IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 141 of 2022 Date of Decision: 21.07.2026 ____________________________________________________ Umang Aggarwal ...Petitioner. Versus M/s Shyam Sunder Kishan Chand & another ...Respondents. Coram Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the petitioner: Mr. Karan Singh Kanwar, Senior Advocate with Ms. Upasana, Advocate. For the respondents: Mr. Sarthak Mehta, Advocate, for respondent No.1. Mr. Desh Raj Thakur, Senior Advocate with Mr. Anmol Sharma, Advocate, for respondent No.2. __________________________________________________ Romesh Verma , Judge(oral) The instant petition arises out of the judgment dated 27.04.2022, passed by the learned Additional District Judge, Sirmaur, District at Nahan, H.P., whereby the appeal filed by the present petitioner was ordered to be dismissed and the order passed by Civil Judge, Nahan, District Sirmaur, H.P, dated 20th December 2021 came to be affirmed, whereby the application filed by the plaintiff/respondent No. 1 was allowed, and restraint order was passed against the present petitioner by restraining the defendants 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 from forcibly evicting the applicant/plaintiff from the tenanted premises of the shop situated at Khata Khatauni No. 471/694 kite 58 measuring 1825.20 Sq. Mtrs. situated at Mohal Nahan, Bara Chowk Nahan, District Sirmaur, H.P. and as shown as ABCD having two portions ABGF and GFCD in the photograph, and further, the defendant No. 1 was restrained to induct any person other than the plaintiff in the portion of the shop ABCD shown as ABGF in the photograph, except by due process of law. 2. The facts as emerge in the present case are that the respondent No. 1, M/s Shyam Sunder Kishan Chand, filed a suit for permanent prohibitory injunction restraining the defendant from forcibly evicting the plaintiff from the tenanted premises of the shop having two portions ABGF and GFCD as shown in the photograph, and also restraining the defendant No. 1 to induct the defendant No. 2 in the portion of shop ABCD shown as ABGF in the photograph. 3. The said suit was resisted by the defendants by filing separate written statements. Both the defendants refuted all the averments as made in the plaint and prayed for the dismissal of the suit. 4. As fairly admitted by the learned counsel for the parties, the plaintiff, along with his suit, filed an application under Order 39 Rules 1 & 2 CPC, as well as defendant No. 2/counter claimant also filed an application under Order 39 Rules 1 & 2 CPC. 3 5. The learned trial Court allowed the application as filed by the respondent No. 1/plaintiff by passing the restraint order against the non-applicants/defendants. 6. Against the said order as passed by the learned Civil Judge, the defendant No. 2/petitioner preferred an appeal in the Court of learned Additional District Judge, Sirmaur, which came to be dismissed by the said Court. 7. Feeling dissatisfied, defendant No. 2/petitioner has approached this Court by invoking the provision of Article 227 of the Constitution of India. 8. It is contended by Mr. Karan Singh Kanwar, Senior Advocate assisted by Ms. Upasana, Advocate, for petitioner/ defendant No. 2 that before addressing the arguments on the merits of the case, he intends to take this Court to the illegality as committed by the learned Courts below, as the application which was filed by defendant No. 2 in her counter claim under the provisions of Order 39 Rules 1 & 2 CPC has not been adjudicated by the learned trial Court. 9. He further submits that a specific plea was taken in this regard before the learned First Appellate Court, but even the learned First Appellate Court has not taken into consideration the said aspect, 4 as a result of which the impugned judgment/order as passed by the learned Courts below are perverse on the face of it. 10. On the other hand, Mr. Desh Raj Thakur, Senior Advocate assisted by Mr. Anmol Sharma, Advocate, for respondent No. 2 and Mr. Sarthak Mehta, Advocate, for respondent No.1 have defended the impugned judgment and order. Learned Senior Counsel, submits that the impugned judgment and order do not suffer from any infirmity and this Court will not interfere with the well reasoned order/judgment as passed by the learned Courts below. 11. I have heard the learned counsel for the parties and gone through the case file. 12. Without entering into the merits of the case, this Court will discuss the argument as raised by the learned Senior Counsel for the petitioner, whereby the application filed by the counter claimant/ defendant No. 2 under the provisions of Order 39 Rules 1 & 2 CPC has not been decided/adjudicated by the learned trial Court. 13. From the perusal of the order which has been passed by the learned Civil Judge, Nahan, District Sirmaur, H.P. dated 20th December 2021, there is no iota of discussion at all which may demonstrate or show that the application filed by the counter claimant has been taken into consideration by the learned Civil Judge. 5 14. This Court is in agreement with the contention as raised by the learned Senior Counsel that once both the parties, i.e., plaintiff and defendant No. 2 had filed the applications under Order 39 Rules 1 & 2 CPC, then both the applications ought to have been decided either way by the learned trial Court by passing a reasoned order. 15. The perusal of the entire order shows that the learned trial Court has not taken pains to decide the application for injunction filed by defendant No. 2. 16. The same error was committed by the learned First Appellate Court. In Para 14 of the impugned judgment, the learned First Appellate Court has observed as follows: “14. In this case, the learned counsel for the appellant has argued on several points and one of points is that the learned Trial Court has decided an application under Order 39 Rules 1 & 2 CPC filed by the applicants/plaintiffs and left the other application filed by the appellant along with counter claim, which has caused great prejudice to the appellant. The fact is that the other application seems to have not not been decided inadvertently. Moreover, the appellant should have pressed this point before the learned Trial Court. So this point is put to rest as that application is not before this Court.” 17. Though the learned First Appellate Court has agreed that the application filed by the counter claimant has not been decided inadvertently, however, no findings have been passed by the learned First Appellate Court on that aspect. 18. Faced with this situation, the learned counsel for the respondents have conceded that the record shows that the 6 application filed by the counter claimant has not been decided as per law. 19. As agreed by the learned counsel for the parties, the impugned judgment as passed by the learned Additional District Judge, Sirmaur District at Nahan, dated 27th April 2022, and the order as passed by the learned Civil Judge, Nahan, are ordered to be quashed and set aside by relegating the parties to the Court of learned Civil Judge, Nahan, District Sirmaur, H.P., with a direction to decide both the applications filed by the plaintiff and the counter claimant/defendant No. 2 afresh, strictly in accordance with the law, after affording an opportunity to both the parties. 20. It is ordered that the plaintiff and the defendants shall appear before the learned trial Court on 12th August 2026 so that case can proceed further in accordance with law. 21. Needless to say, the learned Civil Judge shall not issue fresh notices to the respondents, and the learned counsel for the parties before this Court undertakes that the parties shall remain present either themselves or through their authorized representatives on the said date. 22. In view of the aforesaid observations, after setting aside the judgment and order as passed by the Courts below, the parties are relegated to the Court of learned trial Court to decide the applications 7 filed by plaintiff and defendant No. 2 under the provisions of Order 39 Rules 1 & 2 CPC afresh. 23. However, it is made clear that observations as made in the present case will not have any bearing on the merits of the main case. 24. The present petition stands disposed of, in the aforesaid terms. All the pending miscellaneous application(s) if any, shall also stand disposed off. Records, if any, be sent back forthwith. (Romesh Verma) Judge July 21, 2026 (Nisha)