Date Of Decision : 01 .4.2025 vs Munshi Ram
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Himachal Pradesh High Court

Date Of Decision : 01 .4.2025 vs Munshi Ram on 1 April, 2025

                                    2025:HHC:8631




     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                           CMPMO No. 335 of 2016
                           Date of decision :       01 .4.2025.
Tara Chand & others                                   ...Petitioners.

                           Versus
Munshi Ram                                            ...Respondent.

Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1
For the petitioners :            Mr. Neeraj Gupta, Sr. Advocate
                                 with Mr. Ajit Jaswal, Advocate.

For the respondent :             Mr. Ajay Kumar, Sr. Advocate with
                                 Mr. Rohit, Advocate.

Satyen Vaidya, Judge (oral):

Heard.

2. By way of this petition, petitioners have invoked

the jurisdiction of this Court under Article 227 of the

Constitution of India, by seeking the prayer in following

terms:-

"It is therefore, prayed that the petition may be allowed and the observations/findings recorded by learned first Appellate Court in judgment dated 31.3.2015 reframing Issue No.1 and such other findings considering the proposed amendment plaint

Whether reporters of Local Papers may be allowed to see the judgment?

of the plaintiff-respondent may be set aside by directing the learned trial Court to proceed with the trial of the suit land dispose of in accordance with law".

3. Brief facts necessary for adjudication of the

petition are that the respondent/plaintiff Sh. Munshi Ram

filed a suit for permanent prohibitory and mandatory

injunction against the petitioners/defendants being Civil

Suit No. 130 of 2007 on the files of learned Civil Judge

(Senior Division), Kangra. The suit was dismissed by the

learned trial Court vide judgment and decree dated

29.12.2012.

4. The respondent/plaintiff assailed the judgment

and decree passed by the learned trial Court in first appeal

under Section 96 of the Code of Civil Procedure. The

appeal of the respondent/plaintiff was heard by the

learned Additional District Judge-III, Kangra at

Dharmshala and was decided vide judgment and decree

dated 31.3.2015. The suit was ordered to be remanded to

learned trial Court for decision afresh, as the learned

Appellate Court had reframed Issue No.1 as under:-

"i) Whether the plaintiff is continuously using the mainds/edges of the land of the defendants to

and 761 for agriculture purposes as per custom prevailing in the area as alleged? OPP."

5. The grievance of the petitioners/defendants is

that the learned Appellate Court had reframed Issue No.1,

without there being pleadings to that effect in the plaint. It

is submitted that though the respondent/plaintiff had

sought leave of the Court to amend the plaint by seeking to

incorporate that the plaintiff had right of passage through

the suit land by way of easement of custom. The

amendment, as sought by the plaintiff was denied by

dismissing the application moved by the plaintiff in that

behalf vide order dated 2.3.2012. It is also pointed out

that the learned Appellate Court had made a reference in

the judgment dated 31.3.2015 to existence of pleadings as

to easement of custom in the plaint, but such observation

by the said Court is stated to have been made on the basis

of proposed amendment in the plaint, which was never

allowed to be taken on record.

6. Admittedly, the petitioners/defendants had not

assailed the judgment and decree passed by the learned

Appellate Court and had rather chosen to join the

proceedings before the learned trial Court in terms of the

directions issued by the learned Appellate Court. The

instant petition came to be filed after an order dated

3.8.2016 was passed by the learned trial Court, making

observations in following terms:-

"It is further rightly submitted that despite this due to over-sight and inadvertent omission, additional issue appears to have been framed on the basis of proposed amendment plaint, particularly on the basis of para NO.4 of the same. Since proposed plaint was never taken on record, it is evident that this error took place due to omission on the part of Civil Ahelmad in placing proposed amendment plaint despite its rejection in part A, rather than tagging it with dismissed CMA.

Nevertheless, for all intent and urposes, the plea raised by learned counsel for defendant cannot be overlooked, as it will amount to perpetuate the inadvertent error, which was never intended by learned ADL-3, Kangra at Dharmshala.

Under these peculiar circumstances, present application under Order 6 Rule 17 CPC cannot be entertained as it will be against the judicial decorum

and may amount to defiance of order passed by superior Court.

However, it is equally well settled law that error on the part of the Court cannot prejudice the party, if so, this Court, before passing any order under Order 6 Rule 17 CPC hereby request the parties, particularly the defendant, to exhaust appropriate remedy to rectify the clerical act or omission as cited above on or before next date, which is now fixed for 22.8.2016."

7. It also cannot be disputed that the petitioners

/defendants had a right to file an appeal against the

judgment and decree dated 31.3.2015, passed by the

learned Appellate Court. Having not done so, in my

considered opinion, they cannot invoke the jurisdiction of

this Court under Article 227 of the Constitution of India. It

is more than settled that this Court will not exercise the

aforesaid jurisdiction in cases where the party has failed to

avail the remedy otherwise available to it, in accordance

with law, against the order, direction or conduct of the

Courts. That being so, I find no merit in the instant

petition.

8. Since the petitioners/defendants have raised a

question of propriety of the judgment and decree passed by

the learned Appellate Court on the basis of pleadings,

which were not on record, the said question can be decided

by the same Court i.e. the Court of Additional District

Judge-III, Kangra at Dharmshala in review, if filed before

such Court.

9. Accordingly, this petition is dismissed with the

observations as made hereinabove. Nonetheless, in case

petitioners/defendants chose to file a review petition before

the learned Additional District Judge-III, Kangra at

Dharmshala within a period of six weeks from today, the

said Court shall duly consider the factum of pendency of

this petition for the purpose of limitation in accordance

with law.

10. Keeping in view the long pendency of litigation, it

is directed that in case the review petition is filed, as

observed above, the same shall be decided by the

Additional District Judge-III, Kangra at Dharmshala within

eight weeks of the filing of the review petition and subject

to observance of above directions till the decision of the

review petition, further proceedings before the learned trial

Court shall remain stayed. Pending applications, if any,

also stand disposed of. Records be sent back forthwith.

(Satyen Vaidya) Judge 1st April, 2025 (kck)