CMPMO 395 of 2008. 22.10.2008 Present: Mr. Ajay Kumar, counsel for the petitioner. Mr. Satyen Vaidya, counsel for the respondent. This petition has been preferred by the defendant – respondent challenging the order passed by the learned Additional District Judge, Shimla in CMA No. 42-S/14 of 2008, titled Lalit Kapoor versus Santosh Sood, whereby he has reversed the order passed by the learned Civil Judge (Senior Division), Court No. 1, Shimla in CMA No. 52/6 of 2008. Briefly put, the respondent herein instituted suit against the petitioner, in which one of the reliefs sought for was for permanent prohibitory injunction and mandatory injunction, as prayed for in the plaint. In the suit, an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure for interim relief was also filed by the respondent- plaintiff wherein it was pleaded that the defendant is threatening to close the passage shown in green colour in the plan filed by the plaintiff. The case set up was that in case this passage is closed, there will be no access to the house of the plaintiff. The reply was filed by the respondent -2- resisting this claim. It was also submitted by the petitioner herein that a counter claim was filed by her praying for a decree restraining the plaintiff from causing any interference and obstruction while raising construction on building situated on khasra No. 213 to 216 and khasra No. 236, at Sanjauli in accordance with the sanctioned plan dated 22.10.2007. It was prayed that by way of an injunction, the plaintiff be restrained from causing any interference and obstruction on the construction sanctioned in favour of the petitioner herein by the Municipal Corporation on 22.10.2007. Both these petitions were taken up by the learned trial Court, who by an order dated 20.8.2008, protected the interests of both the petitioner as also the respondent herein, leaving them to establish their respective claims in the suit/counter claim filed by them. When the matter was being argued, learned counsel for the petitioner had submitted before the learned trial Court that the petitioner herein will not obstruct the path approaching to the house of the respondent herein according to the site plan dated -3- 16.7.1998 as filed alongwith the sale deed with with the Sub Registrar (Urban), Shimla by which the property had been sold to the respondent herein. It was admitted that the path as depicted in this site plan was also sold to the respondent herein along with the ground floor. The learned trial Court, on this basis issued an injunction against the petitioner in the following terms: “ Accordingly, the respondent is hereby restrained from obstructing the passage approaching towards the building of the applicant, which was given to him through Sale Deed 25.9.1998 and which is shown in the Site Plan Dated 16.7.1998 filed with the Sub Registrar (Urban), Shimla…” So far as the case relating to raising of construction on the remaining part of the land by the petitioner is concerned, the Court holds that no prima facie case had been made out. The Court holds that the documents prima facie reveals that the plan for construction has been sanctioned by the Municipal Corporation. In these circumstances, the respondent herein could not claim any injunction against the petitioner from carrying on his construction according to -4- the sanctioned plan. Injunction in favour of the petitioner herein restraining the respondent from interfering and obstructing any raising of construction on khasra Nos. 213 to 216 and khasra No. 236 and on the remaining part of the land was accordingly confirmed in favour of the petitioner. An appeal was preferred by the respondent to the Court of learned District Judge, Shimla. The learned Court set aside the order. Strangely enough, the learned Court holds that the approval of the plan granted by a statutory authority exercising powers under the Himachal Pradesh Municipal Corporation Act was obtained by suppressing material facts. How and in what circumstances, this finding has been arrived at is unclear. Such an argument could not be accepted on the mere submission of the respondent, but had to be established alluinde by other means. To say the least, the learned Court has traveled beyond its jurisdiction in accepting the appeal. The Court makes observations about set backs etc. which was not within its jurisdiction, but could be ascertained only from the record of the Municipal Corporation which has not at all been adverted to and which is not a party to the -5- proceedings. The mere pleading of suppression by the respondent finds favour with the appellate authority without any trial of material facts. The observations made by the learned appellate Court that there are disputed questions of fact and that the Municipal Corporation would not have sanctioned the plan in the manner in which it had sanctioned are not only speculative but have no foundation whatsoever. The appellate Court has practically concluded the trial by preempting the proof of a fact to be established by evidence. The judgment becomes even more speculative when the Court notices that at the time of argument it was submitted that the Municipal Corporation has also issued a notice to the petitioner herein to stop the work, meaning thereby that the corporation has realized that there is something wrong with the sanction. Surely, this is not judicial determination of facts. How and under what circumstances, the notice, if any, came to be issued, whether the construction was ordered to be stopped, the reasons for issuance of the notice, violation of statutory rules, if any, if so why, whether notice was issued at all etc. are all facts which have to be established and not inferred from arguments. -6- In the facts and circumstances of the case, this petition is allowed, the order passed by the Additional District Judge challenged in this petition is quashed and set aside and the order passed by the learned trial Court is restored. Pending application(s) shall stand disposed of. There shall be no order as to costs. Records if received be sent back immediately. October 22, 2008 (PC). (Dev Darshan Sud), J.