IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.371 of 2025 Date of decision: 01.04.2026 Jhabe Ram ...Petitioner. Versus Mamta ...Respondent. Coram: The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the petitioner : Mr. Tek Chand, Advocate. For the respondent : Mr. Paras Dhaulta, Advocate, vice Mr.Raman Jamalta, Advocate. Romesh Verma, Judge (Oral): The present petition arises out of order, as passed by learned District Judge, Kullu, District Kullu, H.P. dated 02.05.2025, whereby the application filed by the present respondent under Section 5 of the Limitation Act for condonation of delay in filing the appeal has been allowed. 2. Brief facts of the case are that the petitioner/plaintiff has filed a suit for permanent prohibitory injunction against the defendant/respondent. It was averred that the defendant is a stranger to the suit land, who has bought a small piece of land, adjacent to Khasra No.719 i.e. under Khasra No.718 along with other co-sharers to the extent of 1/6th share i.e. 00-01-03 bighas land out of total land 1Whether reporters of Local Papers may be allowed to see the judgment? -2- measuring 00-07-00 bighas. On Khasra No.718, there are two already constructed houses of Budhi Prakash and Tek Chand. The defendant is constructing her house in the middle of both the houses, as depicted in the site plan. Along with the boundary/support wall, there is an exclusive path, which is paved by the pavers, with the help of Municipal Council, Kullu, and which is used by the plaintiff and the same is within Khasra No.719. Accordingly, the defendant has no right, title or interest to interfere with the peaceful possession of Khasra No.719. It was prayed that the decree for permanent prohibitory injunction be passed against the defendant by restraining her from interfering with peaceful possession of land comprised in Khasra No.719 being owned by the plaintiff/petitioner. 3. Further, it was prayed that the defendant be directed not to cut and excavate the land unscientifically, thereby exposing the boundary/support wall, and further restraining the defendant from excavating the land close to the boundary/support wall of the plaintiff. Lastly, a decree of mandatory injunction was also sought that in case during the pendency of the suit, the defendant causes any sort of damage by any unscientific excavation or digging the boundary/support wall, in that event, the defendant be directed to restore the property to its original position. 4. The plaintiff, along with the suit, has filed an application under Order 39 Rules 1 and 2 of CPC. -3- 5. The suit was contested by the present respondent/defendant by filing a detailed written statement, whereby all the averments and allegations as levelled in the plaint were refuted. It was averred in the written statement that the defendant is constructing her house over her own land. On one side, there is vacant land of one Shri Budhi Parkash and all the co-owners have no objection for the construction of house by the defendant over her own land, which is Khasra No.718. The path, in question, is existing on the spot since long back and the same has been paved by the Municipal Council, Kullu and it is being used by General Public at large and the same is not personal property of the plaintiff. Consequently, the defendant has sought the dismissal of the suit. 6. Learned trial Court vide its order dated 19.04.2023, allowed the application under Order 39 Rules 1 and 2 CPC and passed the following order: “8. Perusal of the site plan as well as the photographs filed on record shows that the Respondent is carrying out construction in a manner which is affecting the boundary/support wall and the same is being damaged and if the construction is allowed to be made by the Respondent without interference by this Court, then the same will lead to affecting the boundary wall/support wall and it will cause an irreparable injury to the Applicant which will not be compensated in money as the same will affect the wall situated over the path leading to the house of the Applicant. The Respondent has every right to make construction on his own land i,e, Khasra No.718, however, the same cannot be -4- allowed to be made in a manner which affects the rights of the other person, i.e., the Applicant in the present case. 9. Considering all the facts and circumstances, the Court is of the view that balance of convenience at this stage lies in favour of the Applicant. The Applicant has satisfied the triplicate test required to grant temporary injunction. Accordingly, the application is allowed and the Respondent herself, through her agents, servants or through her attorney is restrained from interfering into the peaceful possession of the suit land as well as from making construction in a manner that affects the boundary/support wall of the path leading to the house of the Applicant till the disposal of the suit. However, it is made clear that the observation made herein above are strictly for the disposal of this application only and nothing contained therein shall construed an expression of opinion on any controversy between the parties on the merits of the suit. 7. Learned trial Court has observed in its order that the respondent has got every right to carry out construction on her own land i.e. Khasra No.718, however, the same cannot be allowed to be made in a manner which affects the rights of the plaintiff. Learned trial Court allowed the application and it was ordered that the respondent is restrained from interfering with the peaceful possession of the suit land as well as from carrying out construction in a manner that affects the boundary/support wall of the path, leading to the house of the plaintiff, till the disposal of the suit. 8. Feeling dissatisfied, the present respondent/defendant preferred an appeal in the Court of learned District Judge. Along with -5- an appeal, an application under Section 5 of the limitation Act for condonation of delay was also filed. Learned District Judge vide its impugned order dated 02.05.2025, allowed the application, subject to payment of costs of Rs.500/-. 9. Feeling dissatisfied by the impugned order, as passed by the learned District Judge, Kullu, the present petitioner has approached this Court. 10. Mr. Tek Chand, learned counsel for the petitioner, has submitted that the impugned order, as passed by learned District Judge, Kullu, is not sustainable in the eyes of law, as no plausible explanation has been given in the application and the learned District Judge has erred in passing the impugned order. 11. On the other hand, Mr. Paras Dhaulta, learned counsel for the respondent has defended the impugned order and submitted that the reasoning, as assigned by the learned Court below, is plausible and reasonable and no interference of any kind is required in the said order. He further submitted that the scope of interference in a petition filed under Article 227 of the Constitution of India is restricted and this Court will not sit as an appellate Court against the impugned order. 12. I have heard learned counsel for the parties and gone though the case file. 13. A perusal of plaint reveals that the plaintiff/petitioner has filed a suit for permanent prohibitory injunction, restraining the -6- defendant from interfering in the peaceful possession of the land comprised in Khasra No.719. It is the case of the plaintiff that he is owner-in-possession of Khasra No.719. Admittedly, the defendant is owner-in-possession of Khasra No.718. Learned trial Court while allowing the application, as filed by the plaintiff, has come to the conclusion that the respondent has every right to carry out construction on her own land i.e. Khasra No.718 and in the operative portion, it was ordered that the respondent is restrained from interfering into the peaceful possession of the suit land (Khasra No.719) as well as from carrying out construction in a manner that affects the boundary/support wall of the path leading to the house of the plaintiff. It is the case of the defendant that she was under the impression that she has not been restrained from carrying any construction over Khasra No.718. It is the further case of the defendant that she tried to raise construction over her own land and when the plaintiff/petitioner interfered in raising of the construction over her own land, only then she had to approach the learned District Judge by filing the present appeal. 14. There appears to be force in the contentions of the defendant/respondent as the perusal of the order as passed by learned trial Court has specifically held that the respondent has got every right to carry out construction over land bearing Khasra No.718 and when she tried to raise construction over her own land then the -7- plaintiff/petitioner objected and interfered in the said construction forcing the present respondent to file the appeal before the learned District Judge. In the opinion of this Court, the order as passed by learned District Jude is plausible and reasonable and the same does not call for any interference. 15. The Hon’ble Apex Court in Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181, has dealt with the scope of interference while dealing with petition filed under Article 227 of the Constitution and held as under: “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, 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. -8- 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 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." 16. Consequently, there is no error in the impugned order and the petition is ordered to be dismissed with only modification that the costs of Rs.500/- is enhanced to Rs.5,000/-. The respondent shall pay the costs of Rs.5,000/- to the petitioner on the next date of hearing before the learned trial Court. -9- 17. In view of aforesaid discussions and for the reasons stated hereinabove, the instant petition being devoid of any merit is dismissed, so also the pending application (s), if any, leaving the parties to bear their own costs. 18. Before parting, it is made clear that any observation made here-in-above shall not be taken as an expression of opinion on the merits of the main case and the same shall be adjudicated upon uninfluenced by any observation made here- in-above, which are only for the purpose of the instant petition. (Romesh Verma) Judge April 01, 2026. (vt)