( 2026:HHC:34118 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.307 of 2024 Decided on: 11.08.2026 Jagdev Chad (since deceased) through LRs. …Petitioners Versus Gurbaksh Singh & Anr. …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 _______________________________________________________________ For the petitioners : Mr. Mohit Jaitak, Advocate, through video conferencing. For the respondents : None. __________________________________________________________ Virender Singh, Judge Petitioner-Jagdev Chand has ﬁled the present petition, under Article 227 of the Constitution of India, against the order dated 23.04.2024, passed by the Court of learned District Judge, Una, District Una, H.P, (hereinafter referred to as the First Appellate Court), in Civil Miscellaneous Appeal No.19/2024, titled as Gurbaksh Singh and Jagdish Chand and another. 2. By way of order dated 23.04.2024, the learned First Appellate Court, has partly allowed the appeal, preferred by the respondent No.1-Gurbaksh Singh, under Order 43 Rule 1 of CPC. 1 Whether Reporters of local papers may be allowed to see the judgment? ( 2026:HHC:34118 ) 3. Respondent No.1-Gurbaksh Singh, has ﬁled the said appeal, before the learned First Appellate Court, against the order dated 11.03.2024, passed by the Court of learned Civil Judge, Court No.II, Una, District Una, H.P. (hereinafter referred to as the trial Court), in CMA No.311 of 2023, ﬁled in civil suit, titled as Gurbaksh Singh versus Jagdish Chand and another. 4. By way of the order dated 11.03.2024, the learned trial Court has dismissed, an application under Order 39, Rules 1 and 2 CPC, ﬁled by respondent No.1- Gurbaksh Singh. 5. For the sake of convenience, the parties to the present lis, are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 6. Factual position, as emerges from the documents annexed, with the petition, may be summed up, as under:- 6.1. Plaintiﬀ-Gurbaksh Singh, has ﬁled the suit for permanent injunction restraining the defendants from changing the existing nature and character, by raising any sort of construction or otherwise, taking exclusive possession, by ousting the plaintiﬀ from his possession ( 2026:HHC:34118 ) over the land, as well as, 3 meters, wide passage and house, situated over the land measuring 00-05-67 hectares, comprised in Khewat No.101, Khatauni No.132, bearing Khasra No.559 and land measuring 00-02-81 hectares, comprised in Khewat No.74, Khatauni No.101, bearing Khasra No.556, as per Jamabandi for the year 2017-18, situated in Mohal Sasan, Tehsil Bangana, District Una, H.P, (hereinafter referred to as the suit land). In the alternative, plaintiﬀ has also sought the relief of mandatory injunction, directing the defendants to restore the passage to the house and to remove the super structure, if so raised, by the defendants forcibly during the pendency of the suit and to restore the suit land in its original position. 6.2. The said relief has been sought, on the ground, that the suit land is jointly owned and possessed by the parties to the lis, along with other co-sharers. The plaintiﬀ has not sought any relief, against the other co-owners. However, they can join the suit, whenever, they desire. The suit land is stated to be valuable piece of land, situated in the vicinity of the village Abadi and due to its prime location, its value runs into lacs and the same is ﬁt for raising residential Abadi. The suit land is stated to be joint ( 2026:HHC:34118 ) in ownership and possession and has not been partitioned between the co-sharers, by metes and bounds, as such, no co-owner has any exclusive right to change the nature and character of the suit land, by way of raising any sort of construction or in any other manner, without the consent of other co-sharers or without partition, in accordance with law. 6.3. It is his further case that the defendants always create trouble and to settle the matter for once and for ever, the partition proceedings were initiated, by the plaintiﬀ. The ‘Fard Mouqa Kabja’ was prepared as, at the spot, there exists Abadi of plaintiﬀ, which is away from the road, in lieu of excessive road front with the defendants, as such, the predecessor of defendants had given more land to the plaintiﬀ orally and the predecessor of the defendants had also received Rs.20,000/- from the plaintiﬀ, in lieu of his share, in joint land in the shape of one room and adjoining land. The receipt was also executed, however, the plaintiﬀ, in good faith, never tried for transfer of land, in due process of law, as his brother never caused any problem and the relations remained cordial with them. However, the defendants have now started creating ( 2026:HHC:34118 ) pressure upon the plaintiﬀ and they have also made eﬀorts to obstruct the passage of the plaintiﬀ. 7. On the basis of the above facts, a prayer has been made to decree the suit. 8. Along with the suit, application under Order 39, Rules 1 and 2 of CPC, has also been ﬁled. 9. When put to notice, the suit has been contested, by the defendants, by ﬁling written statement, in which, they have taken the preliminary objections that the plaintiﬀ is estopped from ﬁling the present suit, on account of his act and conduct, he has not approached to the Court with clean hands and plaintiﬀ has no cause of action to ﬁle the present suit. 9.1. On merit, the joint-ness of the suit land has not been disputed. However, according to the defendants, Khasra No.556 is jointly owned by the parties, which is Abadi and plaintiﬀ is in possession of 15 marlas of land, whereas, he is owner of only 8 marlas of land. The Abadi of defendant No.2, Jagdev Singh is in about 14 marlas, whereas, he is owner to the extent of 21 marlas. The Abadi of defendant No.2 was existing, since long 30 years back. The father of the defendants bequeathed the property, in ( 2026:HHC:34118 ) favour of defendant No.1 and thereafter, defendant No.1 and his mother Roshani Devi, transferred her share to defendant No.2. Thereafter, he also become the joint owner in the said Khasra number. The cattle shed is there, in Khasra No.556. 9.2. Highlighting the dilapidated conditions of the house constructed upon the suit land, it has been pleaded that the said house may fall, at any time and may cause loss of life and property. Defendant No.2 wants to replace the roof and also wants to attach a veranda to it. The allegations that the predecessor of defendants received Rs.20,000/- in lieu of one room has also been controverted. 10. On the basis of the above facts, a prayer has been made to dismiss the suit. 10.1. On the similar line, the application under Order 39, Rules 1 and 2 CPC, has also been contested. 10.2. In the replication, the plaintiﬀ has admitted that he has raised the construction over the land, but, according to him, the same has been raised with the consent of all the co-sharers. 11. The learned trial Court, after hearing learned counsel appearing for the parties, has dismissed the ( 2026:HHC:34118 ) application under Order 39, Rules 1 and 2 CPC, vide order dated 11.03.2024. The application has been dismissed mainly, on the ground, that the injunction is a discretionary relief and the Court, apart from other parameters, has to see in whose favour, equity lies. 12. According to the learned trial Court, from the evidence placed on record, it has been established that the plaintiﬀ has covered more than his share, in Khasra No.559. As such, the application under Order 39, Rules 1 and 2 CPC, has been dismissed. 13. The said ﬁndings have been assailed, by the plaintiﬀ, before the learned First Appellate Court, by way of the appeal. The said appeal has been partly allowed by the learned First Appellate Court, directing the parties to maintain status quo, qua nature and possession of the passage, outside the boundary wall, in west side of the house of the defendant, in Khasra No.559, shown in green colour, by the defendants, in the site map attached, with the ﬁle of learned trial Court. 14. The said ﬁndings have been assailed, before this Court, by way of the instant petition. ( 2026:HHC:34118 ) 15. The learned trial Court has dismissed the application, under Order 39, Rules 1 and 2 CPC, whereas, the learned First Appellate Court, has partly allowed the appeal, preferred by the plaintiﬀ, directing the parties to maintain status quo, qua passage, which is situated in Khasra No.559. 16. The powers of the learned First Appellate Court, under Order 43, Rule 1, of CPC have elaborately been discussed by the Hon’ble Supreme Court, in case, titled as Ramakant Ambalal Choksi versus Harish Ambalal Choksi and others, 2024 INSC 913. Relevant paragraphs-20 to 32 of the said judgment, are reproduced, as under:- “20.Order 43 of the CPC speciﬁes the orders against which an appeal lies. SubRule (r) of Rule 1 of the said order provides that an appeal would lie against an order made under Rules 1, 2, 2A, 4 and 10 of Order 39 of the CPC respectively. 21.The law in relation to the scope of an appeal against grant or non-grant of interim injunction was laid down by this Court in Wander Ltd. v. Antox India P. Ltd. reported in 1990 Supp SCC 727. Antox brought an action of passing oﬀ against Wander with respect to the mark Cal-De-Ce. The trial court declined Antox’s plea for an interim injunction, however, on appeal the High Court reversed the ﬁndings of the trial judge. This Court, upon due consideration of the matter, took notice of two egregious errors said to have been committed by the High Court: a. First, as regards the scope and nature of the appeals before it and the limitations on the ( 2026:HHC:34118 ) powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order; and b. Secondly, the weakness in ratiocination as to the quality of Antox’s alleged user of the trademark on which the passing oﬀ action is founded. 22.With regards to (a), this Court held thus: “In such appeals, the appellate court will not interfere with the exercise of discretion of the court of the 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 the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions … the appellate court will not reassess the material and seek to reach a conclusion diﬀerent from the one reached by the court below … 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.” 23.This Court, while arriving at the above ﬁndings, relied on its earlier judgment in Printers (Mysore) v Pothan Joseph reported in (1960) SCC Online SC 62 where it was held thus: “[...] as has been observed by Viscount Simon LC in Charles Osenton & Co v Johnston – the law as to reversal by a court of appeal of an order made by a judge below in the exercise of his/her discretion is well established, and any diﬃculty that arises is due only to the application of well-settled principles in an individual case.” 24.It is pertinent to note that in Printers (supra) this Court had held that ignoring relevant facts is also a ground for interfering with the discretion exercised by the trial court. Furthermore, Viscount Simon LC in Charles Osenton & Co v Johnston reported in 1942 A.C. 130, after stating the above, went on to quote Lord Wright’s decision in Evans v. Bartlam reported in 1937 A.C. 473: “It is clear that the court of appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisﬁed that he was wrong. But the ( 2026:HHC:34118 ) court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the court of appeal cannot review his order unless he is shown to have 14 applied a wrong principle. The court must, if necessary, examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order.” 25.In Evans (supra) case, Lord Wright made it clear that while adjudicating upon the discretion exercised by the trial court, the appellate court is obliged to consider the case put forward by the appellant in favour of its argument that the trial court exercised its discretion arbitrarily or incorrectly in the circumstances. 26.What ﬂows from a plain reading of the decisions in Evans (supra) and Charles Osenton (supra) is that an appellate court, even while deciding an appeal against a discretionary order granting an interim injunction, has to: a. Examine whether the discretion has been properly exercised, i.e. examine whether the discretion exercised is not arbitrary, capricious or contrary to the principles of law; and b. In addition to the above, an appellate court may in a given case have to adjudicate on facts even in such discretionary orders. 27.The principles of law explained by this Court in Wander’s (supra) have been reiterated in a number of subsequent decisions of this Court. However, over a period of time the test laid down by this Court as regards the scope of interference has been made more stringent. The emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the ﬁnal adjudication of the suit. 28.In Neon Laboratories Ltd. v. Medical Technologies Ltd. reported in (2016) 2 SCC 672 this Court held that the Appellate Court should not ﬂimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse. Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. In other words, the Court took the view that to interfere against an order granting or declining to grant a ( 2026:HHC:34118 ) temporary injunction, perversity has to be demonstrated in the ﬁnding of the trial court. 29.In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan reported in (2013) 9 SCC 221 this Court emphasised on the principles laid down in Wander (supra) and observed that while the view taken by the appellate court may be an equally possible view, the mere possibility of taking such a view must not form the basis for setting aside the decision arrived at by the trial court in exercise of its discretion under Order 39 of the CPC. The basis for substituting the view of the trial court should be malaﬁdes, capriciousness, arbitrariness or perversity in the order of the trial court. The relevant observations are extracted below: “20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiﬀs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a diﬀerent conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the 16 view of the trial court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd.” (Emphasis supplied) 30.This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries Ltd. reported in (2023) 1 SCC 634 observed that the hierarchy of the trial court and the appellate court exists so that the trial court exercises its discretion ( 2026:HHC:34118 ) upon the settled principles of law. An appellate court, after the ﬁndings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. It further observed that if the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts. 31.This Court in Monsanto Technology LLC v. Nuziveedu Seeds Ltd. reported in (2019) 3 SCC 381, observed that the appellate court should not usurp the jurisdiction of the Single Judge to decide as to whether the tests of prima facie case, balance of convenience and irreparable injury are made out in the case or not. 32.The appellate court in an appeal from an interlocutory order granting or declining to grant interim injunction is only required to adjudicate the validity of such order applying the well settled principles governing the scope of jurisdiction of appellate court under Order 43 of the CPC which have been reiterated in various other decisions of this Court. The appellate court should 17 not assume unlimited jurisdiction and should guide its powers within the contours laid down in the Wander (supra) case.” (Self emphasis supplied) 17. In the present case, the plaintiﬀ has taken a strange plea, in the replication, that he has raised the construction, with the consent of the other co-sharers. When, a person is seeking the equitable relief, he must approach the Court with clean hands. The plaintiﬀ has not pleaded this material fact in the plaint. When, a person himself raised the construction over the joint land, then, he ( 2026:HHC:34118 ) has no locus to seek the injunction, against the co-sharer from raising the construction. 18. Moreover, it is not the case of the plaintiﬀ that the defendants are going to raise construction, over the area more than their shares. The learned First Appellate Court, while partly allowing the appeal, preferred by the plaintiﬀ has not bothered to record the ﬁndings that the order passed by the learned trial Court, suﬀers from perversity and it has also not been recorded, as to how, the learned trial Court has failed to exercise the jurisdiction, vested in it, while, dismissing the application under Order 39, Rules 1 and 2 CPC. Merely, on asking of the plaintiﬀ, a co-sharer cannot be injucted nor, the co-sharer can be directed to maintain status quo, even qua the passage. 19. The term ‘perverse’ has also been explained by the Hon’ble Supreme Court in case titled as Ramakant Ambalal Choksi versus Harish Ambalal Choksi and others, 2024 INSC 913. Relevant paragraphs 35 & 36, of the said judgment, are reproduced, as under:- “35.Any order made in conscious violation of pleading and law is a perverse order. In Moﬀett v. Gough reported in (1878) 1 LR 1r 331, the Court observed that a perverse verdict may probably be deﬁned as one that is not only against the weight of evidence but is altogether against the evidence. In ( 2026:HHC:34118 ) Godfrey v. Godfrey reported in 106 NW 814, the Court deﬁned “perverse” as “turned the wrong way”; not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc. 36.The expression "perverse" has been deﬁned by various dictionaries in the following manner: a. Oxford Advanced Learner's Dictionary of Current English, 6th Ed. Perverse-Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. b. Longman Dictionary of Contemporary English - International Edition Perverse - Deliberately departing from what is normal and reasonable. c. The New Oxford Dictionary of English - 1998 Edition Perverse - Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. d. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) Perverse - Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. e. Stroud's Judicial Dictionary of Words & Phrases, 4th Ed. Perverse - A perverse verdict may probably be deﬁned as one that is not only against the weight of evidence but is altogether against the evidence.” 20. In the absence of any ﬁndings, qua the fact that the learned trial Court has exercised the jurisdiction, vested in it wrongly, while, dismissing the application, there was no occasion for the learned First Appellate Court to allow the appeal, preferred by the plaintiﬀ. 21. Moreover, it is for the plaintiﬀ to establish the three ingredients, i.e., existence of prima facie case, balance of convenience, irreparable loss and injury. ( 2026:HHC:34118 ) Moreover, the act alleged against the defendants is not pleaded to be detrimental to the interest of the plaintiﬀ. 22. If the facts and circumstances of the present case are seen, in light of the decision of Co-ordinate Bench of this Court, in case titled as Ashok Kapoor versus Murtu Devi, reported in 2016 (1) Shimla Law Cases 207, then, there was no occasion for the learned First Appellate Court, to partly allow the appeal. Relevant paragraph 46 of the said judgment, is produced, as under:- “46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:- i) 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. ii) Mere making of construction or improvement of, in, the common property does not amount to ouster. (iii) 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 diminution of the value and utility of the property. ( 2026:HHC:34118 ) (iv) 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 act which is detrimental to his interest. (v) before an injunction is issued, the plaintiﬀ has to establish that he would sustain, by the act he complains of some injury which materially would aﬀect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with. (vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.” 23. Considering the facts and circumstances of the present case, in light of the decision of Hon’ble Supreme Court, as well as, the Co-ordinate Bench of this Court, in the absence of any ﬁndings, qua perversity, so recorded, by the learned First Appellate Court, the learned First Appellate Court was legally at fault to interfere with the well reasoned ﬁndings, recorded by the learned trial Court. 24. Consequently, the present appeal is allowed and the order passed by the learned First Appellate Court, is set-aside and the order passed by the learned trial Court, ( 2026:HHC:34118 ) by virtue of which, the application under Order 39, Rules 1 and 2 CPC, has been dismissed, is ordered to be restored. 25. Pending application(s), if any, also stand disposed of. 26. Any of the observations made hereinabove shall not be taken as an expression of opinion on the merits of the case, as these observations are conﬁned only to the disposal of the present petition. (Virender Singh) August 11, 2026 Judge (subhash sharma)

JAGDEV CHAND v. GURBAKSH SINGH AND ANOTHER

Judgment text