Wife Of Sh. Bhagat Ram vs Smt. Pawna Devi
2022 Latest Caselaw 3387 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                  ON THE 13th DAY OF MAY, 2022




                                                        .

                              BEFORE

           HON'BLE MS. JUSTICE JYOTSNA REWAL DUA





        CIVIL MISC. PETITION MAIN (ORIGINAL) No. 697 of 2019

    BETWEEN:-
      SMT. SATYA DEVI





      WIFE OF SH. BHAGAT RAM
      SON OF MOOL RAJ,
      R/O WARD NO. 2, NAGROTA BHAGWAN,
      TEHSIL NAGROTA BHAGWAN,

      DISTRICT KANGRA, HP.                         ....PETITIONER

     (BY SH. HARISH KUMAR VERMA, ADVOCATE)

     AND
    1. SMT. PAWNA DEVI


        WIFE OF SH. VIRENDER KUMAR
        SON OF SH. THAKUR DASS
       SON OF DULO RAM;




    2. VIKASH
       SON OF SH. VIRENDER KUMAR;





    3. VIVEK
       SON OF SH. VIRENDER KUMAR;





    4. (i) SMT. ANURADHA WD/O ANIL CHUHA;
       (ii) SH. ROHIT S/O ANIL CHUHA;
       (iii) MISS POOJA D/O ANIL CHUHA;

    5. SH. SUDHIR KUMAR
       SON OF SH. AMAR NATH
       SON OF SH. DULO RAM;

    6 VINOD KUMAR
      SON OF SHRI AMAR NATH
      SON OF SH. DULO RAM;




                                       ::: Downloaded on - 13/05/2022 20:07:08 :::CIS
                                      2




    7. SUNIL KUMAR
       SON OF SHRI AMAR NATH
       SON OF SH. DULO RAM;




                                                              .
    8. BASANT RAJ





       SON OF SHRI AMAR NATH;

    9. DESH RAJ





       SON OF SHRI AMAR NATH

         ALL RESIDENTS OF MOHAL AND MOUZA
         NAGROTA BHAGWAN, TEHSIL NAGROTA
         BHAGWAN, DISTRICT KANGRA, H.P.                ....RESPONDENTS





         (BY MR. K.D. SOOD, SENIOR ADVOCATE WITH
         MR. RAHUL GATHANIA, ADVOCATE, FOR
         R-1 TO 3, 4(i) TO 4(iii), 5, 6, 7 & 9)


               This petition coming on for      admission this day, the

    Court passed the following:


                                ORDER

The challenge in this petition filed under Article 227 of

the Constitution of India is to an interlocutory order dated

20.6.2019 (Annexure P-6) passed by learned District Judge,

Kangra at Dharamshala, whereby an application filed by the

plaintiffs under Order 41 Rule 27 read with Section 151 of the

Code of Civil Procedure was allowed.

2. During hearing of the case, it was brought to the notice

by the learned Senior Counsel for the respondents that

subsequent to the passing of the impugned order dated

20.6.2019, learned First Appellate Court had decided the main

appeal pending before it vide judgment dated 17.9.2019,

remanding the matter back to the learned Trial Court. It was

.

also pointed out that the present petitioner/defendant has

already laid challenge to the remand order dated 17.9.2019 by

preferring FAO No. 459 of 2019 before this Court.

3. Since the present petitioner has already laid challenge

to the remand order dated 17.9.2019, which finally decided the

first appeal, there arises no question of entertaining the present

petition for laying challenge to the earlier interlocutory order

passed in the first appeal on 20.6.2019. In fact, as informed by

the learned counsel for the petitioner/defendant, the

interlocutory order dated 20.6.2019 and the final remand order

dated 17.9.2019, were assailed by the petitioner/defendant

before this Court simultaneously on one date i.e. 15.10.2019.

4. Section 105 of the Code of Civil Procedure, 1908 states

that save as otherwise expressly provided, no appeal shall lie

from any order made by a Court in the exercise of its original or

appellate jurisdiction; but where a decree is appealed from, any

error, defect or irregularity in any order, affecting the decision of

the case, may be set forth as a ground of objection in the

memorandum of appeal.

5. Learned counsel for the petitioner/defendant has made

available copy of FAO No. 459 of 2019 filed before this Court,

wherein grounds have been taken for challenging the

interlocutory order dated 20.6.2019, allowing application under

.

Order 41 Rule 27 CPC.

In the above background, petitioner/defendant cannot

be allowed to pursue two parallel petitions/appeals against same

cause of action, that too, when interlocutory order being

agitated in the instant appeal has merged with the final order

against which petitioner/defendant has already taken recourse

to, in accordance with law.

Therefore, the instant petition is not maintainable and

is accordingly dismissed. Pending application(s), if any, shall

also stand disposed of.

It goes without saying that above observations are

confined to the adjudication of present petition only.

(Jyotsna Rewal Dua), Judge.

May 13 , 2022 (PK)