2026:HHC:19772 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.537 of 2025 Reserved on: 11.05.2026 Decided on: 26.05.2026 Dharampal Kapoor & others ….Petitioners Versus Surinder Kumar & others ...Respondents Coram Hon’ble Mr. Justice Romesh Verma, Judge Whether approved for reporting? For the petitioners: Mr. Sumit Sood, Advocate. For the respondent: Mr. Naresh Sharma, Advocate, for respondent No.1. Mr. Anil Chauhan, Advocate, for respondent No.2. Mr. Surinder Prakash, Legal Aid Counsel, for respondent No.3. Romesh Verma, Judge The present petition arises out of the order as passed by learned Civil Judge (Junior Division), Court No.3, Shimla, whereby an application filed by the present petitioners under Order 1 Rule 10 of CPC has been ordered to be dismissed. 2. The brief facts of the case are that the present respondent No.1 filed a suit before the learned trial Court against the Municipal Corporation, Shimla (defendant No.1) and Budh Ram (proforma defendant) for permanent prohibitory injunction 2 2026:HHC:19772 restraining the defendant No.1 from damaging, demolishing the roof or any other portion of building or interfering in any manner with the building/structure built upon Khasra No.527 at Mohal and Up Mohal Ridge, Tehsil and District Shimla, H.P. It was averred in the plaint that the plaintiff, along with proforma defendants, Smt. Kanta and Smt. Asha are owners-in-possession of the house/building built upon the land comprised in Khasra No.527, situated at Mohal and Up Mohal Ridge, Tehsil and District Shimla. Smt. Asha and Smt. Kanta are sisters of the plaintiff and proforma defendant and they appointed the plaintiff as their attorney on 31.07.2019. 3. As per the plaintiff, the building was an old construction, and the materials used in the building, more particularly, in the roof, have outlived its life. The plaintiff and proforma defendant on 22.08.2019 approached defendant No.1 with a request to permit them to repair the roof of the building, as it may collapse due to its precarious condition. If the necessary repairs are not carried out, it will endanger the lives of the occupants. Though, the said application was diarized by the plaintiff, however, nothing has been heard from the side of defendant No.1. In the intervening night of 09.02.2024 to 10.02.2024, a portion of roof and supporting wall gave way, 3 2026:HHC:19772 thereby endangering the lives of occupants residing in the suit premises, The wooden planks on which the roof rested gave way, which was the major reason for the collapse of roof. On account of the collapse, the plaintiff repaired the roof by replacing old tins with new ones, as the old tins, wood, and other materials used in the building had outlived its life with the passage of time. The neighbours of the plaintiff and proforma defendant, who are inimical to the plaintiff, filed a complaint before respondent No.1/ defendant. Acting upon the said complaint, a notice under Section 254(1) of Municipal Corporation Act was issued and duly replied to, thereby clarifying all the facts diarized by defendant No.1. 4. In the plaint, it was averred that the plaintiff and proforma defendant are absolute owners-in-possession of the suit premises. They have also applied for permission and submitted all the relevant and, necessary documents to the competent authority, from whom permission has been sought. Defendant No.1, through its officials, is now threatening to demolish the entire roof and walls of the building of the plaintiff without any plausible reason. Therefore, decree for permanent prohibitory injunction restraining defendant No.1, its officials, workers, employees or any other persons claiming through or under it from 4 2026:HHC:19772 damaging, demolishing roof and portions of wall of building was sought from the learned trial Court. 5. Along with the suit, respondent No.1/plaintiff filed an application under Order 39 Rules 1 and 2 of CPC for grant of ad interim injunction by restraining defendant No.1, its officials, workers, employees from damaging, demolishing roof and portions of wall of the building. Learned trial Court passed an ad interim injunction in favour of respondent No.1/plaintiff. 6. Thereafter, the present petitioners filed an application under the provisions of Order 1 Rule 10 of CPC to implead them as party defendants in the Civil Suit. It was stated in the application that, while filing the suit, the plaintiff suppressed true and material facts from the Court. It was stated that the previous owner/predecessor of the applicant, Smt.Aruna Khub Chand Ajwani, had filed a suit for possession against late Shri Kirlu Ram. However, learned Civil Judge (Junior Division), Court No.2, Shimla vide its judgment and decree dated 10.10.1985 passed in the said Civil Suit held that late Shri Kirlu Ram had perfected his title over the dhara by way of adverse possession. As such, the suit was dismissed. Further, it has been averred that in the year 2007, the petitioners had also filed a civil suit for possession and injunction against respondent No.1 and other legal heirs of late 5 2026:HHC:19772 Shri Kirlu Ram. While deciding the said civil suit, learned Civil Judge (Junior Division), Court No.7, Shimla, vide its judgment and decree dated 19.06.2012, passed in Civil Suit No.107-1 of 2009/07 restrained respondent No.1 and other heirs of Kirlu Ram from encroaching and interfering with the right of ownership and possession of the petitioners over the entire land except the prayer with respect to the possession of land comprised in Khatauni No.270, Khasra No.527 was dismissed on the basis of judgment and decree dated 10.10.1985. 7. As per the petitioners, present respondent No.1 had started illegal construction, and while doing so, he converted old dhara into a double-storeyed permanent structure. While doing such an illegal act, respondent No.1 also encroached over a portion of the surrounding land. Respondent No.1, by concealing true facts from the Court, obtained an ex parte injunction from the Court in the present proceedings. After obtaining ad interim injunction on 16.02.2024, respondent No.1 is further doing and carrying out illegal construction, whereby he has converted an old temporary shed into a double-storeyed permanent structure and while doing such an illegal construction, he has encroached upon part of the land comprised in Khasra No.524, 525, 529, 530, 534, 541, 564 and is further trying to encroach upon the same. 6 2026:HHC:19772 Therefore, it was prayed that respondent No.1 has intentionally not arrayed the present petitioners as party defendants. It was submitted that they are necessary party to the present lis. Therefore, they may be arrayed as party defendants in the civil suit. 8. The said application was duly contested by respondent No.1 by taking preliminary objections with respect to maintainability, suppression of facts dominius litis etc. On merits, it was stated that respondent No.1 has not carried out any illegal construction as alleged by the petitioners. It was denied that the plaintiff has encroached upon the portion of surrounding land of the petitioners. The petitioners failed to plead the nature and extent of the alleged encroachment and over which part of the suit land respondent No.1 has allegedly encroached upon. It was stated that the complaint, if any, made by the petitioners was false and concocted. It was stated that the petitioners had constructed three luxury villas by flouting the laws and were openly threatening that they would erase or demolish the house/structure by hook or by crook. It was further stated that the area of respondent No.1 is well defined and that the petitioners had constructed the retaining wall commonly with the wall of the building/structure of respondent No.1 and while doing so, they 7 2026:HHC:19772 had encroached upon his land. All the averments as made in the application were denied and refuted. The learned trial Court vide its impugned order dated 26.06.2025, rejected the application as filed by the present petitioners. 9. Feeling dissatisfied against the impugned order, the petitioners have invoked the provisions of Article 227 of the Constitution of India. 10. It is contended by Mr. Sumit Sood, learned counsel for the petitioners, that the impugned order as passed by the learned trial Court is erroneous and liable to be quashed and set aside. He has submitted that being necessary party, the petitioners ought to have been arrayed in the civil suit as party defendants. He further submitted that the learned trial Court has not applied the provisions of Order 1 Rule 10 of CPC correctly and has dismissed the application in a slipshod manner. 11. On the other hand, Mr. Naresh Sharma, learned counsel for respondent No.1, has defended the impugned order. He has submitted that the impugned order as passed by the learned trial Court is legal, valid and sustainable and no interference of any kind is required in the present proceedings. He further submitted that the present petitioners are neither the necessary party nor proper party and the suit can be decided on 8 2026:HHC:19772 the basis of pleadings of the respective parties, and the impeadment of the present petitioners is not required in the civil suit. He further submitted that this Court will not interfere while invoking the provisions of Article 227 of the Constitution of India as per mandate as laid down by the Hon’ble Supreme Court. 12. Mr. Anil Chauhan, learned counsel for the Municipal Corporation, contended that based upon the complaint, notice under Section 254(1) of the Municipal Corporation Act was issued and they have acted strictly in accordance with the provisions of the Act 13. I have heard learned counsel for the parties and perused the case file. 14. The petitioners have approached this Court by assailing the order as passed by learned Civil Judge, Court No.3, Shimla dated 26.06.2025, whereby the application filed by them for their impeadment has been ordered to be dismissed. It is the case of the applicants/petitioners that in order to examine the controversy in hand, they are necessary and proper party. It is further the case of the petitioners that the plaintiff/respondent No.1 has withheld and concealed the material facts from the Court by not arraying them as the party defendants. 9 2026:HHC:19772 15. On the other hand, the defendants have taken a stand that the dispute in the present case is between the plaintiff and the Municipal Corporation i.e. the statutory authority. The plaintiff has approached the Court against the issuance of notice which has been issued by the Municipal Corporation. The petitioners have no role in the present proceedings and they are not required to be impleaded as party defendants. 16. It is vehemently contended by learned counsel for the petitioners that a civil suit for possession and permanent prohibitory injunction was filed by them in the Court of learned Civil Judge (Junior Division), Court No.7 on 02.06.2007. The said suit filed by the present petitioners was partly decreed whereby the defendants by way of permanent prohibitory injunction were restrained from encroaching upon and interfering with the right of ownership and possession of the petitioners over the land comprised in Khata No.175, Khatauni Nos.268 and 269, situated at Mohal Ridge, Tehsil and District Shimla, H.P. However, the suit with regard to Khatauni No.270, Khasra No.527 was ordered to be dismissed. In the said Civil Suit, reference has been made to the judgment dated 10.10.1985 (Ext. DW-5/A), whereby it was held that the respondents in the present case had become owners by way of adverse possession with regard to Khasra 10 2026:HHC:19772 No.449(A) which is part of Khasra No.449. Meaning thereby that, by virtue of adverse possession, respondent No.1 and the successors of Kirlu Ram were held to have title over the shed, having acquired it by virtue of adverse possession. However, an injunction was granted in favour of the petitioners qua the remaining land. It is the case of the petitioners that under the garb of making repairs, respondent No.1 is trying to encroach upon the remaining part of the land, for which the decree for permanent prohibitory injunction has been passed by the competent Court of law. 17. In support of his contentions, learned counsel for the petitioners has relied upon the following judgments of Hon’ble Supreme Court: (a) Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota vs. Shukla and brothers, (2010) 4 SCC 785; (b) Maya Devi (dead) through LRs vs. Raj Kumar Batra (Dead) through LRs and others, (2010) 9 SCC 486; and (c) Aliji Momonji & Co. vs. Lalji Mavji and others, (1996) 5 SCC 379; 11 2026:HHC:19772 18. On the other hand, it is the case of respondent No.1 that in earlier two rounds of litigation, the present petitioners were non-suited and the plaintiff and legal heirs of Kirlu Ram were held to be owners-in-possession of the shed by virtue of adverse possession. It is further the case of respondent No.1 that now again by instituting the complaint, the present petitioners intend to set aside the judgment and decree passed by competent Court of law in two different proceedings. 19. This Court is convinced with the arguments as made by Mr.Naresh Sharma, learned counsel for the respondent No.1 that once a competent Court of law has passed decrees by holding the plaintiff and his predecessor to have acquired title by virtue of adverse possession, and in case a decree for injunction has been passed in favour of the present petitioners, if there is any violation qua the same, the remedy of the petitioners lies somewhere else. In the present case, the dispute is between respondent No.1 and Municipal Corporation with respect to the issuance of notice. The learned trial Court has to examine the validity of the notice. Therefore, the impleadment of the petitioners is not required in the said proceedings. As rightly pointed by learned counsel for the respondents that in case there is any violation of the judgments passed by learned Civil Judge 12 2026:HHC:19772 (Junior Division), Court No.7, Shimla and learned Civil Judge (Junior Division), Court No.2, Shimla, the remedy of the petitioners is somewhere else. To the similar extent, in case respondent No.1 is violating the judgment of injunction by raising construction and encroaching over the land of the present petitioners then they are at liberty to initiate appropriate proceedings. 20. The Hon’ble Apex Court in Gurmit Singh Bhatia vs. Kiran Kant Robinson and others, (2020) 13 SCC 773 has held that the Court has to satisfy two tests for determining the question as to who is a necessary party. The test are (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. 21. The plaintiff is the dominus litis. It is the choice of the plaintiff to whom he intends to add as party defendant. In the present case also, the petitioners have failed to establish any right, to the relief which has been sought by the plaintiff against the Municipal Corporation. Further, the petitioners have failed to corroborate that no effective decree can be passed in their absence. The Hon’ble Apex Court in the aforesaid judgment has held as follows: 13 2026:HHC:19772 “5.2 An identical question came to be considered before this Court in the case of Kasturi (supra) and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question who is a necessary party. The tests are – (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the 14 2026:HHC:19772 suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.” 22. Similarly, the Hon’ble Apex Court in Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd. & Ors., (2010) 7 SCC 416 has held that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or 15 2026:HHC:19772 necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit The Hon’ble Apex Court has reiterated the principles of Order 1 Rule 10 (2) of CPC in the following manner: “13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: "Court may strike out or add parties. -(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and 16 2026:HHC:19772 completely to adjudicate upon and settle all the questions involved in the suit, be added." 14 The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 15. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is 17 2026:HHC:19772 decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.” 23. In the present case, the parties are litigating since 1985 and it has come on record that Civil Court had adjudicated the point in controversy by holding respondent No.1 and his predecessor to acquire title by adverse possession. Now, in order to disturb those findings, the petitioners cannot be permitted to join the proceedings and to rake up the litigation, which has come to an end more than 40 years ago. Learned trial Court has rightly come to the conclusion that in case there is any encroachment on the part of respondent No.1 in that event, the remedy of the petitioners lies somewhere else. The petitioners cannot be permitted to be added as party defendant against the wishes of the plaintiff, who is admittedly dominious litis in the proceedings. Learned trial Court, after appreciating the material placed on record has rightly dismissed the application filed by the petitioners under Order 1 Rule 10 of CPC for their impleadment. This Court finds no infirmity, illegality or jurisdictional error in the impugned order. 24. The Hon’ble Apex Court in Civil Appeal No.13801 of 2025, titled Shri Digant vs M/S. P.D.T. Trading Co. & Ors., while adjudicating the powers of High Court while deciding the 18 2026:HHC:19772 petition under Article 227 of the Constitution of India has held as follows: “22. The scope of High Court’s jurisdiction under Articles 226/227 fell for consideration before a three- Judge Bench of this Court in Radhey Shyam & another v. Chhabi Nath & Ors. 1 This Court held that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226, though they may be questioned in the supervisory jurisdiction of the High Court under Article 227 of the Constitution. The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and correcting mere errors. exercised in cases The not for power occasioning may be grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.” 25. Similarly, the Hon’ble Supreme Court in Sugarbai M. Siddiq and others vs. Ramesh S. Hankare (dead) by LRs, 2001(8) SCC 477 has held as under: “6. There can be little doubt that in an application under Article 227 of the Constitution, the High Court has to see whether the lower courts/tribunal has jurisdiction to deal with the matter and if so, whether 19 2026:HHC:19772 the impugned order is vitiated by procedural irregularity; in other words, the court is concerned not with decision but with decision making process. On this ground alone the order of the High Court is liable to be set aside.” 26. The Hon’ble Apex Court in Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181, has held that while exercising power under Article 227 of the Constitution of India, the High Court does not act as a Court for first appeal. The relevant paras of the said judgment read 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. 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 20 2026:HHC:19772 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 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 21 2026:HHC:19772 perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” 27. In view of above exposition of law, this Court sees no infirmity or perversity in the impugned order. 28. 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. 29. 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 26th May, 2026 (vt)