Rakesh Ahuja vs Bimla & Another

Ajay Mohan Goel, J

By way of this petition filed under Article 227 of the Constitution of India, petitioner herein has assailed order dated 21.08.2020, passed by the Court

of Learned Civil Judge, Court No. 6, Shimla, H.P. in Civil Miscellaneous Application No. 644 of 2020 filed in Civil suit No. 47-1 of 2016, which application has been disposed of by the Court below by directing the police to implement order dated 24.07.2019 in its letter and spirit without causing any damage to the suit property.

Having heard learned counsel for the parties and having perused the pleadings, this Court is of the view that prima facie the order passed by the

Court below is perverse. This observation is made by the Court for the following reasons.

Respondent herein namely Bimla has filed a Civil Suit for permanent prohibitory injunction against the present petitioner alongwith an application

under Order 39 Rules 1 and 2 of the Code of Civil Procedure. It appears that the Court below passed interim directions in the application filed under

Order 39 Rules 1 and 2 CPC. Feeling aggrieved of the fact that the order so passed by the Court below dated 10.11.2016 was not being obeyed by the defendant therein, the plaintiff approached the Trial Court by way of an application filed under Section 151 CPC for enforcement of the order passed in the application filed by her under Order 39 Rules 1 and 2 CPC. However, learned Court below rather than appreciating that its domain was limited to enforcement of the order passed in the application filed under Order 39 Rules 1 & 2 CPC, has erroneously issued directions to the police to implement the order dated 24.07.2019, ignoring the fact that no order on 24.07.2019 stood passed by the said Court and the order dated 24.7.2019

which finds mention in the impugned order was an order which was passed by this Court i.e. High Court of Himachal Pradesh in CWPIL No. 138 of

2018, Court on its own Motion vs. State of H.P. & others.

In this view of the matter, in the considered view of the Court, impugned order dated 21.08.2020 suffers from perversity by directing the

implementation of the order passed by the High Court of Himachal Pradesh by way of police assistance rather than passing orders on the application so filed before it for enforcement of the order passed in the application so filed under Order 39 Rules 1 and 2 CPC.

This petition is therefore allowed by setting aside order dated 21.08.2020 passed by learned Civil Judge, Court No. 6, Shimla, HP in Civil Misc.

Application No. 644 of 2020 in Civil Suit No. 47-1 of 2016, with a further direction to the learned Court below to revive the application which stood filed before it for grant of police assistance by the present respondent and adjudicate the same afresh after hearing both the parties, uninfluenced by any observation made by this Court in this order.

At the first instance the parties shall appear before the Court below, through their learned Counsel, on 11th January, 2021, where after the learned

Court below shall fix a date for hearing the application.

Petition stands disposed of accordingly, so also the pending applications, if any.

Copy dasti.