Chamrol vs Shri Nanak Chand Son Of
2021 Latest Caselaw 4035 HP

                                            Reportable




                                                         .
    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA





                ON THE 20TH DAY OF AUGUST, 2021
                          BEFORE





            HON'BLE MR. JUSTICE SURESHWAR THAKUR

            REGULAR SECOND APPEAL NO. 63 OF 2007
    Between:-





    BHAGI RATH (SINCE DECEASED)
    THROUGH         HIS     LEGAL
    REPRESENTATIVES:-

    (A)    SMT. DAYAWANTI, WIDOW

           OF SHRI BHAGIRATH.

    (B)    SHRI SURESH SHARMA,
           SON OF SHRI BHAGIRATH.



    (C)    SMT.   UMA   SHARMA,
           DAUGHTER   OF   SHRI
           BHAGIRATH.




    ALL   RESIDENTS OF  VILLAGE





    CHAMROL,    P.O  SHALAGHAT-
    DOCHI, TEHSIL ARKI, DISTRICT
    SOLAN, H.P.





                                            ........ APPELLANTS
    (BY MR. BHUPENDER GUPTA, SENIOR
    ADVOCATE WITH MR. JANESH GUPTA, ADVOCATE)

    AND

    1. SHRI NANAK CHAND SON OF
       SHRI   SAINU,  R/O VILLAGE
       CHAMROL, P.O SHALAGHAT,
       TEHSIL     ARKI,   DISTRICT
       SOLAN.H.P.
    2. SHRI HET RAM SON OF SHRI
       SAINU   (SINCE DECEASED)




                                        ::: Downloaded on - 31/01/2022 22:55:23 :::CIS
                                          2



          THROUGH HIS LEGAL
          REPRESENTATIVES:-




                                                                  .

    (A)        SH. AMAR DEV, SON OF
               LATE SHRI HET RAM.





    (B)        SMT. ANITA, DAUGHTER OF
               LATE SHRI HET RAM.

    (C)        MS. GODAVARI, DAUGHTER
               OF LATE SHRI HET RAM.

    (D)        SMT.   KRISHNA

               LATE SHRI HET RAM.
                       r            to
                                  ALIAS
               SULEKHA, DAUGHTER OF

          ALL   RESIDENTS     OF   VILLAGE
          CHAMROL,      P.O    SHALAGHAT,
          TEHSIL ASKRI, DISTRICT SOLAN. .P.



                                                     .....RESPONDENTS
    ( BY. G.D VERMA, SR. ADVOCATE WITH
    MR. B.C VERMA, ADVOCATE)




    RESERVED ON: 12.8.2021





    DECIDED ON: 20.8.2021





     This appeal coming on for orders this day, the Court passed the following:-

                                 JUDGMENT

The predecessor-in-interest of the appellants herein (for

short the plaintiff) instituted a Civil Suit bearing No. 24/1 of 2000

before the learned Civil Judge (Jr. Div) Arki, District Solan, H.P. In

the afore suit the plaintiff claims the making of a decree of

permanent prohibitory injunction, and, for possession, vis-à-vis, land

comprised in khata-khatauni No. 12/12, Khasra No. 64, measuring

.

1-13 bighas, situated in Village Chhamrol, Pargana Rohanj, Tehsil

Arki, District Solan, H.P (for short 'the suit land"), and against the

defendants/respondents (for short "the defendants").

2. The learned Civil Judge concerned on 23.7.2005, upon,

Civil Suit No. 24/1 of 2000, made a verdict of dismissal. The plaintiff

being aggrieved by the verdict of dismissal, hence recorded by the

learned trial Court, preferred Case No. 14-A/FTC/13 of 05/06, before

the learned Addl. District Judge (Presiding Officer Fast Track Court)

Solan, District Solan, H.P. Upon the afore Civil Appeal, the learned

first Appellate Court, made a verdict rather affirming the verdict

(supra) as made by the learned trial Court. Consequently, the

plaintiff being aggrieved therefrom, is, led to institute there-against

the instant Regular Second Appeal before this Court.

3. When the instant appeal came up for admission before this

Court, this Court had admitted the appeal on 4.3.2008, on the here-

in-after extracted substantial questions of law No.1 to 3:-

"1. Whether the Lower Appellate Court has committed

grave procedural illegality and irregularity in confining its

findings only to the question of maintainability of the suit

as formulated under Point No.1 without deciding the

merits of the case when points No.2 and 3 were

.

specifically formulated?

2. Whether both the Courts below have fell in

grave procedural error and committed illegality and

irregularity in holding that the suit filed by the plaintiff-

appellant was barred by the provisions of Order 2 Rule

2, Order 9 Rule 9 and Order 23 Rule 1 of the Code of

Civil Procedure, are not the findings returned by both the

Courts below erroneous, illegal and perverse when

cause of action and the relief claimed in both the suits

were not same?

3. Whether the trial Court has committed grave

error of law and jurisdiction in not appointing the Local

Commissioner when the dispute between the parties

was boundary dispute especially when the trial court

rejected the demarcation reports proved on record by the

plaintiff-appellant?"

4. The relief(s) as encapsulated in the relief cause of the plaint

become extracted hereinafter:-

"It is therefore, prayed that the defendant may kindly be

restrained from dispossessing the plaintiff from the suit

land and from diverting the filthy water of their houses

into the suit land by granting decree for permanent

.

prohibitory injunction.

(ii) The defendant No.1 may also kindly be

directed to handover back the possession of 4 biswansi

of land shown in the annexed tatima as mark 64/1 by

granting decree of possession in favour of the plaintiff.

awarded."

r to Any other relief which this Court deem fit may kindly be

5. The plaintiff in proving the afore aspired relief, and,

concomitantly also for the relief supra becoming granted to them,

hence made reliance(s) respectively upon Ex. PW-4/A prepared on

19.7.1996, and, upon Ex. DW-1/C, prepared on 29.1.1998. Both the

afore alluded exhibits are the demarcation reports prepared by the

demarcating Officer, and, both reveal therein that a part of the suit

land becoming encroached, upon by the defendants. The making of

the afore alluded exhibits was respectively visible prior to the

institution of instant suit.

6. The plaintiff had earlier to the institution of Civil suit No. 24-

1 of 2000, rather instituted a suit carried in Ex. DW-1/E, before the

learned Civil Judge (1st Class) Arki. The afore Civil Suit suffered, on

12.1.2000, the ill fate of its dismissal in default. A reading of Ex. DW-

1/E, discloses that the suit khasra numbers as carried therein are

.

completely analogous to the khasra numbers as carried in the

instant plaint, and, further more, the memo of parties carried therein

are also completely similar to the memo of parties, as, carried in the

instant suit. The effect, of the afore dismissal in default of the earlier

suit inter-se parties hence holding the completest analogity vis-à-vis

the parties at hand, and, also the effect of all causes of action, and,

suit khasra numbers carried therein, also being completely identical

to the suit khasra numbers in the extant suit, and, given that despite

dismissal of the earlier suit in default, and, yet the order dismissing

the suit in default, as made on 12.1.2000, becoming not attempted

to be set aside, through an application cast by the aggrieved

plaintiff, under, the provisions of Order 9 Rule 9 of Code of Civil

Procedure, provisions whereof stand extracted hereinafter, is that it

does constrain, this Court to conclude, that the plaintiff's extant suit,

rather becoming hit by the vice of statutory estoppels(s).

"Order IX rule 9 OF CODE OF CIVIL PROCEDURE: Decree against plaintiff by default bars fresh suit- (i) Where a suit is wholly on partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and, if he satisfies the

Court that there was sufficient cause for his non-

.

appearance when the suit was called on for hearing, the

court shall made an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit,

and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the

opposite party."

7. Further more the afore alluded demarcation reports,

carrying the afore echoings therein, were respectively prepared in

the year 1996 and in the year 1998, hence their preparations did

occur either to the institution of the former suit by the plaintiff before

the Civil Judge concerned, or and, during the pendency of the earlier

suit. However, despite the existence of the afore made demarcation

report(s) at the afore stages, yet the plaintiff did not choose to make

any reliance(s) upon them. Omission (supra) on the part of the

plaintiff, to, make reliance(s) upon the demarcation reports (supra)

as became respectively prepared earlier to the institution of the

former suit or during the pendency of the earlier suit, does constrain

this Court, to, attract against the errant plaintiff, the mandate

enshrined in Order 2 Rule 2 of Code of Civil Procedure, provisions

whereof stand extracted hereinafter:-

" ORDER II RULE 2 OF CODE OF CIVIL PROCEDURE:

2. Suit to include the whole claim- (1) Every suit shall

.

include the whole of the claim which the plaintiff is entitled

to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the

suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally

relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

Omission to sue for one of several reliefs- A person

entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all

such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation- For the purpose of this rule an obligation and a collateral security for its performance and

successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of

action."

8. Imperatively since the earlier suit of the plaintiff, did contain,

causes of action hence similar to the one as become voiced in the

instant suit, besides when the memo of parties as carried in the

earlier suit is completely analogous, vis-à-vis memo of parties, as

carried in the extant suit. Therefore, a dire necessity became cast

upon the plaintiff to ensure, that they include in the earlier suit, the

factum of demarcations' reports (supra) hence becoming prepared,

.

and to also take to prove the demarcation reports (supra), rather in

the earlier drawn proceedings by them. However, they omitted to do

so, and, besides when also rather against the dismissal of their

earlier suit, in default, they failed to recourse the mandate of Order 9

Rule 9 CPC, for restoring the earlier Civil Suit to its original number.

Therefore, the cumulative effects of the afore omissions, is that the

afore statutory provision(s) rather creating bar of estoppels, against

the plaintiff rather instituting the instant suit, hence visibly becoming

aroused. Moreover, when the salutary purpose behind the afore

statutory provisions, is to ebb the menace of repetitive institutions of

suit, on same and similar causes of action, and, vis-à-vis, similar suit

property, and, when there is completest similarity of litigants in both

the earlier, and, in the subsequent suit, besides with both detailing

similar khasra numbers. Therefore, reiteratedly the estopping

mandates (supra) do completely emerge, and sequels a firm

inference that the instant suit is hit by the afore erupting statutory

estoppels.

9. Be that as it may, the learned counsel for the plaintiff, has

contended with much vigour before this Court, that for settling the lis

inter-se the parties at contest, it became incumbent upon the

.

learned Courts below to yet appoint a Local Commissioner.

However, the afore made submission, could become well founded

only when the instant suit, is not hit by the afore vices. Since the

grant of equitable relief of injunction, and, of possession would be

validly founded only upon apposite therewith displays, being made

in the apposite rather validly drawn demarcation reports concerned.

However, when the afore vices work against the plaintiff,

consequently they carry the ensuing effect, that the indispensable

norm rather governing the grant of equitable relief of injunction, in as

much as equity hence becoming not breached by the plaintiff, rather

visibly becoming completely breached by the plaintiff. Consequently,

the afore statutory omission(s), as, are made to undone through this

Court accepting the contention of the learned counsel for the

plaintiff, and thereupon this Court proceeding to appoint a local

Commissioner, for conducting fresh demarcation(s) of the

contiguous estates of the contesting litigants, would ensure rather,

the ill-sequel of this Court, militating against the afore statutory

estoppels, evidently working against the instant suit, as becomes

reared by the plaintiff. Therefore, this Court refrains from its

breaching the principle of statutory estoppels, as work against the

.

plaintiff's extant suit.

10. Though the learned counsel for the plaintiff, has yet

continued to argue, that the defendants being injuncted from

interfering in the suit land. However, without there being any real

potentiality of threat, to the suit land, and, as would arise from actual

or threatened invasions, on to his property hence being made by the

defendants, and, as would become well succored, only upon, in the

earlier instituted suit hence the plaintiff making valid dependences

upon the demarcation reports (supra), whereas, rather his evident

omission (supra) rendering his nowat reliance(s), upon them, to be

grossly inapt. Therefore, this Court finds that there is only a

surmisal or imaginative threat etched in the mind of the plaintiff, that

there is a potentiality of invasion on to the suit land by the

defendants. The afore imaginative endangerment hence etched in

the mind of the plaintiff, would cause the ill effect of the plaintiff's

prayer for injunction against the defendants, being vindicated, even

when there is no actual or proven threatened invasion upon the suit

land hence by the defendants. Moreover, this Court cannot render

any injunction against the defendants, without the afore parameters

rather regulating its rendition hence being proved. Moreso, the

.

cause of action for its making is averred to spur rather in the year

2006, in quick spontaneity whereof, the earlier suit became

dismissed for default, hence with all consequential legal effect(s)

(supra). On afore anchor this Court also refrains to make the

apposite injunction against the plaintiff, as thereupon the effect

supra of estoppel working against the extant suit would become

impermissibly undone. Only upon proven occurrences of any real

and proven potential endangerments of invasions on the suit land by

the defendants, would make a valid cause of action hence generate

vis-à-vis the plaintiff and not earlier nor any omnibus injunction

rather without the afore norms being proved, can become validly

rendered.

11. In view of the above, the instant Regular Second

Appeal is dismissed, and, the substantial questions of law are

answered accordingly. The impugned judgments are maintained

and affirmed. Records be sent back.

    20th August, 2021                          (Sureshwar Thakur),
       (priti)                                      Judge.