RSA No. 58 of 2006. Case: Himachal Pradesh Housing and Urban Development Authority Vs Manmohan Singh @ Madan Mohan Singh. Himachal Pradesh High Court

Case NumberRSA No. 58 of 2006
CounselFor Appellant: Mr. C.N. Singh, Advocate and For Respondents: Mr. N.K.Thakur, Senior Advocate, with Ms. Jamuna, Advocate
JudgesMr. Sandeep Sharma, J
IssueCode of Civil Procedure - Section 100
Judgement DateApril 17, 2017
CourtHimachal Pradesh High Court


Sandeep Sharma, Judge

  1. Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 26.10.2005, passed by learned Additional District Judge, Una District Una, H.P., in Civil Appeal No. 48 of 2002, affirming the judgment and decree dated 1.4.2002, passed by the learned Sub- Judge, 1st Class, Court No.1, Una, District Una, H.P., in civil Suit No.262 of 1993, whereby suit for mandatory injunction having been filed by the appellant/plaintiff came to be dismissed.

  2. Briefly stated facts of the case, as emerged from the record are that appellant/plaintiff (hereinafter referred to as the plaintiff) filed suit for mandatory injunction by demolishing the structure allegedly raised by the respondent/defendant (hereinafter referred to as the defendant) on HIG Plot No.296, situated in Rakkar Colony, Una, Tehsil and District Una, H.P. Plaintiff alleged in the plaint that on the application of the defendant, plaintiff-board allotted a plot No.HIG-296 to the defendant on 6.1.1986 on Hire Purchase Tenancy Agreement (hereinafter referred to as ''HPTA'') basis. According to plaintiff, after execution of ''HPTA'' in favour of the plaintiff on 13.5.1986, possession of the plot was delivered to the defendant and as per the terms and conditions of the HPTA, defendant was required to raise construction after approval of the proposed construction plan from the plaintiff-board and in case of any deviation, plaintiff-board was authorized to get it rectified or demolished. Plaintiff further alleged that in the month of December, 1990, the field staff of the plaintiff board found that some unauthorized construction was being carried out in the plot allotted to the defendant, accordingly plaintiff-board through its Executive Engineer, served notice, dated 18.12.1990 on the defendant advising therein to stop the illegal and unauthorized construction.

  3. Plaintiff further claimed that the Executive Engineer, H.P. Housing Board also issued directions to the defendant to stop the illegal and unauthorized construction but the defendant continued with the construction work. On the basis of aforesaid facts, plaintiff alleged in the plaint that defendant by way of raising unauthorized construction on the plot despite there being protest of the plaintiff board has infringed the rules and regulations and as such has caused legal injury to the residents of the area. In the aforesaid background, plaintiff board preferred the suit for mandatory injunction against the defendant before the learned trial Court.

  4. Defendant by way of written statement refuted the aforesaid claim of the plaintiff taking therein preliminary objections with regard to maintainability, locus-standi, cause of action, valuation, estoppel and limitation. On merits, defendant submitted that he had submitted his proposed site plan to the plaintiff for permission for construction and the entire construction was raised by him under the provisions of the rules. Defendant claimed that there is no violation of any rule and there was no unauthorized construction over any part of the plot. The plaintiff did not file any replication to the written statement.

  5. Learned trial Court on the basis of the pleadings of the parties, framed the following issues:-

  6. Whether plaintiff is entitled for relief of mandatory injunction as prayed for? OPP.

  7. Whether the suit is not maintainable in present form? OPD.

  8. Whether the plaintiff is estopped by his act and conduct to file present suit? OPD.

  9. Relief:-

  10. Subsequently, vide judgment and decree dated 1.4.2002, learned trial Court dismissed the suit having been filed by the plaintiff-board.

  11. Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 1.4.2002, passed by learned trial Court, appellant/plaintiff preferred an appeal under Section 96 CPC in the Court of learned Additional District Judge, Una, H.P, which came to be registered as Civil Appeal No.48 of 2002. However, fact remains that aforesaid appeal was dismissed, as a result of which, judgment and decree passed by the learned trial Court came to be upheld. In the aforesaid background, appellant/ plaintiff preferred instant Regular Second Appeal before this Court, praying therein for decreeing its suit after setting-aside the judgments and decrees passed by the learned Courts below.

  12. This Court vide order dated 13.3.2006, admitted the instant Regular Second Appeal on the following substantial questions of law:-

  13. Whether the first appellate court erred in law in holding that the plaintiff was not competent to lay a suit for mandatory injunction against an allottee of the plot under the hire purchase agreement in case such allottee raises unauthorized construction in violation to the terms of allotment?.

  14. Whether the first appellate court erred in holding that the present suit for mandatory injunction against the defendant was incompetent as the appellant-plaintiff had issued a notice of resumption of the plot to the defendant for having not raised construction in accordance with the provisions of hire purchase tenancy agreement?.

  15. Whether the findings of the courts below are result of misreading and misappreciation of the evidence on record?.

  16. Mr. C.N.Singh, learned counsel representing the appellant/plaintiff vehemently argued that the impugned judgment and decree passed by the learned courts below are not sustainable in the eye of law as the same are not based upon the correct...

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