IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CMPMO No. 270 of 2006 Reserved on : 1.8.2008 Date of Decision : August 18th, 2008 Amit Aggarwal …Petitioner. Versus: Chottey Lal and others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the petitioner: Mr. Dibender Ghosh, Advocate. For the respondents. Mr. M. S. Thakur, Advocate Sanjay Karol, Judge. The petitioner, on 22.3.2002 as plaintiff filed a suit for permanent prohibitory and mandatory injunction against the respondents herein alleging unauthorized construction being carried out by the respondents. Based on the pleadings of the parties, the trial Court framed the following issues on 26.6.2003:- 1. Whether the defendant unauthorizedly raised height of his roof and uprooted iron pipe, passing through the said roof obstructing the discharge of the waste water of the plaintiff as alleged? OPP 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2. If issue No.1 is proved in affirmative whether the plaintiff is entitled for relief of mandatory injunction, as alleged? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no locus-standi to file the present suit? OPD 5. Whether the suit is bad for misjoinder of necessary parties? OPD 6. Relief. The parties led evidence in support of their case even upto 23.5.2006. Perusal of the file shows that on 27.8.2004, the Court itself had allowed certain documents to be placed on record. On the plaintiff’s independent complaint filed with respect to the alleged unauthorized construction in issue during the pendency of the suit, the Junior Engineer and the Architect Planner of the Municipal Corporation, Shimla after spot inspection submitted its report dated 24.1.2006. Keeping in view this subsequent development, the petitioner moved an application praying that he may be permitted to lead additional evidence and Shri D. K. Nag (PW-2), who had earlier proved the notice of demolition (Ext.PW-2/G) issued by the Municipal Corporation, Shimla be recalled. This application of the petitioner was dismissed by the Civil Judge (Sr. Division), Court No.1, Shimla, H. P. vide order dated 4.8.2006 for the reasons that the petitioner could not take advantage of the said report as the cause of action to file the suit had arisen prior to the 3 preparation of the report in question. This order is under challenge in the present petition. I have heard learned counsel for the parties and also perused the record. In my view, the lower Court has completely misdirected itself and committed a grave irregularity and illegality in dismissing the application and not allowing the petitioner to lead additional evidence. The petitioner had already proved notice of demolition Ext.PW-2/G to establish that even the Municipal Authority had taken action against the defendants with respect to the alleged unauthorized construction, which was the subject-matter of the suit in question. In the application, it was specifically pointed out that in the defendants statutory appeal, the said show cause notice Ext.PW-2/G had been set- aside and the matter was remanded back to the Commissioner for consideration afresh and as a consequence thereof, the Commissioner, Municipal Corporation, Shimla had directed the Junior Engineer and the Architect Planner to visit the spot and based on such inspection, report dated 24.1.2006 was prepared. While deciding issue No.1, the report would certainly have a bearing. The steps taken by the plaintiff by leading additional evidence in the facts and circumstances were, therefore, totally justifiable and the application ought to have been allowed as such. No prejudice, whatsoever would have been caused to the defendants (respondents herein). 4 The contentions made by the learned counsel for the respondents (defendants) that the report prepared in the year 2006 could not have been considered as the cause of action for filing the suit had arisen in the year 2002, is preposterous and needs to be rejected for the reason that issue No.1 famed in the suit pertains to the alleged unauthorized construction and the report after inspection was prepared for the very same subject- matter, on the independent complaint of the plaintiff. The respondents plea that an expert evidence has already been led and, therefore, there is no need to lead additional evidence also needs to be rejected for the very same reason. Further submission that the civil suit is not maintainable in view of the action having been initiated by the statutory authorities also needs to be rejected as the same is not an issue in the present proceedings. It is always open for the defendants to take recourse to such remedies as may be available to them in accordance with law. For the aforesaid reasons, the order dated 4.8.2006 (Annexure PH) is set-aside and the present petition is allowed. The plaintiff is permitted to lead additional evidence and take all required steps in accordance with law. The Court shall recall the witnesses and/or allow additional evidence. Considering that the matter is old, the trial Court is directed to dispose of the matter as expeditiously as possible and preferably on or before 31st March, 2009. The parties through their learned counsels are 5 directed to appear before the concerned Court on 4th September, 2008. CMP No.535/2006 Interim order dated 26.9.2006 shall stand vacated and the application is disposed of. ( Sanjay Karol ), Judge. August 18th, 2008. (rana)