IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 32 of 2024 Decided on: 28.06.2025 ____________________________________________________ Shiv Pal ……….. petitioner Versus Dayal Devi and another ……….respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Mr. Sanjeev Bhushan, Sr. Advocate, with Mr. Sohail Khan, Advocate. For the respondents : Mr. Neeraj Gupta, Sr. Advocate with Mr. Pranjal Munjal, Advocate. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present petition has been preferred by the petitioner, laying challenge to impugned order dated 12.12.2023, passed by learned Addl. District Judge (CBI Court, Shimla, in case No. 7-S/14 of 2023, title Smt. Dyal Devi v/s Shri Shvi Pal Singh, whereby the order dated 18.9.2023, passed by learned Sr. Civil Judge, Court No.2, Shimla on an application under order 39 Rules 1 & 2 CPC has been partly reversed. 1. At the very outset, it would be appropriate to mention that the present petition has been preferred under Article 227 of the Constitution of India. 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 2. This Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand, in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. (See Sadhana Lodh vs. National Insurance Co. Limited and another, (2003) 3 SCC 524 and Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181).\ 3. Besides the aforesaid the 1st Appeal in the case at hand was an appeal on principle. In this respect, reference can be made to judgment reported in 1990 (Supp) SCC 727 titled Wander Ltd. & Anr. Vs. Antox India Pvt. Ltd., decided on 26.04.1990, the relevant extract is reproduced as under:- “…...14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where they had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reasonably possible on the 3 material. The appellate Court would normally not with justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion. After referring to these principles Gajendragadker, J.in Printers (Mysore) Private Ltd. Vs. Pothan Joseph. (SCR 721). ….These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘…. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.” 4. Heard learned counsel for the parties, perused the petition and the impugned order 5. The petitioner filed a suit seeking a permanent prohibitory injunction against the respondents to restrain them from demolishing an existing double-storeyed building constructed on land comprised in Khasra No. 213, measuring 0-0-76 hectares, situated at Mauza Malyana, Tehsil and District Shimla. The petitioner also sought to prevent the respondents from raising any construction over the suit property until its partition and from making any additions, alterations, or causing damage to an existing three-storeyed building on Khasra No. 214, measuring 0- 00-98 hectares, in the same location. Additionally, the petitioner requested an injunction to stop the respondents from forcibly 4 occupying the ground floor of the three-storeyed building. Along with the suit, the petitioner filed an application under Order 39 Rules 1 and 2 of the CPC, seeking interim relief to restrain the respondents from demolishing the double-storeyed building on Khasra No. 213, damaging the three-storeyed building on Khasra No. 214, or forcibly occupying the vacant portion of the ground floor of the three-storeyed building. 6. The learned trial court, after hearing both parties, directed the parties to maintain status quo regarding the nature, possession, and construction over the suit land until the final disposal of the suit or partition, whichever occurred earlier. Dissatisfied with this order, the respondents filed an appeal under Order 43 Rule 1(e) of the CPC before the Additional District Judge (CBI), Shimla, who partly allowed the appeal and vacated the status quo order qua Khasra No. 213. Aggrieved by this decision, the petitioner has approached this court, contending that the appellate court erred in its appreciation of facts and misapplied the law, thereby vitiating the impugned order. 7. In the present petition, the petitioner contends that the suit property is jointly owned by the parties and that the respondents' attempt to demolish and reconstruct portions of the buildings amounts to an act of ouster, prejudicial to his interests. The petitioner further asserts that the suit property, being the only part of the joint holdings abutting the National Highway, holds 5 significant value and that any unilateral action by the respondents would irreparably harm his rights. 8. In response, the respondents deny the existence of a concrete double-storeyed building on Khasra No. 213 and dispute the petitioner’s claim of joint possession over the structures in question. They assert that the three-storeyed building on Khasra No. 214 is partly in their occupation, with half of the ground floor being used as a store and the other half rented out. The respondents further contend that the suit property had already been allotted to the predecessors of the respondents as per a family arrangement dated 06.12.2006, and that the petitioner, having constructed his own building on Khasra No. 244, cannot now claim rights over the disputed properties. They argue that the reconstruction being undertaken on Khasra No. 213 is merely to replace an old and dilapidated structure and does not affect the petitioner’s rights, particularly since he has not been in possession of the said property. 9. The revenue records (Jambandi for 2013-2014) indicate joint ownership of the suit land among the petitioner, respondents, and one Dalip Singh. However, the respondents produced an affidavit from Dalip Singh supporting their claim of a prior family arrangement under which the suit property had been allotted to the predecessors of the respondents. Prima Facie the aforesaid family arrangement, of which a reference has been made by the 6 respondents is invalidated and the fact to the contrary that the suit land has not been partitioned is validated by the act of the petitioner as he has raised construction upon Khasra number 244- a part of the suite land. The plaintiff should have sought partition of the entire holding before himself raising construction. Once he raised the construction without obtaining partition then he cannot claim that the other co-sharers should be restrained from raising construction on the vacant portion as Injunction is an equitable remedy. A plaintiff seeking it must approach the court with clean hands, adhering to the principle that "he who seeks equity must do equity." Having admittedly constructed his own house on part of the suit land, the petitioner is now estopped from challenging the respondents' construction activities, having effectively waived such rights. Moreover, the photographs placed on record make it clear that Khasra No. 244, 213 and 214 all abut the road and are hence valuable. 10. On Khasra No. 213, the petitioner has failed to establish his possession and the respondents were merely reconstructing an old, dilapidated structure Therefore beside the aforesaid petitioner has not demonstrated any immediate threat of irreparable loss, particularly since he had his own independent construction on Khasra No. 244, while the respondents were asserting their rights over the disputed properties based on the alleged family arrangement. Nowhere has it been established that 7 the construction being raised by the Defendant in case is in excess of their share. 11. After a careful consideration of the material on record and the submissions made, this Court finds no infirmity in the order passed by the first appellate court. The petitioner has not been able to substantiate his claim of being in possession of the structure on Khasra Nos. 213, nor has he demonstrated that the respondents’ actions would cause irreparable harm warranting interim relief. The revenue records, while indicating joint ownership, do not conclusively establish the petitioner’s possession. Moreover, the balance of convenience does not favor the petitioner, as the respondents’ claim of reconstructing a dilapidated structure for legitimate use appears prima facie justified. 12. In view of the foregoing, this Court finds no merit in the petition. The impugned order of the first appellate court does not suffer from any legal or factual error warranting interference. Consequently, the petition is dismissed, leaving the parties to bear their own costs. All pending applications, if any, also stand disposed of accordingly. (Bipin Chander Negi) Judge June 28, 2025 Tarun/T.B