IN THE HIGH COURT OF HIMACHAL PRADESH

SHIMLA

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Civil Revision No. 52 of 2016

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Decided on : 9.12.2016

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Tek Chand and another ..Petitioners.

Versus

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Karam Singh & others. Respondents.

Coram:
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The Honble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting?1 Yes.

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For the Petitioners: Mr. Devender K Sharma, Advocate.

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For the Respondents: Mr. G.R Palsara, Advocate.

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Sureshwar Thakur, J (oral)

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The instant petition stands directed against the

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impugned order recorded by the learned executing Court upon a

petition constituted therebefore under Order 21 Rule 32 of CPC by

the DHs/petitioners herein (for short the plaintiffs) whereby the

aforesaid petition stood dismissed by it.

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Whether reporters of the local papers may be allowed to see the judgment?

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2. The learned trial Court pronounced qua the

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petitioners/plaintiffs (for short the plaintiffs) an apposite decree of

permanent prohibitory injunction whereupon the defendants stood

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restrained from causing any obstruction upon a path existing on the

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suit land depicted in Tatima Ex.PW-1/A.

3. During the pendency of the suit before the learned trial

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Court the defendants purportedly caused obstruction upon the path

existing on the aforesaid suit land whereupon the plaintiffs made

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an oral request before the learned trial Court qua a relief of
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mandatory injunction standing pronounced by it for directing the

defendants to remove the obstruction raised by them upon the path

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existing upon the suit land. The learned trial Court declined the
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aforesaid relief to the plaintiffs. The declining of the aforesaid relief

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to the plaintiffs by the learned trial Court is not ridden with any

inherent procedural fallacy given the plaintiffs without begetting

apposite amendments in the plaint by instituting therebefore an

application under Order 6 Rule 17 CPC theirs merely making

therebefore an oral submission for the according of the apposite

relief to them, oral relief whereof naturally warranted its standing

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declined as tenably declined by the learned trial Court. Also

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evidence, if any, in consonance therewith for hence a decree of

mandatory injunction standing pronounced upon the defendants

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was wholly discardable it naturally being beyond pleadings.

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4. The defendants omitted to assail the decree of

permanent prohibitory injunction pronounced vis--vis the

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plaintiffs by theirs carrying an appeal therefrom before the learned

first Appellate Court. Consequently the decree of permanent

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prohibitory injunction pronounced by the learned trial Court
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attained finality besides conclusivity.

5. Be that as it may despite the defendants not assailing

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the decree of the learned trial Court whereby they stood injuncted
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against causing any obstruction upon the path borne on tatima

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Ex.PW-1/A reflected in the operative portion of the judgment and

decree pronounced by the learned trial Court, the plaintiffs though

carried an appeal therefrom before the learned first Appellate Court

whereby they assailed the rendition recorded by the learned trial

Court whereby relief of mandatory injunction stood refused vis--

vis them yet therebefore also they orally submitted qua the

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defendants during the pendency of the suit before the learned trial

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Court causing obstruction upon the path comprised in the aforesaid

Khasra Number whereupon they had staked a claim qua an an

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easementary right of its user for facilitating theirs accessing their

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house besides made an oral prayer therebefore qua an apposite

decree of mandatory injunction standing pronounced against the

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defendants. The aforesaid oral prayer made by the plaintiffs before

the learned trial Court besides before the learned appellate Court
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stood aptly declined to them for theirs before either of the Courts
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omitting to beget an apposite amendment in the plaint by moving

an appropriate application constituted under Order 6 Rule 17 CPC.

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Also the plaintiffs did not concert to assail the relevant findings qua
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the facet aforesaid embodied in paragraph 22 of the judgment of the

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First appellate Court, paragraph whereof stands extracted

hereinafter by theirs preferring an appeal therefrom before this

Court. In sequel thereto finality besides conclusivity stands

imputed to the findings recorded by the learned first Appellate

Court qua the relevant factum probandum of the defendants not

warranting vis--vis them any rendition of any decree of mandatory

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injunction arising from theirs during the pendency of the suit before

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the learned trial Court or during the pendency of the suit before the

learned First Appellate Court raising obstructions on the path by

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stacking material thereupon whereby the user of path by the

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plaintiffs depicted in the decree of permanent prohibitory

injunction besides embodied in tatima Ex.PW-1/A stood fully

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forestalled besides thwarted.

22. Keeping in view the aforesaid evidence led by the plaintiffs,

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this Court is of the opinion that the aforesaid evidence led by the
plaintiff failed to prove on record that during the pendency of the
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suit the defendants obstructed the said path with cut stones and
wood etc. This evidence further reveals that the matter in
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controversy with the obstruction of the part and granting of

mandatory injunction in favour of the plaintiffs was not within the
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knowledge of the parties. Since, the matter was not in the knowledge
of the parties especially the defendants, as such the defendants was
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having no opportunity to lead evidence in respect of it and in these

circumstances in doing justice to one party, the court can not do
injustice to another party and the trial court after dealing the matter
elaborately and discussing the statements of the parties, rightly did
not grant the relief of mandatory injunction in favour of the
plaintiffs, such, being the situation, I have no hesitation to conclude
that the plaintiffs have in fact failed to prove on record by leading
cogent and satisfactory evidence that the defendants during the

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pendency of the suit obstructed the use of said party and in the

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absence of any specific pleadings and specific evidence the plaintiffs

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were not entitled for the relief of mandatory injunction and hence,
the judgment and decree under challenge are legal and valid and the

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same do not require any modification or interference at the hands of
this court. As such, this point is decided against the plaintiffs.

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6. Hereat is to be adjudged the compatible worth qua the
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conclusivity of the findings recorded by the learned First appellate
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Court qua a decree of mandatory injunction being un-renderable

against the defendants vis--vis the conclusivity of the apposite

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verdict rendered by the learned trial Court besides affirmed by the

learned First appellate Court arising from the factum of the

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defendants not carrying an appeal thereagainst before the learned

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first Appellate Court wherefrom an inference stands engendered

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qua the defendants acquiescing to the findings besides qua the

conclusivity of the decree pronounced upon them whereupon they

stood restrained from obstructing the path depicted in tatima Ex.

PW-1/A.

7. For pronouncing an efficacious decision upon the

aforesaid facet imperatively when obviously the bar of res judicata

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besets the plaintiffs against theirs instituting a fresh suit against the

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defendants vis--vis the aforesaid relief preponderantly when it

accrued earlier whereat it stood un-ventilated by the plaintiffs

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significantly when they omitted to avail the apposite statutory

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mechanism whereupon they stand forestalled besides interdicted to

in a freshly constituted suit canvass a relief for its removal by the

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defendants comprised in the latters standing mandatorily injuncted

to remove it whereupon the act of the defendants comprised in

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theirs obstructing the path decreed for user by the plaintiffs would
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hence stand rendered un-redeemed, ought to not be necessarily

borne in mind. Given the factum aforesaid qua a statutory bar of

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res judicata forbidding the plaintiffs to institute a fresh suit for

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redeeming the prohibited act of the defendants comprised in theirs

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obstructing the path embodied in the apposite tatima also when for

reasons aforesaid the defendants acquiesce to the conclusivity of the

decree of permanent prohibitory injunction pronounced upon them

it is deemed both just and befitting, significantly also for facilitating

the plaintiffs to reap the benefit of a conclusively recorded decree of

permanent prohibitory injunction dehors any omission on their part

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to beget an apposite amendment in the plaint seeking embodying

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therein a relief of mandatory injunction, to record a finding qua the

plaintiffs qua their omissions aforesaid not standing in the way of

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an efficacious affirmative rendition standing pronounced by the

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learned Executing Court concerned upon an apposite petition

constituted therebefore for execution of the aforesaid decree of

permanent
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prohibitory injunction pronounced against the

defendants. In case finality is attached to the findings occurring in

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paragraph 22 of the judgment of the learned first Appellate Court it
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would frustrate the working of the binding decree pronounced

upon the defendants qua the user by the plaintiffs of a path existing
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on the suit land. Throughout since the rendition of a conclusively

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rendered decree of permanent prohibitory injunction pronounced

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against the defendants upto its efficacious affirmative execution

standing ordered by the learned Executing Court comprised in its

directing qua appropriate consummatory coercive steps standing

taken, its mandate hold full sway besides both the plaintiffs and the

defendants are bound to revere its mandate. Even if assumingly no

efficacious evidence nor any evidence of cogent worth may stand

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adduced qua the defendants raising any obstruction upon the suit

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land yet the decree of permanent prohibitory injunction dehors any

obstructive act done by the defendants during the pendency of the

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suit before the learned trial Court or during the pendency of the

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appeal before the first appellate Court also dehors no scribed relief

in consonance therewith standings prayed for by the plaintiffs

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would not estop this court to permit the executing court to carry the

mandate of the conclusively recorded decree of permanent

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prohibitory injunction pronounced qua the plaintiffs, conspicuously
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when thereupon the mandate of the conclusively recorded decree

pronounced qua the suit land would beget consummation besides

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would obviate its frustration. For facilitating its consummation,

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though the learned executing Court stood enjoined to pronounce an

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appropriate order, contrarily it by relegating the impact of the

aforesaid germane factum probandum comprised in the enforceable

executable conclusive decree, has inaptly dismissed the execution

petition.

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In view of the above there is merit in this petition and

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the same is allowed. The impugned order stands quashed and set

aside. The Execution Petition be decided afresh within three

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months by the learned Executing Court. All pending applications

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stand disposed of accordingly. Records be sent back.

rt (Sureshwar Thakur),
Judge.

December 9,2016
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(priti)
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