Savita Sharma vs Chander Kant & Ors
2023 Latest Caselaw 10601 HP

            IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

                                                  CMPMO No. 70 of 2021




                                                                                  .
                                                  Decided on: 28.07.2023





    Savita Sharma                                                 ...Petitioner
                                                  Versus





    Chander Kant & Ors.                                                     ...Respondents

    Coram:
    Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
    Whether approved for reporting? 1             No




    For the Petitioner :


                                         Mr. Navneet. K. Bhalla, Advocate.

    For the Respondents : Mr. Ramakant Sharma, Ms. Sharmila

                        Patial, Addl. A.Gs. With Ms. Priyanka
                        Chauhan, Dy. A.G. and Mr. Rajat

                        Chauhan,        Law     Officer,   for
                        respondents-State.

    Tarlok Singh Chauhan, Judge (Oral)

Respondent No. 1 has filed a civil suit titled as

'Chander Kant vs. Savita Sharma and others' under Sections 37,

38 and 39 of Specific Relief Act for permanent, prohibitory and

mandatory injunction on the ground that the plaintiff was having

his house existing/constructed over the land comprised in

Khata/Khatauni No. 615/827 Khasra No. 3159/1984/449, 2335

measuring 180 sq. mtrs. Situated in Mohal Saproon, Tehsil and

District Solan, H.P. alongwith other co-owners i.e. mother and

sisters.

2. It is further averred that defendant No. 1 is owner in

possession of land comprised in Khasra No. 450 and

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

1984/494/4/2 situated in Mauza Saproon, Tehsil and District

Solan, H.P. which is adjacent to the house and property of the

.

plaintiff. Defendant No. 1 has purchased the said property/land

from its previous registered owner namely Sh. Ajit Paul Verma

son of Sh. Amolak Ram and Smt. Suneel Verma wife of Sh. Ajit

Paul Verma.

3. It is also averred that earlier Khasra No. 450

belonged to plaintiff and other co-owners. The plaintiff and other

co-owners had executed a deed of exchange dated 03.07.2014

with said Sh. Ajit Paul Verma and Smt. Suneel Verma, which was

duly registered before sub-Registrar, Solan vide registration No.

1359/2014 dated 03.07.2014. It is further averred that through

the said deed of exchange the plaintiff alongwith other co-

owners has transferred a portion of land i.e. comprised in

Khata/Khatauni No. 522 min/767 min. Khasra No. 450 measuring

45 sq. mtrs. in Mauza Saproon, Tehsil and District Solan, H.P. in

favour of said Sh. Ajit Paul Verma and Smt. Suneel Verma

similarly said Sh. Ajit Paul Verma and Smt. Suneel Verma

transferred a portion of land measuring 65 sq. mtrs. out of their

share 178/400 i.e. 178 sq. mtrs. in the land comprised in

Khata/Khatauni No. 521/766, Khasra No. 1984/499 measuring

400 sq. mtrs. Situated in mauza Saproon, Tehsil and District

Solan, H.P.

4. It is further averred that as per the clause 4 of the

exchange deed it is specifically mentioned that the first party i.e.

.

Sh. Ajit Paul Verma and Smt. Suneel Verma will provide one

meter path through the land which comes in their ownership

after exchange i.e. in Khasra No. 450 to the second party i.e.

plaintiff and other co-owners and the said path would remain

common to all the parties for all times to come. Accordingly, said

Sh. Ajit Paul Verma and Smt. Suneel Verma had left one meter

wide path in Khasra No. 450 for ingress and egress of the plaintiff

other co-owners and all the local habitants. Thereafter, the

predecessor in interest of defendant No. 1 and the plaintiff have

mutually constructed a pacca path on the aforesaid land in

Khasra No. 450 as agreed and since then the plaintiff and his

family members are using the said path without any obstruction

and hindrance of anyone. It is pertinent to mention here that the

above exchange had taken place on account of providing the

aforesaid path to the plaintiff as well other inhabitants of the

vicinity. It is also pertinent to mention here that as per the

aforesaid exchange deed the parties shall include their

respective legal heirs, successors, assigns etc. to all the terms

and conditions duly mentioned in the exchange deed which also

bounded upon defendant No. 1.

5. That defendant No. 1 in the year 2018 has purchased

the land property from said Sh. Ajit Paul Verma and Smt. Suneel

.

Verma and defendant No. 1 is well aware about the aforesaid

facts of exchange deed as well as status of path existing over the

said land as the predecessor in interest of the defendant No. 1

had made this fact clear in presence of the plaintiff to the

defendant No. 1 at the time of sale of property and defendant

No. has admitted the said fact.

6. It is further averred that defendant No. 1 was

advancing threats that she would block/obstruct the path by

raising construction thereupon. The plaintiff had even made an

application to the Tehsildar for incorporation of revenue entries

regarding the path and the revenue authorities after visiting the

spot had submitted the report dated 22.04.2019 by mentioning

that there exists path of 20 sq. mtrs. as per Khasra Girdawari in

Khasra No. 450 measuring 45 sq. mtrs. It has been claimed that

on 26.05.2019 the defendant had started digging, cutting work

and blocked the path by throwing debris etc. Hence, the suit for

directing the defendant to restore the original position of path in

question.

7. Alongwith the suit an application under Order 39

Rules 1 and 2 CPC was filed and respondent No. 1 was granted

.

an ex parte ad interim injunction on 27.05.2019 by restraining

the respondent No. 1 from digging, cutting, blocking, obstructing,

changing the nature and raising construction over the said path

in question existing in khasra No. 450 situated in Mohal Saproon,

Tehsil and District Solan, H.P.

8.

After service petitioner filed written statement and

also reply to the application.

9.

The defendant filed written statement by raising

preliminary objections that the suit is not maintainable and that

there exist two alternative paths which lead to the properties of

the present plaintiff. It is further submitted that one of the path

over Khasra No. 402 which is jointly owned by the present

plaintiff and recorded as such in the revenue record. It was also

stated that the plaintiff is enjoying another path which is

available and existing on the spot and runs adjoining to the land

comprised in Khasra No. 1984/449 facing Khasra No. 394, 395

and part of Khasra No. 396 from the corner of Khasra No. 451 to

the other corner of Khasra No. 449/1 and 448. The Khasra No.

448 and Khasra No. 451 are owned by the plaintiff and the

plaintiff himself has sold some of the land in Khasra No. 451 to

one Smt. Mahima and had also granted her right of path through

the registered sale deed. Therefore, the said path over Khasra

No. 451 is available to the plaintiff.

.

10. On merits, it is averred that there exists path over

Khasra No. 402 which is owned by the plaintiff and since no path

exists on the land owned by defendant No. 1, therefore, the

question of blocking the same does not arise.

11. When the case came up for consideration before the

passed:-

r to learned Trial Court on 04.01.2021, the following order came to be

"Because of the onset of pandemic COVIC-19, the

Court functioning has been suspended. Be put up for

further order on 15.03.2021."

12. It is not in dispute that thereafter civil courts were

closed due to winter vacation from 18.01.2021. The defendant

No. 1, who was a police officer is stated to have been working as

Naib Court in the office of District Attorney, Solan and is alleged

to have manipulated the facts by presenting one application

under Section 151 CPC for early hearing on 28.01.2021 i.e.

during the winter vacation.

13. The application was taken up and was allowed by

passing the following order:-

"Matter has been taken up today on an application for early hearing and preponement of the case.

Vide separate order application under Section 151 CPC for early hearing has been allowed. Let notices be issued to

.

respondent through counsel for 29.01.2021. Dasti be

issued.

14. It would be noticed that no notice of the application

was ordered to be served on the litigant i.e. the respondent even

when the Court was closed on account of vacation. Even notice

could not be served upon the counsel Shri Navneet. K. Bhalla as

is evident from the report of the process server wherein it has

been stated that he had enquired from the office of Shri N.K.

Bhalla that he is not available and the office was in fact found to

be closed. The process server further reported that he took the

phone number of Shri N. K. Bhalla, Advocate, and on being

contacted he was told that he was sick and out of station,

meaning thereby, that the summons in fact were not served.

However, the learned Trial Court without caring or even

bothering to see whether there was a valid service or not

proceeded to allow the application in the following terms:-

"In the light of the averments made by the applicant as well as by the respondent, this Court is of the view that if any police assistance is granted to the applicant, no prejudice will be done to any of the party as it would meet the ends of justice. Hence, the present application deserves to be allowed. The concerned SHO is hereby directed to visit the spot to know about the facts and to take appropriate steps in accordance with law for implementing the order dated 27.05.2019 passed by this

Court. Necessary reference order be made to SHO accordingly. Civil Ahlmad is directed to do the needful.

.

Application stands disposed of. Be tagged with the main

case file.

15. The narration of the aforesaid facts clearly disclose

the sorry and deplorable state of affairs where the Court has

simply bulldozed its way by issuing order of police assistance,

without even caring to see whether the party has been served or

not. The manner in which the Court below has proceeded leaves

much to desire.

16. The object of service of summons in whatever way, it

may be effected is that the party may be informed of the

institution of the application in due time before the date fixed for

its hearing and where a party is not served with summons then

even the mere fact that the party has knowledge of the

proceeding is totally immaterial (Bengal Chand Co. vs. Gouri

Shankar (1995) 1 Cal 119).

17. Apart from the above, I am at a complete loss to

understand as to what was the pressing necessity or for that

matter even the justification for preponing the proceedings that

too when the Courts were closed on account of winter vacations.

If at all the Court felt that the case was of an urgent nature, then

it ought to have issued dasti notice for the service of the

respondent, who appears to be residing in the vicinity of Solan

town itself as is evident from the address appearing in the memo

of parties where she is shown to be resident of Village and Post

.

Office Saproon, Tehsil and District Solan, H.P., rather than trying

to serve the notice upon the counsel knowing fully well that

there were vacations in the Court.

18. Another glaring fact which emanate from the record

is that the application filed for police assistance was based upon

two DD entries dated 27.1.2021 and 28.01.2021, respectively,

and going by the record and the fact that the respondent was in

the Police Department and currently posted as Naib Court, these

entries could not have been taken at their face value and were

required to be taken with a pinch of salt. Why I observe so is

because the respondent despite having been duly served has

not appeared before this Court to contest this petition.

19. Be that as it may, this Court is not in a position to

appreciate the mode and manner in which the learned Judge has

conducted herself in firstly entertaining the application during

vacations and thereafter having directed the service of notice

only upon the Advocate and not the petitioner herein and even

after the receipt of the report that the Advocate had not been

served, proceeded to pass an order, that too, grant of police

assistance.

20. The learned Trial Court has completely failed to take

into consideration the fact that the order of police assistance has

.

got serious consequences impinging upon the rights of the party

and normally, therefore, Courts are required to be slow on

passing such order. In any case, such kind of order can be passed

only after hearing both the sides.

21. In view of the aforesaid discussion and for the

reasons stated above, I find merit in this petition and the same is

accordingly allowed and the Impugned order dated 29.01.2021 is

set aside with a direction to the Court to decide both the

applications i.e. under Order 39 Rules 1 and 2 and the one for

police assistance, as expeditiously as possible, and in no event

later than 31.08.2023.

22. Pending miscellaneous application(s), if any, also

stands disposed of.

(Tarlok Singh Chauhan) Judge

28th July, 2023 (sanjeev)