1( 2026:HHC:6748 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.99 of 2024 Reserved on 06.03.2026 Date of Decision : 11 .03.2026 Kanta Devi Petitioner Versus Kiran Bala Respondent Coram: The Hon’ble Mr. Justice Romesh Verma. Judge. Whether approved for reporting?1 For the petitioner : Mr. Kamlesh Shandil, Advocate. For the respondent : Mr. R.P. Singh, Advocate. Romesh Verma, Judge The present petition arises out of the order as passed by the learned Senior Civil Judge, Dharamshala, District Kangra, HP, dated 29.11.2023, whereby the application filed by the petitioner under Order 23 Rule 1(4) (b) of C.P.C has been ordered to dismissed. 2. The brief facts of the case are that the present respondent has filed a suit in the Court of learned Sr. Civil Judge , Dharamshala, District Kangra, HP,for declaration to the effect that she is owner in possession of land entered in Khata No. 513, Khatauni Nos 875 to 877, Khasra Nos 1 Whether reporters of Local Papers may be allowed to see the judgment? 2( 2026:HHC:6748 ) 1566,1640,1565,1567,1568 measuring 0-10-30 hects to the extent of ½ share of Mohal & Mauza Charri, Tehsil Shahpur, District Kangra, H.P. The revenue entries in the name of the defendant are illegal, null and void, and are mere paper entries and the same are liable to be corrected with a consequential relief of permanent prohibitory injunction. The suit has been filed by the respondent against the present petitioner. 3. The defendant/petitioner filed written statement to the suit as preferred by the present respondent and the preliminary objections with regard to the maintainability, cause of action, estoppel, limitation ,non joinder of necessary parties etc. were taken. On merits, it was averred in the written statement that the revenue entries qua the suit land have correctly been made in favour of the defendant vide mutation No. 1526 which has been attested and sanctioned by the Assistant Collector 2nd Grade, Shahpur, District Kangra, H.P. on 20.09.2013, on the basis of the registered Will dated 04.06.1993 executed by the husband of the defendant. It has been further elaborated that the matter in dispute pertaining to the suit land had already been challenged by the mother of the plaintiff and 3( 2026:HHC:6748 ) plaintiff herself by filing a Civil Suit No. 30/2001 titled as Smt. Sarvmangala Devi and another vs. Smt. Kanta Devi against the defendant and the same has been decided by the learned Sub Judge 1st Class (II),Dharamshala, District Kangra, HP, on 31.03.2003 by decreeing the suit of the plaintiff. However, the defendant had challenged the impugned decree by filing a Civil Appeal in the Court of learned Additional District Judge(1), Kangra at Dharamshala,who vide its order dated 27.12.2006 had allowed the appeal of the defendant and the case was remanded back to the Court of Sub Judge 1st Class (II), Dharamshala for deciding it afresh in accordance with law. After the remand of the case , the learned Sub Judge 1st Class (II), Dharamshala again recorded the evidence of both the parties and at the time of rebuttal evidence, the counsel for the plaintiff had withdrawn the earlier Civil Suit and in view of the statement of the counsel, the suit was dismissed as withdrawn. Therefore, the present petitioner /defendant prayed for the dismissal of the suit as preferred by the plaintiff/respondent. 4. In the reply, the categorical stand of the petitioner/defendant is that the earlier suit which was 4( 2026:HHC:6748 ) preferred by the plaintiff and her mother at the time of rebuttal evidence was withdrawn on 15.01.2008 and the said withdrawal was unconditional. 5. After the completion of the pleadings, when matter was fixed for leading of the evidence of the plaintiff, the present petitioner filed an application under Order 23 Rule 1 (4) C.P.C with the prayer that since the withdrawal of the earlier suit bearing No.30/2001, titled as Smt. Sarvmangala Devi and another vs. Smt. Kanta Devi dated 15.01.2008 was unconditional, therefore, now she is precluded from instituting the present suit in respect of subject matter, therefore, the suit as preferred by the plaintiff is required to be dismissed. 6. Reply to the said application was filed by the plaintiff/respondent by raising various objections and it was prayed that the application being devoid of any merit deserved to be rejected. It was averred in the reply that the application has been filed by the defendant/applicant after a long delay in order to prolong the litigation. 7. It was specifically submitted that the objection with respect to the previous suit in the written statement or at the time of the the framing of the issues was never raised 5( 2026:HHC:6748 ) by the defendant. It was further submitted that even the issue regarding maintainability of the suit was never sought to be treated as preliminary issue under Order 14 Rule 2 C.P.C and the present suit pertains to the different cause of action. Further it was submitted that once the matter has been fixed for leading evidence of the respective parties, the Court is bound to pronounce the judgment on all the issues as per the mandate of the Order 20 Rule 5 C.P.C 8. After hearing the respective parties, learned Sr. Civil Judge, Dharamshala, District Kangra, HP, dismissed the application as preferred by the defendant/petitioner. 9. I have heard Ms. Kamlesh Shandil, Advocate for the petitioner and Mr. R.P. Singh, Advocate, for the respondent at length. 10. From the perusal of the case file, it reveals that the plaintiff has filed suit for declaration and Permanent Prohibitory Injunction against the present petitioner/defendant. The revenue entries in the name of defendant have been sought to be declared as illegal, null and void and decree for injunction has been sought from the learned trial Court. The perusal of the case file further reveals that prior to the institution of the suit, one suit was 6( 2026:HHC:6748 ) filed by the present plaintiff/respondent Kiran Bala alongwith her mother against the present defendant. When the said case was fixed for rebuttal evidence, the counsel for the plaintiff on 15.01.2008 sought permission from the Court to withdraw the Civil Suit and in view of the statement as given by the learned counsel for the plaintiff, suit was ordered to be dismissed as withdrawn. 11. In the present case, the written statement has been filed by the present petitioner and objections with regard to the maintainability of suit under Order 2 Rule 2 C.P.C and Section 11 have been specifically taken in its written statement . The pleadings show that the specific ground with respect to Order 23 Rule 1 (4) C.PC has not been taken by the defendant. The pleadings of the parties are complete and the issues were framed by the learned trial Court on 23.03.2019 i. e about 7 years ago. The Court below on the basis of the pleadings has framed issues of resjudicata and Order 2 Rule 2 C.PC. It seems that at the time of framing of the issues, the issue with respect to Order 23 of C.P.C was not agitated by the present petitioner/defendant. It has also not been demonstrated by the learned counsel for the petitioner that whether 7( 2026:HHC:6748 ) defendant has filed any application for treating the suit to be not maintainable as preliminary issue before the learned trial Court. The applicant/petitioner has failed to establish that why the said plea under the relevant provisions of law i.e Order 23 of C.P.C has not been taken either in the pleadings or any application for treating the issue on maintainability as preliminary issue was filed by the defendant. The case file reveals that the suit was filed in the year 2017 and even after elapse of nine years, the evidence of the parties has not commenced as yet. The application filed by the defendant does not disclose due diligence, and the plea of the defendant/petitioner is not sustainable in the eyes of law.The present application has been filed at the time of leading of the evidence, therefore, no error or infirmity can be found in the impugned order as passed by the learned trial Court who after appreciating the record has rightly rejected the application filed by the defendant/petitioner. The Hon’ble Supreme Court while dealing with the provisions of Article 227 of Constitution of India in case titled as Garment Craft versus Prakash Chand Goel 2022 (4) S.C.C 181 has held as under: 8( 2026:HHC:6748 ) “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.1 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.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 9( 2026:HHC:6748 ) 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 perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” 12. The learned trial Court has framed the issues on the basis of the pleadings of the parties, therefore, it is incumbent upon the parties to lead evidence and to prove their case by leading independent witnesses in support of their contentions including maintainability of the suit. Now, at this stage, plea of the petitioner/defendant cannot be accepted and the defendant has got the right to prove her case on the basis of pleadings and material placed on record. Resultantly, this Court does not find any error or ambiguity in the impugned order dated 29.11.2023, therefore, the present petition being devoid of any merits, is ordered to be dismissed and is accordingly, dismissed. 10( 2026:HHC:6748 ) 13. This Court has not expressed anything on the merits of the case. The Trial Court shall proceed uninfluenced by any observation made herein above while deciding the Civil Suit. Pending application(s), if any, also stands disposed of. (Romesh Verma), Judge 11.03.2026 (veena)