1  2026:HHC:36558 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 75 of 2024 Decided on: 25.8.2026 Pradeep Kumar … Petitioner Versus Sant Ram …Respondent _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ___________________________________________________ For the Petitioner: Mr. Neeraj Gupta, Senior Advocate, assisted by Mr. Ajeet Pal Singh Jaswal and Mr. Sumit Sharma, Advocates. For the Respondents : Mr. Ajay Sharma, Senior Advocate, assisted by Mr. Tarun K. Brakta, Advocate. Virender Singh, Judge (oral) Petitioner Pradeep Kumar has filed the present petition, under Article 227 of the Constitution of India, against the order dated 30.1.2024, passed by the Court of learned Additional District Judge, Paonta Sahib, District Sirmour, H.P. (hereinafter referred to as ‘the First Appellate Court’), in CMA No. 2 of 2023. 2  2026:HHC:36558 2. By way of order dated 30.1.2024, the learned First Appellate Court has dismissed the appeal, filed by the petitioner, against the order dated 21.12.2022, passed by the Court of learned Senior Civil Judge, Paonta Sahib, District Sirmour, H.P. (hereinafter referred to as ‘the trial Court’) in Civil Misc. Application No. 83/6 of 2020, titled as, ‘Sant Ran Chauhan versus Pradeep Kumar’. 3. By way of order dated 21.12.2022, the learned trial Court has allowed the application, under Oder 39 Rules 1 and 2 CPC, filed by respondent Sant Ram, in Civil Suit, titled as, ‘Sant Ram Chauhan versus Pradeep Kumar’. 4. For the sake of convenience, parties to the lis are referred to, in the same manner, in which, they were referred to, by the learned trial Court. 5. Brief facts, as borne out from the documents, annexed with the petition, may be summed up, as under: Plaintiff Sant Ram Chauhan has filed the suit for permanent prohibitory injunction, restraining the 3  2026:HHC:36558 defendant from digging and raising any construction over the land, comprising in khata Khatauni No. 129 min/409, khasra No. 1725 min., measuring 1-1 bigha, situated in mauza Kando Cheyog, Tehsil Kamrau, District Sirmour, H.P. (hereinafter referred to as, ‘the suit land’). 5.1 According to the plaintiff, he was co-sharer in joint possession of the suit land, whereas, defendant is stranger and has no right, title and interest, in the suit land. The defendant is stated to be very influential person and in the first week of June, 2020, started raising construction over the suit land. However, with the timely intervention, defendant was stopped from digging/raising construction, over the suit land. 6. On the basis of above facts, the plaintiff has sought relief of permanent prohibitory injunction. 7. Alongwith the suit, the plaintiff has filed application under Order 39 Rules 1 and 2 CPC, restraining the defendant from digging/raising any construction and changing the nature of the suit land, in any manner, during the pendency of the lis. 4  2026:HHC:36558 8. When, put to notice, the suit has been contested by the defendant, by filing written statement, as well as, reply to the application, under Order 39 Rules 1 and 2 CPC. 8.1 In the written statement, defendant has taken preliminary objection that the plaintiff has concealed the material facts; he has got no cause of action to file the suit; he has no locus standi to file the suit; the suit is not maintainable; and he is estopped by his act and conduct to file the suit. 9. On merits, the suit has been contested on the ground that the suit land and the land of the defendant are adjoining to each other, as defendant is owner of Khasra No. 1715. The land of the defendant is on a higher terrain and the land of the plaintiff is on the lower terrain of the hilly slope. On account of rain, there used to be a constant erosion of the slope, which constantly caused a loss of land, therefore, the predecessors-in-interest of both the parties, to the lis, constructed kaccha danga, consisting of stone and mud masonry, but every year, the same used to get damaged 5  2026:HHC:36558 and was a constant point of bickering between the families. As such, in order to bring peace, the defendant in the year 2012, approached the Collector, Sirmour and got sanctioned an amount of Rs. 2,36,000/- from the State of H.P., through BDO, Paonta Sahib, for the construction of a pucca retaining wall and in the year 2012-13, a retaining wall/danga was constructed having more than 100 feet length and about 20 feet height on the boundary of the suit land and the land of Khara No. 1715. Thereafter, the demarcation was also got conducted, which has been accepted by both the parties to the lis. 9.1 It is the further case of the defendant that he has started raising construction over his own land, which is about 20 feet high from the retaining wall, but the plaintiff, under the garb of injunction order, has stopped him from raising construction, over his own land, bearing khasra No. 1715. 9.2 On the similar lines, the application, under Order 39 Rules 1 and 2, has also been contested. 6  2026:HHC:36558 10. The learned trial Court, after hearing the parties to the lis, has allowed the application, under Order 39 Rules 1 and 2 CPC, by passing a direction to restrain the defendant from causing any interference, over the suit property, till the suit is decided, on merit. 11. The said order has been assailed by the defendant by filing Civil Miscellaneous Appeal No. 2 of 2023, titled as, ‘Pradeep Kumar versus Sant Ram Chauhan’. The learned First Appellate Court, vide judgment dated 30.1.2024, has dismissed the appeal. 12. Feeling aggrieved from the said judgment, present petition, under Article 227 of the Constitution of India, has been filed, before this Court. 13. Heard. 14. Primary purpose of the relief, under Order 39 Rules 1 and 2 CPC, is to protect the subject matter of the lis, as it exists, at the time of inception of the lis. The relief, under Order 39 Rules 1 and 2 CPC is protective in nature to preserve the subject matter of the lis, till the rights of the parties are decided by the competent Court, after full fledged trial. In order to succeed in an 7  2026:HHC:36558 application under Order 39 Rules 1 and 2 CPC, the plaintiff has to establish three ingredients, i.e. prima- facie case, balance of convenience and irreparable loss of injury, which cannot be compensated, in terms of money. All the three ingredients must co-exist, before succeeding in an application, under Order 39 Rules 1 and 2 CPC. 15. In the present case, the learned trial Court has allowed the application and the stay order has been upheld by the learned First Appellate Court. 16. Now, the defendant is before this Court, under Article 227 of the Constitution of India, where scope of interference is very limited. 17. Hon'ble Supreme Court in "K. Valarmathi & Ors. Versus Kumaresan”, 2025 INSC 606" has elaborately discussed the scope of interference under Article 227 of the Constitution of India. Relevant para 9 of the judgment, is reproduced, as under: "9. Essence of the power under Article 227 being supervisory, it cannot be invoked to usurp the original jurisdiction of the court which it seeks to supervise. Nor can it be invoked to supplant a statutory legal remedy under the Civil Procedure 8  2026:HHC:36558 Code, 1908. For example, existence of appellate remedy under Section 96 of the Code operates as a near total bar to exercise of supervisory jurisdiction under Article 227." 18. In a recent decision in "Nandi Infrastructure Corridor Enterprises Ltd. & Anr. Versus B. Gurappa Naidu & Ors.”, 2026 INSC 434", the scope of interference has again been explained by the Hon'ble Supreme Court. Relevant paragraph 35 of the judgment, is reproduced, as under:- "35. In short, the principles laid down in the above matters is as follows: a) The power of superintendence under Article 227 is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals. b) 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. c) 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 9  2026:HHC:36558 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." 19. Being guided by the above decisions of the Hon’ble Supreme Court, this Court would proceed further to determine the fact whether the findings, so recorded by the learned trial Court, by allowing the application, under Order 39 Rules 1 and 2 CPC, as upheld by the learned First Appellate Court, are suffering from perversity, which warrants this Court to interfere with the findings recorded by the learned trial Court, that too, in the limited jurisdiction. 20. The plaintiff has sought the relief of injunction, qua khasra No. 1725, measuring 1-1 bighas, which, he has claimed to be in possession, as co-sharer. It is his specific case that the defendant is stranger to the suit land. 21. The contents of para-1 of the plaint have simply been denied by the defendant, for want of knowledge. 10  2026:HHC:36558 22. The learned trial Court, after considering the rival contentions of the parties, has restrained the defendant from interfering with the suit land, during the pendency of the lis. The defendant is not able to make out a case, in his favour, on the basis of written statement, raising any question about the ownership and possessory rights of the plaintiff. Therefore, the approach and conclusion of the learned trial Court, is not liable to be interfered with lightly. 23. In para-2 of the reply, filed by the defendant, he has specifically asserted that he is owner in possession of khasra No. 1715, and he has not asserted any right over the suit land, i.e. khasra No. 1725. Meaning thereby, whatsoever has been pleaded by the plaintiff, about the ownership in the capacity of a co-owner and possessory rights over the suit land, has not been disputed. 24. During the course of the argument, learned Senior Advocate, appearing for the defendant has raised the contention that in future, due to soil erosion, requirement may arise for construction of a retaining 11  2026:HHC:36558 wall and in that eventuality, the order passed by the learned trial Court, which has been upheld by the learned First Appellate Court, would create an impediment in seeking relief. The said apprehension of learned counsel for the defendant is unfounded, as, on the basis of uncertain things, which may or may not occur, this Court cannot interfere with, the order passed by the learned trial Court. 25. The learned trial Court has exercised its jurisdiction, on the basis of the stand, so taken by the parties, in their respective pleadings. As such, in the limited jurisdiction of this Court, those findings cannot be said to be suffering from perversity. 26. In view of above, there is no occasion for this Court to interfere with the findings recorded by the learned trial Court. Consequently, the petition is dismissed. The pending application(s), if any, are also disposed of. 27. Any of the observations, made herein above, shall not be taken, as an expression of opinion, on 12  2026:HHC:36558 the merits of the case, as these observations are confined, only to the disposal of the present petition. (Virender Singh) 25.8.2026 Judge Kalpana