IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 100 of 2019 Date of Decision: 18.03.2026 Kapil Kumar and another ...Petitioners. Versus Mohinder Paul and others ...Respondents. Coram Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the petitioners: Mr. Ajay Sharma, Senior Advocate with Mr. Tarun Brakta, Advocate. For the respondents: Mr. R.K.Gautam, Senior Advocate with Mr. Jai Ram Sharma, Advocate. __________________________________________________ Romesh Verma , Judge (oral) The present petition arises out of the impugned order dated 19.11.2018, passed by learned Additional District Judge-I, Kangra at Dharamshala Circuit Court at Indora, District Kangra, H.P. in CMA No. 1-1/XIV/18, whereby order dated 04.04.2016 passed by learned Civil Judge (Jr. Division), Indora, District Kangra, H.P. in CMA No. 37 of 2016 in Civil Suit No. 28 of 2016, whereby the application filed by the petitioners/ plaintiffs under Order 39 Rule 1 & 2 CPC was dismissed, has been affirmed. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2. The brief facts of the case are that the present petitioners, who are the plaintiffs before learned trial Court filed a suit for permanent injunction against the defendants/ respondents. It has been averred in the plaint that there is main road of PWD i.e Mohtali-Indora Road and also having shops adjoining to the main road and there is a link Gali shown as “E, F, G, H” existing in Abadi Deh to ingress and egress of the residential houses of the defendants and other inhabitants of village, who are having residential houses on the same. Defendants have got no right, title or concern to create forcibly path in the Courtyard of the plaintiffs as shown A,B,C,D in the site plan since the defendants have their separate path i.e link Gali as shown in E, F, G, H in the site plan. It has further been averred that defendants and earlier their predecessor have been using the same since the construction of their residential houses over the land owned by them. Therefore, the petitioners/ plaintiffs preferred suit for permanent prohibitory injunction restraining the respondents/defendants through their agents, servants, neighbors, permanently from forcibly creating new Path in the courtyard of the plaintiffs as shown A,B,C,D in the site 3 plan in the land comprised in Khata No. 222 Min, Khatauni No. 550 Min, Khasra No. 919 land measuring 00-74-50 HM (Abadi Deh) situated in Mohal and Mauza Mohtali, Tehsil Indora, District Kangra, H.P. Alongwith the plaint, an application under Order 39 Rules 1 & 2 CPC was also preferred for the grant of injunction against the defendants/ respondents. 3. The suit, as preferred by the plaintiffs/petitioners was contested by defendants/respondents by filing written statement and the same was contested on the point of maintainability, cause of action etc. and on merits it was averred that the replying defendants are also co-sharers in the suit land and path as mark A, B,C,D is also existing over the suit land, which leads to the house of the defendants. The said path was constructed by the Gram Pachayat and the same is being used by the defendants for their ingress and egress. Further, it has been averred in the written statement that the said path was constructed with the CC flooring by the Gram Panchayat and in the garb of the present suit, the plaintiffs are trying to merge the path in 4 their own courtyard in order to prejudice the rights of the defendants/ respondents. 4. The defendants also contested the application filed by the plaintiffs for the grant of injunction and all the allegations as made in the application were refuted. 5. The learned Civil Judge (Jr. Div.), Indora, District Kangra, H.P. vide its order dated 4.4.2016 dismissed the application filed by the plaintiffs/petitioners. 6. Feeling dissatisfied, the petitioners/plaintiffs preferred an appeal before the Court of learned Additional District Judge-I, Kangra at Dharamshala, on 23.4.2016. The learned First Appellate Court vide its order dated 19.11.2018 also dismissed the appeal and affirmed the findings of the learned trial Court. 7. Still feeling aggrieved, the petitioners/plaintiffs has approached this Court by filing the instant petition under Article 227 of the constitution of India. 8. I have heard Sh. Ajay Sharma, Senior Counsel, duly assisted by Sh. Tarun Brakta, Advocate, for the petitioners and Mr. R.K.Gautam, learned Senior Advocate, duly assisted by Mr. Jai Ram Sharma, Advocate, for the 5 respondents and have also gone through the material available in case file. 9. It is contended by learned Senior Counsel for the petitioners that the orders as passed by Courts below are perverse and dehor the pleadings of the parties, therefore, the same are not sustainable in the eyes of law and after accepting the present petition, the application filed by the petitioners/ plaintiffs under Order 39 Rule 1 & 2 CPC deserves to be allowed. 10. On the other hand, learned Senior counsel for the respondent has submitted the learned Courts below have rightly appreciated the controversy in question and after perusing the record has rightly dismissed the application for injunction and the order, as passed by the learned Trial Court, has been affirmed rightly by the learned First Appellate Court. 11. The precise case of the petitioners/plaintiffs before this Court is that the respondents/ defendants are trying to create a new path from points A,B,C,D in the site plan, as has been appended by the plaintiffs with the plaint, 6 which is the front potion of the courtyard of the petitioners/ plaintiffs. 12. The learned trial Court in order to determine the controversy in question has appointed Sh. Pankaj Sharma, Advocate, Civil Courts, Indora, as Local Commissioner and vide order dated 16.03.2016. The copy of the report has been appended as Annexure P-6. The learned trial Court passed the order on 16.3.2016 directing the said Local Commissioner to determine and file a report qua the suit land comprised in Khata No. 222 Min, Khatauni No. 550 Min, Khasra No. 919 land measuring 00-74-50 HM (Abadi Deh) situated in Mohal and Mauza Mohtali, Tehsil Indora, District Kangra, H.P. The perusal of the report clearly shows that the said inspection was conducted in the presence of the respective parties namely Sh. Kapil Kumar and Sh. Mohinder Paul. The suit land was also identified by the parties and the points A,B,C,D portion of the suit land in the site plan were also identified by the respective parties. The Local Commissioner took the photographs of the site and the same are part of the record. The report (Annexure P-6) clearly states in the observation of the Local Commissioner 7 a concrete portion in the shape of street exists in the ABCD portion of the site plan and the same is connected with the main street (Galli) towards CD portion. The findings/ observations of the local commissioner clinch the entire controversy. 13. The Courts below have rightly held that the plaintiffs have not approached the court with clean hands and have suppressed the material facts from the Court. The plaintiffs have tried to make out a different case by asserting that there is no passage from portion A, B, C, D of the site plan. However, the report of the Local Commissioner is totally contrary to the version of the petitioners/plaintiffs and it demolishes the case of the present petitioners for grant of interim injunction. 14. The Hon’ble Apex Court in M/S GARMENT CRAFT Vs. PRAKASH CHAND GOEL, (2022) 4 SCC 181, decided on 11.01.2024, has held that High Court while exercising Supervisory Jurisdiction will not act as a Court of First Appeal to reappreciate, reweigh the evidence on facts upon which the determination under challenge is based. The Hon’ble Supreme Court has held as follows:- 8 15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse,1Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed:- “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the 9 High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” 15. The Courts below have rightly passed the orders after taking into consideration the documentary record in conjunction with the report of the Local Commissioner. Therefore, this Court does not find any illegality or infirmity in the impugned orders, as passed by learned Courts below. 16. Consequently, the present petition being devoid of any merit deserves to be dismissed and is accordingly dismissed. All pending miscellaneous application(s), if any, shall also stand disposed off, accordingly. (Romesh Verma) Judge March 18, 2026 (Nisha)