Himachal Pradesh High Court
Premi Devi (Since Deceased) Through Lrs vs Krishan Chand And Others on 24 January, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.37/2025.
Date of Decision: 24th January, 2025.
Premi Devi (since deceased) through LRs .....Petitioners
Versus
Krishan Chand and Others ....Respondents
Coram
The Hon’ble Mr. Justice Bipin Chander Negi, Vacation Judge.
Whether approved for reporting?1
For the Petitioners: Mr. Sanjay Dutt Vasudeva, Advocate.
For the Respondents: Nemo.
Bipin Chander Negi, Vacation Judge (oral).
The present petitioners were plaintiffs before the trial
Court. Parties before this trial Court shall be referred to as they
were addressed in the trial Court. Heard counsel for the
petitioners, perused the pleadings and the impugned order
appended along with the present petition.
2. The plaintiffs are aggrieved by the impugned order
dated 02.08.2024 passed by the learned Additional District
Judge, Ghumarwin, District Bilaspur, H.P., whereby appeal
preferred against the order dated 27.06.2022 passed by the
learned Senior Civil Judge, Ghumarwin, has been allowed.
3. The plaintiffs, in the case at hand, are recorded as co-
owners in joint possession of the suit land. The defendants are
alleged to be strangers to the suit land. As per the plaintiffs, the
defendants are trying to create a permanent path through the
suit land.
4. In response to the aforesaid, the defendants claim that
they are not strangers to the suit land, rather a path passes
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Whether reporters of Local Papers may be allowed to see the judgment? Yes
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through the suit land which is used by the defendants and other
inhabitants of the area. It is further averred by the defendants
that the said passage has been blocked by the plaintiffs. On
blocking of the aforesaid passage, defendant No.2-Baldev
Chand had filed a complaint before the Gram Panchayat, Ladda.
On the complaint, so filed, the passage to the suit land was got
opened and obstruction was got removed.
5. In the aforesaid facts and attending circumstances, the
trial Court had allowed the application filed under Order XXXIX
Rules 1 & 2 CPC by the plaintiffs, thereby restraining the
defendants from the use of passage upon the suit land. The
First Appellate Court reversed the aforesaid order, so passed,
by taking into account the material ignored by the trial Court.
6. As per the First Appellate Court, an application under
Section 151 CPC was filed by the plaintiffs seeking Police
assistance before the trial Court. The said application was
stated to have been disposed of by the trial Court on
05.05.2022 by directing the SHO to implement the order. It is
thereupon, the SHO gave a report. As per the report on Khasra
No.141/65 i.e. a part of the suit, there existed a passage. The
same was based on the report of the Patwari (Revenue Official)
concerned.
7. The statement of the plaintiff is also stated to have
been recorded at that time. The plaintiff had clearly stated that
there is a “kucha passage” through her land. From the
aforesaid, it is evident that there exists a kucha passage
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through suit land. Other than the aforesaid, a compromise was
executed on 24.06.2021, prior to the filing of the suit, which
was placed on record by the plaintiffs. As per the said
compromise, there exist 3′-0” “kucha passage” from Solli Khad
to Pater Mod Dharwar Road. Certificate of the Pradhan was also
placed on record. As per the same, there exist a passage to the
land of the plaintiffs. Besides the aforesaid, there is a spot
report dated 24.03.2022 on record, which prima facie shows
existence of the path. From the aforesaid, it is evident that
there is material on record to show that there is kucha passage
to the suit.
8. It is a well-settled position of law that an appeal against
exercise of discretion is an appeal on principle. The Appellate
Court therein will only interfere with a discretion if it is shown to
have been exercised arbitrarily, capriciously, perversely or
where the Court had ignored the settled principles of law
regulating grant of interlocutory injunction. The Appellate Court
will not re-assess the material and would not be 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. In this
respect, reference can be made to judgment reported 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.”
9. Interference by the First Appellate Court on the ground
of perversity, as relevant material was ignored by the trial Court
while passing the impugned order, cannot be faulted with in
terms of the parameters laid down by the Apex Court, discussed
hereinabove. The present petition has been preferred under
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Article 227 of the Constitution of India. The scope of jurisdiction
of High Court under Article 227 of the Constitution has been
expounded by the Hon’ble Supreme Court as under::
& another, (2003)3 SCC 524, it has been held as under:-
“7. The supervisory jurisdiction conferred on the High
Courts under Article 227 of the Constitution is confined
only to see whether an inferior court or Tribunal has
proceeded within its parameters and not to correct an
error apparent on the face of the record, much less of
an error of law. In exercising the supervisory power
under Article 227 of the Constitution, the High Court
does not act as an Appellate Court or the Tribunal. It is
also not permissible to a High Court on a petition filed
under Article 227 of the Constitution to review or re-
weigh the evidence upon which the inferior court or
Tribunal purports to have passed the order or to
correct errors of law in the decision.”
(iii) In Garment Craft vs. Prakash Chand Goel, (2022)4
SCC 181, it has been held as under:-
“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 conclusion, for its own that of decision
the on facts inferior court and or tribunal. The
jurisdiction exercised is in the nature of correctional
jurisdiction to set right grave dereliction of duty or
flagrant abuse, Celina Coelho Pereira (Ms) and Others
v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1
SCC 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.”
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10. Thus, from the above stated exposition of law, it is clear
that 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. On the other hand in
the supervisory jurisdiction reviewing or re-weighing evidence,
substituting conclusions, correcting every error of fact or even a
legal flaw when the final finding is justified or can be supported
is not permissible.
11. In the case at hand, for the reasons stated herein
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.
12. In view of above terms, I find no merit in the present
petition and the same is dismissed accordingly. Pending
miscellaneous application(s), if any, shall also stand disposed
of.
(Bipin Chander Negi)
Vacation Judge
24th January, 2025
(Gaurav Rawat)
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