent No.2. Prayer considered and allowed. Let file be listed for the same on 28.10.2024.” 9. The plaintiffs, by way of instant petition have raised a grievance that though the learned trial Court had passed an interim order directing the parties to maintain status quo qua construction, possession and nature of the suit land till the next date of hearing on 10.9.2024 but on subsequent dates i.e. 24.9.2024 and 1.10.2024, the stay order was not extended, as a result of which, defendants No. 1 and 2 started construction work on the suit land. 10. I have heard learned counsel for the parties and have also gone through the record carefully. 11. Mr. G.D. Verma, learned Senior Advocate representing the plaintiffs/petitioners has vehemently contended that the learned trial Court has failed to follow the procedure prescribed by law and for such reason, directions are required to be passed by this Court in exercise of jurisdiction under Article 227 of the Constitution of India. He submitted that in the first instance, the learned trial Court should have extended the interim order dated 10.9.2024 on subsequent dates i.e. 24.9.2024 and 1.10.2024 or in alternative, the learned trial Court was under a legal obligation to decide the application under Order 39 Rules 1 and 2 within time stipulated under Rule 3A of Order 39 of the Code. 12. I have perused the record of learned trial Court. Civil Suit No. 459 of 2024 along with CMA No. 1214 of 2024 was taken up by the learned trial Court for the first time on 29.6.2024. In the suit as well as the application notices were ordered to be issued to the defendants/respondents for 29.7.2024 vide separate orders. 13. On 29.7.2024, appearance was put in on behalf of defendant Nos.1, 3 to 12 and 15 in the suit. Defendants No. 2 and 14 did not appear despite service and defendant No. 13 was unserved. Learned trial Court proceeded defendants No. 2 and 14 as ex-parte. In CMA No. 1214 of 2024, respondent No.1 was represented whereas respondent No.2 was proceeded ex-parte, as no one had put in appearance on behalf the said respondent despite service. Defendants No. 2 and 14 did not appear despite service and defendant No. 13 was unserved. Learned trial Court proceeded defendants No. 2 and 14 as ex-parte. In CMA No. 1214 of 2024, respondent No.1 was represented whereas respondent No.2 was proceeded ex-parte, as no one had put in appearance on behalf the said respondent despite service. 14. The suit and the application were adjourned to the next date i.e. 27.8.2024 granting opportunity to defendants/respondents to file their written statements/ replies. 15. On 10.9.2024, the suit and the application were again taken up on the basis of order passed by the learned trial Court on 7.9.2024 on the application of plaintiffs for early hearing. It was on this date that the order directing the parties to maintain status quo qua construction, possession and nature of suit land was passed by the learned trial Court. 16. In subsequent orders dated 24.9.2024 and 1.10.2024, there was no orders or endorsements that the order dated 10.9.2024 was extended. Simultaneously, it was also not recorded that the order dated 10.9.2024 passed in CMA No. 1214 of 2024 stood discharged, vacated or modified. The aforesaid two orders dated 24.9.2024 and 1.10.2024 also clearly reveal that no prayer was made on behalf of the plaintiffs to pass specific orders for extending the previous order dated 10.9.2024. The plaintiffs also did not appear to have brought to the notice of learned trial Court any grievance with respect to the violation, if any, of order dated 10.9.2024 by respondents No. 1 and 2. Admittedly, the plaintiffs have not filed any application or proceedings before the learned trial Court against the alleged violation of interim order dated 10.9.2024, passed by the learned trial Court. 17. It is clearly evident from the record that till 1.10.2024, the pleadings were not complete. Even the plaintiffs had been seeking time to file the rejoinder. There is nothing on record to suggest that the plaintiffs on any of these dates i.e. 24.9.2024 and 1.10.2024 stressed for final decision on CMA No. 1214 of 2024. 18. 17. It is clearly evident from the record that till 1.10.2024, the pleadings were not complete. Even the plaintiffs had been seeking time to file the rejoinder. There is nothing on record to suggest that the plaintiffs on any of these dates i.e. 24.9.2024 and 1.10.2024 stressed for final decision on CMA No. 1214 of 2024. 18. Order 39 Rule 3A obligates the Court to make an endeavour to finally dispose of the application under Order 39 Rules 1 and 2 within thirty days from the date of grant of an injunction, where an injunction has been granted ex- parte; and where the Court is unable to do so, it has to record reasons for such inability. In the case at hand, on 10.9.2024, when an order of status quo was passed by the learned trial Court, the respondents were already on notice. It was not an order without issuance of notices to the respondents. Therefore, Rule 3A of Order 39 would not have applied in the facts of the case. 19. Learned Senior Counsel for the plaintiffs/ petitioners has placed reliance on the judgments passed by the Punjab & Haryana High Court in Civil Revision No. 156 of 1998, decided on 7.8.2000, titled as Pirthipal Singh vs. Gurdev Singh & another, High Court of Uttaranchal in Appeal from order No. 448 of 2016 dated 27.8.2016, reported in 2016 SCC Online UTT 2234 and Allahabad High Court (Locknow Bench) dated 25.8.1993 in Shambhoo Nath Singh Yadav vs. State of UP, reported in 1993 SCC Online Allahabad 242 to assert that interim order once passed by the Court remains in force till it is modified, vacated or discharged, notwithstanding there being no order of extension of such order in all or any of the subsequent orders. The proposition of law as propagated by learned Senior Counsel for the petitioners cannot be doubted. 20. Now, the question arises whether the factual matrix of the instant case warrants orders or directions of this Court under Article 227 of the Constitution of India? 21. In my considered view, the answer has to be in negative. 22. Firstly, as noticed above, the petition is completely misconceived. The plaintiffs themselves have canvassed that merely non-extension of order dated 10.9.2024 in subsequent orders of 24.9.2024 and 1.10.2024 would not have affected the efficacy of interim order dated 10.9.2024. 21. In my considered view, the answer has to be in negative. 22. Firstly, as noticed above, the petition is completely misconceived. The plaintiffs themselves have canvassed that merely non-extension of order dated 10.9.2024 in subsequent orders of 24.9.2024 and 1.10.2024 would not have affected the efficacy of interim order dated 10.9.2024. That being so, it is beyond comprehension that what prejudice has been suffered by the plaintiffs. Their allegation that respondents No. 1 and 2 had started construction work, even if assumed to be correct, will be of no use to the plaintiffs/petitioners for their own willful omission in not bringing such fact to the notice of learned trial Court. As noticed above, the plaintiffs had neither brought any such fact to the notice of learned trial Court nor had stressed for the passing of any further orders on their application for interim injunction on such ground. 23. Secondly, it cannot be forgotten that the jurisdiction under Article 227 of the Constitution of India is not to be exercised in casual manner. 24. 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. 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.” (ii) In Radhey Shyam & Another vs. Chhabi Nath and others, (2009) 5 SCC 166, the Hon'ble Supreme Court rendered the following exposition of law:- “31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.” (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 (Ms) and Others v. 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.” 25. Keeping in view the facts of the case as also the exposition of law as noticed above, I find no justification to interfere in exercise of jurisdiction under Article 227 of the Constitution of India. The petition is accordingly dismissed. Pending applications, if any, also stand disposed of. Record be sent back forthwith.