IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 380 of 2010 Date of decision: 16.3.2011 Kalyan Chand …Petitioner. Versus Anita Arora …Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. B.S.Chauhan, Advocate. For the respondent: Mr. R.K.Gautam, Sr. Advocate with Shri Mehar Chand, Advocate. Deepak Gupta, J. (Oral) 1. This petition is directed against the order dated 18.08.2010 passed by the learned trial Court rejecting the application filed under Section 151 CPC for demolition of the structure raised by the defendant. 2. The plaintiff filed a suit claiming that the respondent had raised two pillars on a portion of the suit land which belongs to the plaintiff and that the defendant was intending to encroach upon the land of the plaintiff. A stay order was passed in the main suit restraining the defendant from raising any construction over the suit land. Some construction has been raised by the defendant and proceedings under Order 39 Rule 2 A are also going on. The stand of the defendant is that the 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 construction has not been raised on the suit land but on the land which belongs to the defendant herself. During the pendency of the suit and proceeding under Order 39 Rule 2A plaintiff moved an application under Section 151 CPC praying that the construction raised by the defendant be ordered to be demolished since it has been raised in violation of the stay order. The learned trail Court held that this application was not maintainable since it would virtually amount to allowing the suit itself as well as proceedings under Order 39 Rule 2A. This order is under challenge. 3. I have heard Shri B.S.Chauhan learned counsel for the petitioner and Shri R.K.Gautam, learned senior counsel for the respondent. 4. In my view the order passed by the learned trail Court is fully justified. The first question which has to be decided is whether the defendant has raised the construction on the suit land or not. This issue can only be decided after evidence is led either in the main suit or in proceedings under Order 39 Rule 2A but without such an allegation being proved on record no order of demolition can be passed especially when there is no such prayer in the main suit itself. Therefore, there is no merit in the petition, which is accordingly rejected. No order as to costs. 16th March, 2011 (Deepak Gupta) ™ Judge