IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Review No.122 of 2010 Date of decision : August 31, 2011 Prakash Chand and another …Petitioners. Versus Smt. Neero Devi and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioners : Mr. Ajay Sharma, Advocate. For the Respondents : M/s Shrawan Dogra & Ashwani Pathak, Advocates. Surjit Singh, Judge(Oral) CMPM No.1162/2010 Heard. Allowed. Civil Review No.122/2011 Heard and gone through the record. 2. Present petition, under Order 47 Rule 1, read with Section 151 of the Code of Civil Procedure, has been filed to seek review of judgment dated 8th July, 2010 of this Court, whereby petitioners’ Regular Second Appeal, bearing RSA No.399 of 1999, has been dismissed. 3. Facts that are relevant for deciding the present petition may be noticed. Petitioners filed a suit, hereinafter referred to as first suit, claiming that they had exclusive right to irrigate their land from the water of a particular source. That suit was against the present Whether reporters of the local papers may be allowed to see the judgment? …2… respondents or their predecessors. Alongwith the plaint in that suit, an application for temporary injunction was also filed, which was dismissed by the trial Court. Appeal against the order of trial Court, dismissing that application, was taken to the Court of District Judge. In the Court of District Judge, the parties entered into a compromise, by which the main suit itself stood compromised. Compromise decree was passed on 23rd December, 1986. In terms of the compromise decree, respondents were given a limited right to irrigate their lands, using the water of the source that was the subject matter of that suit and the substantial portion of the water was to be used by the petitioners. 4. In the year 1988, another suit was filed by the petitioners, alleging that the respondents had not been abiding by the compromise decree, aforesaid, and they had caused damage to the crops, to the extent of `500/-. The suit was for permanent prohibitory injunction and also for recovery of damages, basing the claim on the compromise decree of December, 1986. That suit was dismissed. Appeal was filed in the Court of District Judge. During the pendency of that appeal, suit was withdrawn in January, 1992, with liberty to file a fresh suit, on the same cause of action, as it was alleged that there was a formal defect in the suit. …3… 5. In April, 1992 fresh suit was filed. The Regular Second Appeal, judgment delivered wherein is sought to be got reviewed, arises out of that suit. That was a suit for declaration and also for issuance of permanent prohibitory injunction. It was alleged that the compromise decree, passed in the first suit, was not in accordance with the provisions of Order 23 of the Code of Civil Procedure and, hence, a nullity and not binding upon the parties. Injunction was also sought, restraining the respondents from deriving any benefit under that decree. That suit was contested by the respondents. Various issues were framed. Suit was dismissed by the trial Court. Appeal filed by the petitioners, in the Court of District Judge, was also dismissed. The parties then came to this Court in Regular Second Appeal. In that appeal, order of remand was passed, in the year 1996, with a direction to the trial Court to decide the same afresh, after framing issues, based on the pleadings of the parties, because initially the suit was dismissed, on the ground that compromise decree of District Judge having been challenged in the Court of Sub Judge, the Court of Sub Judge did not have the jurisdiction. 6. Trial Court framed issues and recorded evidence adduced by the parties. At the time of hearing of arguments, issues were re-cast and two new issues …4… were also framed. Those two issues pertained to limitation and estoppel. No opportunity was afforded to the parties to lead evidence on the newly framed or re- cast issues. The suit was dismissed and the appeal was also dismissed. Petitioners then filed Regular Second Appeal in this Court. That appeal was dismissed, vide judgment dated 8th July, 2010, which is sought to be now reviewed, by means of the present petition. 7. Learned counsel for the petitioners submits that the issues of limitation and estoppel, which were framed, for the first time, by the trial Court, while hearing arguments, were mixed issues of law and facts and, therefore, opportunity was required to be afforded to the parties to lead evidence qua the same. This point was raised at the time of hearing of the Regular Second Appeal, which was decided vide impugned judgment, and the matter was dealt with in detail in Paras No.14, 15 and 16 of the judgment. Now, when this objection had been dealt with, review does not lie. 8. Second ground for review is that application for amendment of plaint, moved in the Court of District Judge, during the pendency of the first appeal, had been wrongly rejected. This point had also been raised in the Regular Second Appeal and was dealt with in Paras No.17 and 18 of the judgment. …5… In view of the abovestated position, there is no merit in the present petition for review. The same is, therefore, dismissed. Pending application(s), if any, also stand disposed of. August 31, 2011(sd) ( Surjit Singh ), J