Parveen Kumar vs Kamal Singh And Ors on 21 August, 2025

Himachal Pradesh High Court

Parveen Kumar vs Kamal Singh And Ors on 21 August, 2025

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.438/2025
Date of Decision: 21st August, 2025.

      Parveen Kumar                                        .....Petitioner
                                           Versus




                                                                                       .

     Kamal Singh and Ors.                                  ....Respondents
     Coram

The Hon’ble Mr. Justice Bipin Chander Negi, Judge.

Whether approved for reporting?1

For the Petitioner: Mr. Ajay Kumar Sood, Sr. Advocate with
Mr. Rohit, Advocate.

For the Respondents: Ms. Sunita Sharma, Sr. Advocate with

Mr. Dhananjay Sharma, Advocate, for
respondents No.4 and 5.

Bipin Chander Negi, Judge (oral).

By way of the present petition, a challenge has

been laid to the impugned order dated 10.06.2025, passed

by the learned Addl. District Judge-II, Kangra at

Dharamshala, District Kangra, HP in CMA No.07-

D/XII/2024, whereby an order rejecting an application

filed under Order 39 Rules 1 and 2 CPC by the present

petitioner, passed by the learned trial Court, has been

upheld.

2. Heard counsel for the petitioner and perused the

pleadings and documents appended along with the present

petition as well as the impugned order.

3. From a perusal of the judgment, it is clearly evident

that both the Courts below have rejected the grant of an

interim relief, as prayed for in an application filed under

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes

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Order 39 Rules 1 and 2 CPC by the present petitioner on

account of balance of convenience lying in favour of the

present respondents. The Courts have held that

.

respondent No.6 has taken a loan for raising of the project

and restraining him at this stage would cause heavy loss to

him. Other than the aforesaid, the mushroom unit has

already started operation. The transformer installed is in

larger public interest. The laying of the wires erecting of

electricity poles is stated to have been completed prior to

the institution of the suit in the case at hand.

4. Other than the aforesaid, the suit (Annexure P1), in

the case at hand, has been filed seeking the relief of a

mandatory injunction qua removal of the electricity

transformer, electricity overhead lines laid in the case at

hand. Entitlement of the said relief would depend on the

conclusion of the trial.

5. The power of the First Appellate Court to interfere

in an order passed under Order 39 Rules 1 and 2 CPC is

limited. The parameters for interference in this respect

has been laid by the Supreme Court in 1990 (Supp) SCC

727, titled Wander Ltd. & Anr. Vs. Antox India Pvt.

Ltd., decided on 26.04.1990, the relevant extract is

reproduced as under:-

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“……14. The appeals before the Division Bench were
against the exercise of discretion by the Single Judge. In
such appeals, the appellate Court will not interfere with the
exercise of discretion of the Court of 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 had ignored the
settled principles of law regulating grant or refusal of

interlocutory injunctions. An appeal against exercise of
discretion is said to be an appeal on principle. Appellate
Court will not reasses the material and seek to reach a
conclusion different from the one reasonably possible on

the material. The appellate Court would normally not with
justified in interfering with the exercise of discretion under
appeal solely on the ground that if it had considered the
matter at the trial stage it would have come to a contrary
conclusion. 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. After referring to these principles
Gajendragadker, J.in Printers (Mysore) Private Ltd. Vs.
Pothan Joseph. (SCR 721). ….These principles are well

established, but as has been observed by Viscount Simon in

Charles Osenton & Co. v. Jhanaton ‘…. the law as to the
reversal by a court of appeal of an order made by a judge
below in the exercise of his discretion is well established,
and any difficulty that arises is due only to the application
of well settled principles in an individual case.”

6. Besides the aforesaid, the present petition has been

preferred under Article 227 of the Constitution of India.

This Court has a restricted and limited jurisdiction to

interfere under the correctional jurisdiction vested in it in

terms of Article 227 of the Constitution of India, except to

set right a grave dereliction of duty or flagrant abuse or

violation of fundamental principle of law or justice,

miscarriage of justice, un-reasonable conclusion and

perversity.

7. Moreover, in a supervisory jurisdiction reviewing or

re-weighing evidence, substituting conclusions, correcting

every error of fact or even a legal flaw when the final

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finding is justified or can be supported is not permissible.

(See Sadhana Lodh vs. National Insurance Co. Ltd. &

another, (2003)3 SCC 524, and Garment Craft vs.

.

Prakash Chand Goel, (2022)4 SCC 181).

8. In the case at hand, for the reasons stated here-in-

above, I am of the considered view that no ground is made

out in the present petition for invoking the jurisdiction of

this Court under Article 227 of the Constitution of India.

9. In view of above terms, I see no reason to interfere

in the impugned order, therefore, the present petition is

dismissed. Pending miscellaneous application(s), if any,

shall also stand disposed of.

(Bipin Chander Negi)
Judge

21st August, 2025
(Gaurav Rawat)

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