Himachal Pradesh High Court
Labh Singh vs Vivek Kumar And Another on 20 August, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
2024:HHC:7593
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 542 of 2019 a/w RSA
No.550 of 2019, cross objection
No.16 of 2020 and RSA No.241 of
2020
Decided on 20th August, 2024
.
RSA No.542 of 2019
Labh Singh ...Appellant
Versus
Vivek Kumar and another ...Respondents
RSA No.550 of 2019
Labh Singh ...Appellant
Versus
Vivek Kumar ...Respondent
RSA No.241 of 2020
Vivek Kumar ...Appellant
Versus
Labh Singh ...Respondent
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
1
Whether approved for reporting?
For the appellant: Mr. B.S. Chauhan, Senior Advocate,
with Mr. Abhishek Thakur, Advocate,
for the appellant(s), in RSA Nos. 542
and 550 of 2019.
Mr. Bimal Gupta, Senior Advocate,
with Ms. Kusum Chaudhary,
Advocate, for the appellant, in RSA
No.241 of 2020.
For the respondents: Mr. Bimal Gupta, Senior Advocate,
with Ms. Kusum Chaudhary, Advocate, for
the respondents, in RSA No.542 and 550 of
2019.
Mr. B.S. Chauhan, Senior Advocate,
with Mr. Abhishek Thakur, Advocate,
for the respondent, in RSA No. 241 of
2020.
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2
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Ajay Mohan Goel, Judge (Oral)
.
Delink from RSAs No.542 and 550 of 2019.
CMPs No.10391 & 10455 of 2024 & RSA No.542
and 550 of 2019
2. By way of these two applications filed under Order
23 Rule 3(a) of the Code of Civil Procedure, the
applicant/appellant has prayed for liberty to withdraw Civil Suit
No.142 of 2009, instituted by him, which was dismissed by the
learned trial Court and appeal filed against which decree and
judgment was dismissed by the learned 1st Appellate Court,
with liberty to institute a fresh Civil Suit on the same cause, by
pleadings therein that the entrance to the plot of the plaintiff
was through Khasra No.2110 and 2112 and not 2141 and 2140.
3. Learned Senior Counsel appearing for the
applicant/appellant states that inadvertently in the plaint, the
description of the path that was being enjoyed by the plaintiff
for ingress and egress to his property was not mentioned and
this has led to the dismissal of the plaint as well as the appeal.
He further submits that as the same is a formal defect,
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therefore, the applicant be permitted to withdraw this appeal as
well as the Civil Suit that was instituted by him, but with liberty
to file a fresh Civil Suit seeking injunction against the non-
.
applicants quo Khasra No.2110 and 2112.
4. The application is opposed by the non-applicants.
Learned Senior Counsel appearing for the non-applicants
submits that in the garb of the applications, the
applicant/appellant now intends to wriggle out of the judgments
and decrees that have been passed against him by the learned
Courts below. He further submits that as the applicant/plaintiff
failed to prove his case before the learned trial Court and as he
failed to prove that he had any right upon Khasra No.2141 and
2140, therefore, the suit and the appeal were rightly dismissed.
He further apprises the Court that the Counter Claim filed by
the non-applicants was rightly partly allowed by the learned trial
Court, which findings have been confirmed in 1st Appeal also
because, it was the applicant, who was interfering with Khasra
No.2141, without any legal right. He further states that in the
garb of the withdrawal of the suit, the applicant intends to
institute a fresh Khasra number for Khasra Nos. 2110 and
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2112. The applicant intends to get out of the findings returned
by both the learned Courts below, which is further evident from
the fact that there is no dispute as far as Khasra Nos.2110 and
.
2112 are concerned that the same are joint to be used as a
path both by the plaintiff as well as the defendants.
5. I have heard learned Senior Counsel for the parties
and have also carefully gone through the contents of the
applications as well as the reply(s) and the record of the case
which is available with this Court.
6. A perusal of the record demonstrates that the
applicant/plaintiff hereinafter referred to as the plaintiff filed a
suit for permanent prohibitory injunction restraining the
defendants from digging obstructing the passage/gali leading to
the house of the plaintiff, situated in land comprised in Khasra
Nos.2132 to 2138 and 2140 (new) measuring 429.56 Sq.
metres. According to the plaintiff, he was using the gali for his
egress and ingress as shown in site plan in red ink for more
than 20 years, which was the only entrance to the house of the
plaintiff. According to him, defendants No.1 to 4 had no right to
obstruct the said gali, yet, they had started digging and raising
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construction and causing obstruction, as the entire plot of the
defendants comprised in Khasra No.2141 was connected with
main gali leading to Bhatia house, which had led to the causing
.
of construction to the approach/gali.
7. The suit was resisted by the defendants, who took
the stand that the land of the plaintiff comprised in Khasra
No.2140, which was adjoining the land of defendant No.1,
comprised in Khasra No.2141. As per defendants, there was a
path comprised in Khasra Nos.2110 and 2112, which was
adjoining to Khasra Nos. 2141 and 2140. The father of
defendant No.1 was the owner of Khasra No.2141 and
defendant No.1, succeeded to Khasra No.2141, after the death
of his father. He was residing in Punjab. He was informed by
his friends that plaintiff had started raising construction over
Khasra No.2141 and 2112 and when the defendants asked the
plaintiff to stop carrying out such construction, he filed a false
suit by concealing the truth. A counter claim for permanently
restraining the non-counter defendant from digging and raising
any construction in the land comprised in Khasra Nos. 2112
and 2141 situated in Mauza Poanta Sahib, District Sirmour, and
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mandatory injunction to demolish and remove the already
existing construction was filed by the defendant.
8. In terms of the judgment and decree passed by the
.
learned trial Court on 28.04.2015, the suit of the plaintiff was
dismissed, whereas, the counter claim of the defendant was
partly allowed and the non-counter claimant was restrained
from digging and raising construction in land comprised in
Khasra No.2112 and 2141.
9. Incidentally, in Para-15 of the judgment passed by
the learned trial Court, it held that though the evidence on
record did not entitle the plaintiff to seek the relief of permanent
injunction, however, the plaintiff will be within his right to use
path comprised in Khasra Nos. 2110 and 2112 for egress and
ingress to his house. These findings were returned while
deciding issue No.1.
10. In appeal, the dismissal of the suit by the learned
trial Court was upheld by the learned 1st Appellate Court and
the part decree granted in favour of the counter claimant was
also upheld. Feeling aggrieved, the plaintiff has filed these two
Regular Second Appeals, in which, these two applications have
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been filed.
11. After perusing the record and more so the findings
returned by the learned Courts, wherein, the plaintiff has been
.
held entitled to use Khasra Nos.2110 and 2112 for ingress and
egress to his house, this Court is of the considered view that
these two applications, cannot be allowed, as prayed for.
12. When there are observations of the learned trial
Court, which have not been interfered with by the learned 1st
Appellate Court that the plaintiff is entitled to use the path
comprised in Khasra Nos. 2110 and 2112 and when the factum
of the right of the plaintiff to use these Khasra numbers has
also not been disputed by the non-applicants, this Court is of
the considered view that, though, the prayer of the applicant for
withdrawal of the Civil Suit can be allowed, there is no need for
the Court to give any liberty to the plaintiff to institute a fresh
suit on the same cause seeking injunction against the
defendants qua Khasra Nos. 2110 and 2112.
13. The Court is making this observation for the reason
that when the usage of these two Khasra numbers is not in
dispute as of today, liberty cannot be granted by the Court
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under Order 23 of the Code of Civil Procedure on
apprehension/injunction.
14. Accordingly, these two applications are disposed of
.
by permitting the applicant/plaintiff to withdraw the Civil No. 142
of 2009, filed before the Court of learned Civil Judge, (Jr.
Division). Court No.2, Poanta Sahib, District Sirmour, H.P.
However, no liberty stands granted to institute a fresh suit in
terms of the prayer made in the applications.
RSA Nos. 542 & 550 of 2019
15. As Civil Suit, adjudication made wherein has led to
the filing of these two appeals, has been permitted to be
withdrawn, these appeals, as prayed for, are also permitted to
be withdrawn. However, it is clarified that the findings which
were returned by learned Trial Court in the Counter Claim shall
stand.
(Ajay Mohan Goel)
Judge
August 20, 2024
(Vinod)
