The Idol Of Sh. Ravidas Mandir & ... vs Naresh Kumar Chabba And Others
2021 Latest Caselaw 1501 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                 C.R. No.: 117 of 2019




                                                                     .
                                                 Decided on:         02.03.2021





     The Idol of Sh. Ravidas Mandir & others                     ...Petitioners.

                                 Versus





     Naresh Kumar Chabba and others                              ...Respondents.
     Coram
     The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.





     Whether approved for reporting?1 Yes

     For the petitioners               :   Mr. Jagjeet S. Bagga, Advocate.

     For the respondents           :       Mr.N.K. Thakur, Senior Advocate,
                  r                        with Mr. Divya Raj Singh,

                                           Advocate.

     Ajay Mohan Goel, Judge (Oral)

By way of this petition filed under Section 115 of

the Code of Civil Procedure, the petitioners/plaintiffs have

assailed the order passed by the Court of learned Senior Civil

Judge, Una, District Una, H.P. in Civil Miscellaneous

Application RBT No. 280-14-2010, titled as The Idol of Sh.

Ravidass Mandir, Santokhgarh Vs. Sh. Naresh Kumar and

others, dated 13.06.2018, vide which application filed under

Order 39, Rules 1 and 2 of the Code of Civil Procedure by the

petitioners/plaintiffs was dismissed by the learned Court

1 Whether reporters of the local papers may be allowed to see the judgment?

below, as well as against the judgment passed by the Court of

learned Additional District Judge-II, Una, H.P. in Civil

.

Miscellaneous Appeal No. 28/2018, titled as The Idol of Shri

Ravidas Mandir Santokhgarh and others Vs. Naresh Kumar

and others, dated 29.03.2018, vide which, an appeal

preferred by the petitioners against the order passed by the

Court of learned Senior Civil Judge, Una, District Una, H.P.

stood dismissed by the learned Appellate Court.

2. r Brief facts necessary for the adjudication of the

present petition are that petitioners/ plaintiffs have filed a

suit i.e. Civil Suit No. 367/14/10 for possession by way of

demolition of structure as per site plan qua the suit land

situated in village Santokhgarh, Tehsil and District Una, H.P.

as well as for permanent injunction as a consequential relief,

restraining the defendants to raise any further structure

upon the suit land or, alienate the suit land. An alternative

prayer is also made in the suit for setting aside the

alienation, if any, done by the defendants. Alongwith the suit,

an application stood filed by the petitioners/plaintiffs under

Order 39, Rules 1 and 2 of the Code of Civil Procedure

praying for temporary injunction against defendants during

the pendency of the suit.

3. The application stood dismissed by the learned

Trial Court vide order dated 13.06.2018 by interalia holding

.

that the applicants/plaintiffs had failed to make out a prima

facie case alongwith balance of convenience and irreparable

loss and injury caused was also not proved by the applicants.

4. An appeal preferred by the applicants/present

petitioners against the order passed by the learned Senior

Civil Judge, Una, District Una, H.P. was dismissed by the

learned Appellate Court by holding that the learned trial court

had rightly appreciated the pleadings and record and no fault

could be attributed to the findings returned by the learned

Trial Court, which called for no interference.

5. Feeling aggrieved the petitioners have filed the

present petition.

6. A perusal of the order and judgment passed by the

learned Courts below demonstrates that there was an earlier

litigation between the parties with regard to the suit land and

judgment and decree in favour of the present respondents

now stands assailed by the petitioners in the civil suit inter

alia on the ground that the said judgment and decree are

void ab initio as the plaintiff is a minor. Record further

demonstrates, as has been taken note of by the learned

Appellate Court also, that there has been an adjudication

between the same parties/their predecessor-in-interest, on

.

the same subject matter vide judgment and decree dated

24.08.1953. The predecessor-in-interest of the petitioners had

preferred an appeal against the judgment and decree dated

24.08.1953 before the Appellate Court and the appeal was

dismissed vide judgment and decree dated 28.04.1954 and a

regular second appeal was also dismissed by the High Court

of Judicature r for the State of Punjab at Chandigarh, vide

judgment dated 26.09.1958. Besides other things, this factor

weighed with both the learned Courts below while

dismissing the application filed by the present petitioners

under Order 39, Rules 1 and 2 of the Code of Civil Procedure

for grant of temporary injunction and the appeal.

7. Learned Senior Counsel appearing for the

respondents apprised the Court that an execution petition

was filed for the execution of the judgment and decree earlier

passed by the Court. Objections were filed against the

execution petition, which stood dismissed on 16.02.1999

and order of dismissal of the objections against the execution

petition was assailed and maintained up to the Hon'ble

Supreme Court of India. This fact could not be disputed by

the learned counsel for the petitioners during the course of

arguments.

.

8. I have heard learned Counsel for the parties and

also perused the order and judgment passed by the learned

Courts below, respectively.

9. In exercise of its jurisdiction under Section 115 of

Code of Civil Procedure, the scope of interference of this Court

is limited under circumstances where a Court either does not

exercises jurisdiction vested in it or exercises jurisdiction

vested in it with material irregularity or exercises jurisdiction

not vested in it. Here it is not a case where the learned Courts

below either exercised jurisdiction not vested in them or not

exercised jurisdiction vested in them. A perusal of the

orders passed by the learned Courts below demonstrate that

they are reasoned orders and findings stands returned by

both the learned Courts below after taking into consideration

the respective contentions of both the parties. It is not in

dispute that with regard to the suit property, there was an

earlier litigation between the parties which has been decided

in favour of the present respondents. It is also not in dispute

that the objections filed against the execution petition also

were dismissed by the learned Executing Court and the order

of dismissal was upheld up to the Hon'ble Supreme Court of

India. That being the case, now fresh suit which has been

.

filed by the present petitioners for declaration that the earlier

judgment and decree are bad in law, prima facie does not

confers upon them a right to be granted interim relief as

prayed for. As earlier suit stands decided against the present

petitioners, therefore, prima facie case does not exists in their

favour nor balance of convenience can be said to be in their

favour. On the other hand, in case, interim, as prayed for, is

granted, then in the considered view of this Court, it is the

respondents who will suffer from irreparable loss. This is

exactly what has been held by both the learned Courts below

in the orders which stand assailed by way of this petition. In

these circumstances, as this Court does not finds any merit

in the present petition, the order and judgment passed by

both the learned Courts below call for no interference and

accordingly, the present petition is accordingly dismissed.

Interim order, if any, stands vacated.

Pending miscellaneous application(s), if any, also

stand disposed of.

(Ajay Mohan Goel) Judge March 2, 2021 (narender)