Himachal Pradesh High Court
CMPMO/406/2023 on 12 October 2026
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. : 406 of 2023 Decided on : 12.10.2026 Gian Chand Chauhan & Anr. …Petitioners Versus Pramod Sood …Respondent
Coram
The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioners : Mr. Y.P. Sood, Advocate. For the respondent : Mr. Deepak Gupta, Senior Advocate, with Ms. Meera Devi, Advocate.
Virender Singh, Judge (Oral) Petitioners have filed the present petition under Article 227 of the Constitution of India, against the judgment dated 31.10.2022, passed by the Court of learned Additional District Judge (I) Shimla, District Shimla, H.P. (hereinafter referred to as ‘the first appellate Court’), in Civil Misc. Appeal No. 04S/14 of 2021, titled as “Gian Chand Chauhan & Ors. Versus Pramod Sood”.
2. By way of the judgment dated 31.10.2022, the learned first appellate Court has dismissed the appeal, under Order 43 Rule 1(r) CPC, preferred by the present 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
petitioners, against the order dated 16.10.2020, passed by the learned Senior Civil Judge, Court No. 1 Shimla, District Shimla, H.P. (hereinafter referred to as ‘the trial Court’), in CMA No. 1936 of 2018/15, in Civil Suit No. 1691 of 2018/15, titled as “Pramod Sood Versus Gian Chand Chauhan & Ors.”, by holding that the same is not maintainable.
3. Vide order dated 16.10.2020, the learned trial Court has allowed the application under Order 39 Rules 1 and 2 CPC, to the extent that respondents are restrained from raising any further construction next to the retaining wall, which is in between Fay Cottage and Kohlu shed. Further both the parties are directed to maintain status quo qua nature, possession and construction upon the properties known as Fay Cottage and Kohlu shed till the decision of the present case.
4. For the sake of convenience, parties to the present lis, are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.
5. Brief facts, leading to the filing of the present petition before this Court, as borne out from the documents annexed with the petition, may be summed up, as under: 5.1 PlaintiffPramod Sood has filed a suit for permanent perpetual prohibitory injunction restraining the defendants from interfering in possession of the plaintiff, causing any damage to the property of the plaintiff, or raising any construction or encroachment upon the property of plaintiff comprised in Khasra Nos. 199, 201, 202, 203, 204, measuring 323.99 Sq.mtrs., 198 min, 61 and 200 min (old Kh. No. 591 min), measuring 204.97 Sq.mtrs. situated at Up Mohal Krishna Nagar, Bazar Ward, Bada Shimla, either themselves or through their agents, labourers, family members etc. in any manner whatsoever. 5.2 The said suit has been filed on the ground that the predecessorininterest of the plaintiff, late Sh. Bakshi Ram purchased the property comprised in old Khasra No. 591 min, from the custodian department in an open auction and the sale certificate with respect to the same was executed in favour of the predecessorininterest of the plaintiff on 17.11.1955. The property was earlier known as Fay Cottage and now the same is known as Kesari Bhawan. The father of the plaintiff has expired and the property has been inherited by the legal representatives of the deceased and the plaintiff, being one of the coowners, in the same, has every right to file and maintain the present suit. 5.3 The property of the defendants adjoins the property of the plaintiff, which was earlier known as Kohlu shed and the same is now known by the name of Garden View. The said property was purchased was Sh. Pratap Singh and defendant No. 1 alleges to have purchased the same from Pratap Singh. The property, known as Kohlu shed/Garden View, was allegedly purchased in an open auction from the custodian department, in the year 1956 and after the purchase of the property, by the predecessor ininterest of the plaintiff. The order dated 05.01.1969 passed by the Settlement Officer, shows that the said sale in favour of Sh. Pratap Singh was cancelled by the Sales Department. The defendants, however, are in possession of the adjoining property i.e. Garden View/Kohlu shed on the southeast direction of the property of the plaintiff. 5.4 According to the plaintiff, his predecessorin interest was having litigation regarding the properties. The said litigation, has culminated by way of decision in RSA
No. 296 of 1967, dated 04.12.1969, in which, it has been held that the open ground/passage forms the natural dividing line between the property sold to the father of the plaintiff and that the said passage forms the part of the Fay Cottage/Kesari Bhawan. 5.5 On the basis of the above facts, the plaintiff has sought the relief, as claimed in the suit.
6. When put to notice, defendants contested the suit by filing the joint written statement, taking preliminary objections that the suit is not maintainable, plaintiff has not come to the Court with clean hands, the plaintiff has no cause of action, suit is bad for nonjoinder of necessary parties and the plaintiff is estopped to file the present suit on account of his own acts and conduct. 6.1 On merits, the factual position as mentioned in the plaint, has not been disputed by the defendants. However, according to them, the property purchased by them is old Khasra No. 591 and the sale certificate was issued on 17.11.1995. According to them, the property, known as Kohlu shed (now known as Garden Cottage), which is owned and possessed by defendant No. 1 is bounded and abutted on the North by Garden View
Building, on the South by Municipal passage, on the East by passage and on the West by Municipal Alley. 6.2 According to the defendants, initially the property known as evacuee property No. 95/2 below Cart Road, Shimla was purchased by one Sh. Partap Singh son of Sh. Narinder Singh, resident of Fingask Estate, Shimla from the custodian department on 30.08.1955. The sale certificate was also issued in his favour by District Rent & Managing Officer, Shimla. The area of the property purchased by Sh. Partap Singh in Khasra No. 591 was 580 Sq.Yds. After the death of Sh. Partap Singh, the property, known as Kohlu shed was inherited by his legal heirs. Defendant No. 1 purchased the entire property, known as Kohlu Shed, comprised in Khasra No. 591, from the legal heirs of Sh. Partap Singh, by two separate sale deeds, dated 13.10.1983, duly registered in the office of Sub Registrar, Shimla. The defendants have denied that the sale made in favour of Sh. Partap Singh was cancelled on 05.01.1969. After the purchase of the property, revenue entries were also entered in the name of Partap Singh and he remained owner in possession of the property purchased by him. After his death, his legal heirs succeeded him, from whom, defendant No. 1 had purchased the property. The litigation between Partap Singh and late Sh. Bakshi Ram has been admitted. Rest of the allegations have been denied.
7. Along with the suit, application under Order 39 Rules 1 and 2 CPC, was also filed, which has been contested by the defendants, on the similar grounds, as taken in the written statement.
8. The learned trial Court, vide order dated 16.10.2020, has allowed the said application.
9. Against the said order dated 16.10.2020, the defendants have filed the appeal under Order 43 Rule 1(r) of CPC, before the learned first appellate Court, however, the learned first appellate Court has dismissed the appeal being not maintainable.
10. The ground for dismissal of the appeal is that the plaintiff had filed an application under Order 39 Rule 4 read with Section 151 CPC and Order 47 Rule 1 CPC before the learned trial Court, prior to the filing of the present appeal by the defendants before the learned first appellate Court. The appeal is held to be premature.
11. In this background, the defendants are before this Court, by way of the present petition, filed under Article 227 of the Constitution of India.
12. The order has been assailed on the ground that the learned first appellate Court has wrongly held the appeal as not maintainable, mainly on the ground that the plaintiff had filed the application under Order 39 Rule 4 CPC and Order 47 Rule 1 CPC.
13. On the basis of the grounds of appeal, Mr. Y.P. Sood, Advocate, appearing for the defendants has argued that the learned first appellate Court has wrongly exercised the jurisdiction by holding the appeal as not maintainable, whereas the same should have been decided on merits, as the proceedings under Order 39 Rule 4 CPC, as well as, the application under Order 47 Rule 1 CPC are independent and have no bearing upon the merits of the case, as pleaded by the defendants, before the learned first appellate Court.
14. Per contra, Sh. Deepak Gupta, Senior Advocate, assisted by Ms. Meera Devi, Advocate, appearing for the plaintiff, has supported the order passed by learned first appellate Court and argued that the appeal before the
learned first appellate Court was premature and same has rightly been dismissed, as not maintainable.
15. In order to buttress his contentions, learned counsel for the plaintiff, has relied upon the decision of Hon’ble Supreme Court in “Rekha Mukherjee Versus Ashish Kumar Das, AIR 2005 Supreme Court 1944”, especially para 18, of the judgment. The said para is reproduced, as under: “The suit filed by the Respondents for grant of specific performance of contract was dismissed. The said decree although was appealable but in view of the order dated 15.07.2002, the said decree in its entirety ceased to operate. Order XLVII, Rule 1 CPC postulates filing of an application by a person considering himself aggrieved, by a decree or order from which an appeal has been preferred, to file an application if he desires to obtain a review from a decree passed against him. An appeal during the pendency of the review petition was, therefore, not maintainable. In terms of Order XLVII, Rule 4, the Court may either reject or grant an application for review. In case a review is rejected, the order would not be appealable whereas an order granting an application may be objected at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. Rule 8 of Order XLVII of CPC postulates that when an application for review is granted, a notice thereof shall be made in the register and the court may at once rehear the case or make such order in regard to the rehearing as it thinks fit.”
16. If the facts and circumstances of the present case, are seen in the light of the decision of Hon’ble Supreme Court in Rekha Mukherjee’s case (supra), the law laid down by the Hon’ble Supreme Court, in the said case, is not applicable to the facts and circumstances of the present case, as by way of the appeal before the learned first appellate Court, the defendants have assailed the order dated 16.10.2020, passed by the learned trial Court by virtue of which, relief as claimed, has been granted in favour of plaintiffPramod Sood, whereas, in the matter before the Hon’ble Supreme Court, the suit for specific performance filed by the plaintiff was dismissed and instead of filing the appeal, the plaintiff in the case before the Hon’ble Supreme Court, had filed the application under Order 47 Rule 1 CPC.
17. Moreover, the plaintiff, in the case, before the Hon’ble Supreme Court has filed the appeal, as well as, the review, simultaneously, whereas in the present case, the appeal before the learned District Judge, was filed by the aggrieved person i.e. defendants, against the order passed by learned trial Court. Once, the appeal has been filed under Order 43 Rule 1 of CPC, which is against the order dated 16.10.2020, and mainly on the ground that the application has been filed for review, does not give any occasion to learned District Judge, to hold the appeal as not maintainable, as the proper course for the learned first appellate Court was to keep the appeal pending, by directing the learned trial Court to decide the application under Order 47 Rule 1 CPC, read with Order 39 Rule 4 CPC.
18. As such, the order passed by the learned first appellate Court, falls within the definition of jurisdictional error, which is required to be corrected, by this Court, under Article 227 of the Constitution of India. As such, the order dated 31.10.2022, is set aside and appeal is remanded back to the learned first appellate Court, to restore the same to its original number, with direction to decide the same, keeping in view the decision of the learned trial Court in application under Order 47 Rule 1 CPC, read with application under Order 39 Rule 4 of CPC.
19. With these observations, the present petition is allowed and the parties to the lis, are directed to put appearance before the learned first appellate Court on 02.11.2026.
20. Any of the observations, made hereinabove, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present petition.
21. Pending application(s), if any, shall also stand(s) disposed of.
(Virender Singh) 12th October, 2026
Judge (Pramod Kumar)