Manoj Kumar vs Satish Chand

Sanjay Karol, J.—Appellant Manoj Kumar filed a suit for mandatory and permanent prohibitory injunction, inter alia, against defendant Satish Chand/one of the respondents herein. Vide judgment and decree dated 27.08.2007, learned Civil Judge (Junior Division), Court No. 2, Rohru, District Shimla, H.P. in Civil Suit No. 24/1 of 2004/02, titled as Manoj Kumar Versus Satish Chand & others, decreed the suit, directing defendant No. 1 to remove the super structure raised over the suit land and deliver possession thereof to the plaintiff.

Satish Chand filed an appeal, which stands allowed by the Court of learned Additional District Judge, Shimla, Camp at Rohru, vide judgment and decree dated 21.07.2012 in Civil Appeal No. 23-R/13 of 2007, titled as Sh. Satish Chand Versus Sh. Manoj Kumar & others. Findings returned by the trial Court stand reversed in toto and the judgment and decree set aside. Plaintiff's suit stands dismissed. Primarily what weighed with the lower Appellate Court, was the relevancy and binding effect of report (Ex. PW.4/A) of the Naib Tehsildar, A.C. 2nd Grade, Tikkar.

Present appeal filed under Section 100 of the Code of Civil Procedure stands admitted on the following substantial question of law:-

Whether the judgment passed by the lower Appellate Court can be faulted for not having considered the judgment dated 13.04.2011, passed by this Court in CMPMO No. 255 of 2010, titled as Satish Chand Versus Manoj Kumar?

Mr. G.D. Verma, learned Senior counsel invites my attention to the judgment dated 13.04.2011 passed by this Court in CMPMO No. 255 of 2010, titled as Satish Chand Versus Manoj Kumar & others. According to learned Senior counsel, while disposing of the appeal, lower Appellate Court erred in not taking into account the said decision, which also deals with report (Ex. PW.4/A). Significantly in the said decision, this Court had upheld order dated 14.05.2010 passed by the Additional District Judge, Shimla, in an application filed by Satish Chand.

While deciding the main appeal, the lower Appellate Court has not taken into account the relevancy, significance and binding effect of this order in the backdrop of respective evidence and other material so placed on record by the parties.

The issue of estoppel which is raised by Mr. Virender Singh Chauhan, learned counsel, also needs to be considered.

Interest of justice demands that all contentions raised herein be first considered by the lower Appellate Court. As such, on this short ground alone, judgment dated 21.07.2012, passed by learned Additional District Judge, Shimla, Camp at Rohru, in Civil Appeal No. 23-R/13 of 2007, titled as Sh. Satish Chand Versus Sh. Manoj Kumar & others, is set aside and the matter is remanded back to the lower Appellate Court for consideration of the appeal afresh, in accordance with law, after taking into account various decisions, which may be referred to by the parties, including the judgment dated 13.04.2011 passed by this Court in CMPMO No. 255 of 2010, titled as Satish Chand Versus Manoj Kumar & others, as also entire material placed on record by the parties. Liberty is granted to place on record any other material, if need so arises subsequently. All questions of fact and law are left open. Parties are directed to appear before the lower Appellate Court on 17.11.2014. Registry is directed to immediately send the record back. Hearing of the appeal is expedited. Parties undertake not to take any unnecessary adjournments.

With the aforesaid observations, present appeal stands disposed of, so also, pending application(s), if any.