2026:HHC:25161 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 16/2025 Decided on: 23.06.2026 Sunita …..Petitioner Versus Rachna Devi & ors. …Respondents ______________________________________________________________ Coram: The Hon’ble Mr. Justice RomeshVerma, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Sunny Modgil, Advocate (through V.C.) For the Respondents: Mr. Sanjeev Kumar Suri, Advocate, for respondents No. 1, 2 and 4. Romesh Verma, Judge (oral) The instant petition arises out of judgment, dated 18.12.2024, as passed by the learned District Judge, Una, H.P., whereby appeal, as preferred by the plaintiff/petitioner, came to be dismissed and the order, dated 08.04.2024, as passed by the learned Senior Civil Judge, Una, HP., dismissing the application under Order 39 Rules 1 and 2 CPC, as filed by the plaintiff/petitioner, was affirmed. 1Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2 The facts, as emerge in the instant case, are that plaintiff/petitioner filed a suit for permanent prohibitory injunction restraining the defendants from changing existing nature and character by way of raising any sort of construction in any manner and from ousting the plaintiff from joint possession of land measuring 0-16-20 hectares, comprised in Khewat No. 83, Khatauni No. 93, Khasra Nos. 460, 461, Kitta-2, as entered in jamabandi for the year 2020-21, situated at Up Mohal Santokhgarh Swan, Sub Tehsil Mehatpur Basdehra, District Una, H.P. As per averments, as made in the plaint, the suit land is joint inter se the parties and the defendants are legal heirs of one Karma, co-sharer in the suit land, who died about one year ago and mutation to this effect has yet not been attested. It was averred that the defendants being very clever, headstrong and influential persons having no regard for law were threatening to change nature and character by raising construction over the suit land in an illegal manner, therefore, the suit was filed against the defendants seeking permanent prohibitory injunction, as aforesaid. 3 The plaintiff/petitioner along with the plaint filed an application under Order 39 Rules 1 and 2 CPC for grant of ad interim injunction restraining the defendants from raising 3 construction over the suit land during the pendency of the civil suit. 4 The defendants contested the suit by filing written statement, wherein preliminary objections with respect to maintainability, cause of action, estoppel etc. were raised. On merits, all the averments, as made in the plaint, were specifically refuted and denied. It was averred that the plaintiff in connivance with her family members, especially brother Mohan Lal, has filed false and frivolous suit against the defendants since he has already raised his double storey residential house over the suit land by covering his share in the suit land including frontal portion as per his entitlement and now the plaintiff/petitioner has no right to restrain the defendants to raise their residential house over their share in the suit land. It is the case of the defendants that they are owners in possession of half share in the suit land and thus, they prayed for dismissal of the suit. 5 The application under order 39 Rules 1 and 2 CPC was duly contested by the petitioner/plaintiff by filing comprehensive reply. 6 Learned trial court vide order dated 08.04.2024 dismissed the application under Order 39 Rules 1 and 2 CPC. 4 7 Feeling dissatisfied, the plaintiff/petitioner approached the learned first appellate court by filing any appeal under Order 43 Rule 1 read with Section 151 CPC, which too came to be dismissed vide judgment, dated 18.12.2024, passed by the learned first appellate Court. 8 Still feeling aggrieved by the judgment/order, as passed by the learned Courts below, the plaintiff/petitioner has approached this court by filing the instant petition under article 227 of the Constitution of India. 9 Mr. Sunny Modgil, learned counsel for the plaintiff/petitioner, has contended that the impugned judgment/order, as passed by both the learned Courts below, are erroneous and thus liable to be quashed and set aside. He has submitted that the plaintiff has been able to make out a prima facie case in his favour, therefore, during the pendency of the suit, the learned courts below ought to have passed status quo order qua the suit land. He has further submitted that after accepting the instant petition, the application filed for ad interim injunction deserves to be allowed. 10 On the other hand, Mr. Sanjeev K. Suri, Advocate, learned counsel for the respondents No. 1, 2 and 4, has defended the impugned orders. He has submitted that no interference of any kind is required in the well reasoned and 5 concurrent judgment/order, as passed by the learned Courts below, by this Court while exercising power under article 227 of the Constitution of India. 11 I have heard the learned counsel for the parties and have also gone through the material available on record. 12 Admittedly, in the present case, the parties are co- sharers and as has been rightly pointed out by the defendants and held by the learned Courts below that the defendants are owners in possession of ½ of the share of total suit land. It is also admitted that brother of the plaintiff/petitioner has raised double storey construction over the suit land. Once brother of the plaintiff/ petitioner himself has raised construction over the suit land, now it does not lie in the mouth of the plaintiff/petitioner to say that till the time partition takes place, the defendants be restrained from raising any kind of construction. 13 This Court in Ashok Kapoor vs. Murtu Devi 2016 (1) Shimla Law Cases 207, has laid down exposition of law, whereby it has been held that mere making of construction or improvement in the common property does not amount to ouster. If by the act of the co-owner in possession, the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the 6 diminution of the value and utility of the property. It has been further held that if the acts of the co-owner in possession are detrimental to the interest of other co- owners, a co-owner out of possession can seek an injunction to prevent such an act, which is detrimental to his interest. 14 From the perusal of the plaint, it is clear that the plaintiff has nowhere mentioned in the entire body of the plaint as to which portion of the suit land is best and valuable one. Merely by stating that the defendants are raising construction over the best and valuable portion of the suit land will not furnish any cause of action in favour of the plaintiff. 15 It is well settled that a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of the co-owner out of possession. Mere making of construction or improvement in the common property does not amount to ouster, rather, if by any act of the co-owner in possession, the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property. The acts of the co-owner in possession and a co-owner out of possession can 7 seek an injunction to prevent such an act which is detrimental to his interest. Therefore, a co-sharer cannot be restrained from raising construction over the joint land unless it is shown that such an act would constitute prejudice and mere raising of construction does not amount to any prejudice as has been held by this Court in Ramesh Kumar vs. Sheetal & others 2021 (1) Shimla Law Cases 377. 16 In the instant case, as rightly held by the learned Courts below that defendants/respondents are in possession of ½ of the total suit land, whereas the plaintiff is having very meager share, therefore in such circumstances, the plaintiff has failed to pass triplicate test of prima facie case, balance of convenience and irreparable loss. Importantly, the brother of the plaintiff himself has raised double storey construction over the suit land. The plaintiff cannot be permitted to adopt policy of pick and choose. Once she chose not to agitate the construction, as raised by her own brother on the joint land, now she cannot be permitted to raise the plea of co-sharer against the defendants. Once the brother of the plaintiff has raised construction over joint land and she chose not to seek any injunction against him, therefore, the plaintiff is estopped by her own acts, deed and conduct. 8 17 From the strength of the revenue record, it is clear that it is the defendants, who have got prima facie case in their favour and balance of convenience also lies in their favour and in case they are injuncted, they shall suffer huge irreparable loss. 18 The learned courts below have rightly exercised the jurisdiction after taking into consideration the material placed on record by the respective parties. 19 Learned counsel for respondents No. 1, 2 and 4 has cited judgment of the Hon’ble Supreme Court in Civil Appeal No(s).13801 of 2025, titled as Shri Digant vs M/s P.D.T. Trading Co. & others, wherein the Hon’ble Supreme Court while dealing with petition under Article 227 of Constitution of India has laid down parameters. The relevant paragraph thereof reads as under:- 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 not for correcting mere errors. The power may be exercised in cases 9 occasioning 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.” 23. In the case on hand, the appellate court had considered whether the proceeding in detail the issue as to court was justified in trial with the case, without further notice to the defendants, after submission of pursis (Exh.42) by defendants’ counsel, claiming no instructions. After a threadbare analysis and taking into consideration surrounding circumstances, the appellate court held that the trial court had committed no wrong proceeding with the matter court representing with noticed the the that defendants matter. The appellate Court noticed that the advocate representing the defendants had claimed no instructions but not sought withdrawal of his Vakalatnama and the matter thereafter remained pending for over three months till it was decided in March 2015. In between no effort was made by the defendants to engage another lawyer. Moreover, the defendants did not come up with a case that their lawyer’s notice was not served on them therefore, they could not engage another counsel Besides that, the record also indicated that the intention of the defendants was to delay the proceedings because earlier also the suit had proceeded ex parte against them though, later, those orders were recalled. Therefore, in our view, once the appellate court took into consideration all relevant aspects including the fact that pursis (Exh.42) did not seek withdrawal of the Vakalatnama, and withdrawal was not even permitted, there was no such jurisdictional error 10 which warranted exercise of powers under Article 227 of the Constitution of India. The High Court without any justification procedure went consider the procedure prescribed for withdrawal Vakalatnama when neither withdrawal of Vakalatnama was permitted by the Trial Court nor the pursis prayed for its withdrawal. In such circumstances, the entire exercise of the High Court was misconceived. More so, when the view taken by the appellate Court that defendant cannot take advantage of his own wrong was a plausible view based on materials available on record. Hence, in our view, appellate court’s order was not amenable to interference in exercise of jurisdiction under Article 226/227 of the Constitution of India. The High Court clearly exceeded its jurisdiction under Article 2278 of the Constitution in interfering with well reasoned order of the appellate Court.” 20 Similar exposition of law has been laid down by the Hon’ble Supreme Court in case titled as Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181, wherein in paras 15 and 16, it has been 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 re- appreciate, 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 11 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 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. 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 12 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. 19. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May, 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt 30 that the application for setting aside the ex-parte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to 13 take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution.” 21 Taking into consideration the aforesaid exposition of law, as laid down by the Hon’ble Supreme Court, this Court is of the considered opinion that there is no perversity or jurisdictional error in the impugned orders, as passed by the Courts below. 22 Consequently, the present petition being devoid of any merit is dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs. 23 Any expression of opinion, hereinabove, shall have no bearing on the merits of the case and shall be deemed to have been made only for the purpose of disposal of instant petition. (Romesh Verma) 23rd June, 2026 Judge (pankaj)