1. The present respondent was the plaintiff before the learned trial Court. The plaintiff had filed a suit for permanent prohibitory injunction and for grant of mandatory injunction. The suit land in the case at hand bears Khasra Nos.234 and 241 situated at Mohal Rauni, Tehsil Theog, District Shimla. On Khasra No.234, there exists an apple orchard of the present respondent/plaintiff. Khasra No.241 is co-owned by the respondent/plaintiff and the present petitioners/defendants. In the suit so filed, the respondent/plaintiff claims a right of access to Khasra No.234 from Khasra No.241.

2. In the aforesaid suit, vide order dated 9.9.2022, learned trial Court had restrained the present petitioners/defendants from obstructing or creating any type of hindrance or interference in any manner in the free access of the applicant over the passage passing through the suit land compromised in Khasra No.241. Post passing of the aforesaid order, the matter was listed on 29.9.2022 for effecting service of the plaintiff/respondent. Compliance under Order 39 Rule 3 of the Code of Civil Procedure, 1908 (for short, “CPC”) was required to be made within the stipulated time.

3. The copy of the aforesaid order was duly served upon the petitioners/defendants. Despite being aware of the same, the petitioners/defendants had restrained the respondent/plaintiff from the use of the passage over Khasra No.241. In view of the aforesaid, present respondent/plaintiff was forced to approach the Police Post, Matiyana. The complaint so made was registered vide Nakal Rapat No.16 in Rojnamcha dated 15.9.2022. Since the Police took no action to implement the aforesaid impugned order passed by the trial Court dated 9.9.2022, therefore, the plaintiff/respondent was constrained to approach the trial Court by moving an application under Section 151 of the Code of the CPC, seeking Police assistance. The said application was instituted on 19.9.2022. The next date in the matter was fixed for 26.9.2022. On the said date, the present petitioners/defendants put in appearance, filed their written statement and adopted the same as reply to the application under Section 151 of the CPC wherein Police assistance was being sought.

4. Other than the aforesaid, respondent/plaintiff had filed an application for appointment of a Local Commissioner. During the pendency of the application, wherein Police assistance had been sought for enforcement of the order dated 9.9.2022, a Local Commissioner was appointed to inspect the spot and submit his report with respect to existence of the path over Khasra No.241 and any type of obstruction made thereupon. Besides the aforesaid, Local Commissioner was also directed to report about the standing apple crop existing on Khasra No.234 and the harvested apple crop lying in crates in the orchard, i.e., Khasra No.234. Copy of the said report was also supplied to the parties on 26.9.2022.

5. The trial Court had observed that admittedly, the plaintiff/respondent herein had filed complaints and a writ petition against encroachments made on the Government land. In pursuance to the same, some of the petitioners/defendants had been evicted by the Collector-cum-DFO, Theog while exercising powers under the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, whereas some of the petitioners/defendants had preferred an appeal against the said order. Besides the aforesaid, learned trial Court had noticed over ripened, un-plucked, un-harvested and damaged apple crop in the orchard of the respondent/plaintiff existing on Khasra No.234. Further, trial Court from a perusal of the photographs noticed traces of an old path existing on Khasra No.241. Other than the aforesaid, learned trial Court from the photographs also noticed existence of a wooden gate and recently dug up pit whereby obstruction in the alleged path existing on Khasra No.241 had been made by the present petitioners/defendants.

6. Post hearing both the parties, learned trial Court in order to maintain the sanctity of the order passed by the learned Court allowed the application seeking Police assistance and directed the SHO, Police Station, Theog to ensure strict compliance of the order passed by the learned trial Court on 9.9.2022.

7. Subsequent to the aforesaid, on 14.3.2023, when the daughters-in-law of the respondent/plaintiff were using the path existing on Khasra No.241, for the purpose of approaching their orchard which exists on Khasra No.234 for the purpose of spraying insecticides/pesticides in their orchard, the present petitioners/defendants, particularly Suresh and Dila Ram had obstructed them and threatened them with dire consequences, if they used the passage again. In this respect, the concerned Police authorities at Police Post, Matiyana were duly informed by filing an appropriate necessary complaint in this regard. Copy of the same was also forwarded to the Superintendent of Police, Shimla. However, no action ensued thereupon.

8. In the aforesaid backdrop, respondent/plaintiff was forced to file yet another application under Section 151 of the CPC, seeking Police assistance. Notices of the aforesaid application were served upon the counsel for the petitioners/defendants for 6.4.2023. Thereafter, the matter was posted for 12.4.2023. On the said date yet again, no reply was filed to the application filed by the respondent/plaintiff seeking Police assistance. Time was yet again prayed for filing reply on 12.4.2023. For the reasons stated, the same was rejected. Thereafter, impugned order dated 12.4.2023 was passed, whereby the application seeking Police assistance was allowed.

9. The petitioners/defendants have argued that the impugned order dated 12.4.2023 is contrary to the legal position. Besides aforesaid, it is further argued that the matter in question has been decided in a hasty manner without affording an appropriate opportunity to the petitioners/defendants to file their reply to the application in question. As a consequence thereof, the real factual position with respect to the obstruction had not been ascertained by the trial Court. Further, a new plea qua the death of one Paras Ram defendant No.5/petitioner No.5 on 23.12.2022 and effect of non-impleadment of his legal representatives has been raised.

10. Per contra, learned counsel for the respondent/plaintiff has argued that there is no illegality, irregularity or jurisdictional error in the impugned order. As per counsel for the respondent/plaintiff, the trial Court was well within its jurisdiction to give appropriate direction to the Police authorities to render aid to the aggrieved party for due and proper implementation of the order passed in the suit, i.e., order dated 9.9.2022. Other than the aforesaid, it is argued that due and adequate opportunity in the facts and attending circumstances of the case at hand were given to the petitioners/defendants for filing their response. It was further argued that vide impugned order dated 9.9.2022, not only were the petitioners/defendants restrained, but by virtue of the said order, any other persons claiming rights had also been restrained from causing any obstruction/hindrance.

11. Last but not least, learned counsel for the respondent/plaintiff has laid stress on the conduct of the petitioners/defendants post passing the impugned order dated 9.9.2022, wherein after the respondent/plaintiff was constrained to approach the Court to seek Police assistance for conducting horticultural operations upon the orchard of the respondent/ plaintiff located at Khasra No.234.

12. I have heard learned counsel for the parties and have carefully gone through the record.

13. At this juncture, it would be appropriate to reproduce Section 151 of the CPC, which reads as under:-

“151. Saving of inherent powers of Court.—Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

14. While considering the scope of Section 151 of the Code of Civil Procedure in Meera Chauhan v. Harsh Bishnoi, (2007) 12 SCC 201, [LQ/SC/2006/1278] the Hon’ble Apex Court had observed the following:-

“15. On a bare perusal of Section 151 of the Code of Civil Procedure, it cannot be said to be in dispute that Section 151 confers wide powers on the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court

18. At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order.”

15. In view of the aforesaid authoritative pronouncement of law, I find no illegality, irregularity or jurisdictional error in the impugned order. By virtue of the interim order dated 9.9.2022, the present petitioners/defendants had been restrained from obstructing, hindering the free access of the respondent/plaintiff over the passage through the suit land. During the currency of the aforesaid injunction order, the respondent/plaintiff was obstructed in approaching the suit land and by virtue of the impugned order an appropriate direction was issued to the Police authorities to render aid to the respondent/plaintiff for the due and proper implementation of the orders passed in the suit. The trial Court only wanted that the injunction order which has been violated be implemented.

16. At the outset, it is stated that there cannot be a straitjacket formula for compliance of rules of natural justice. Each case will have to be viewed in its own facts and attending circumstances. The petitioners/defendants had been served with a copy of the application seeking Police assistance through their counsel on 6.4.2023. No reply was filed on the said date though they had been served well within time. On the said date, time was sought for filing reply. Keeping in account the urgency of the matter, the same was posted for 12.4.2023. On the said date, yet again time was prayed for. Learned trial Court disallowed the same for the reason that delay in implementation of order dated 9.9.2022 would adversely affect the livelihood of the respondent/plaintiff, as on account of non conducting of timely operations of horticulture in the orchard, respondent/plaintiff would suffer irreparable loss, which could not be compensated in terms of money.

17. In this context, it would be appropriate to mention that the obstruction in question was caused on 14.3.2023 when the daughters-in-law of the respondent/plaintiff were restrained by petitioners/defendants specifically Shri Suresh and Shri Dila Ram from using the passage /approach on Khasra No.241 for reaching their orchard on Khasra No.234. In this respect, forthwith a complaint depicting the commission of a cognizable offence as rightly observed by the learned trial Court was also filed with the Police Post, Matiyana. A copy thereof had been forwarded to the Superintendent of Police, Shimla. It is only upon the inaction of the Police authorities that the respondent/plaintiff was constrained to approach the Court by way of filing present application in March, 2023 itself.

18. Taking into account the aforesaid facts and attending circumstances, I am of the considered view that due and adequate opportunity was afforded to the petitioners/defendants in order to put forth their case with respect to the application in question. Even otherwise, from the stand taken before the trial Court, it is evident that the petitioners/defendants had taken a stand that they had not violated the order dated 9.9.2022.

19. Even though, the representatives of deceased defendant No.5/petitioner No.5 have been brought on record while filing the present petition. A ground with respect to the death of Shri Paras Ram, defendant No.5/petitioner No.5 has been taken in the present petition and then impact thereof on the pending proceedings before the trial Court has been taken. In this regard, it is stated that on the death of Shri Paras Ram, defendant No.5/petitioner No.5 on 23.12.2022, the suit abates automatically against him, as the legal representatives are not brought on record within 90 days from the death of the deceased defendant.

20. In this regard, it would be appropriate to refer judgment passed in Budh Ram v. Bansi, (2010) 11 SCC 476 [LQ/SC/2010/792] : (2010) 4 SCC (Civ) 491, at page 479. The relevant extract is reproduced as under:-

“10. Abatement takes place automatically by application of law without any order of the court. Setting aside of abatement can be sought once the suit stands abated. Abatement in fact results in denial to hearing of the case on merits. Order 22 Rule 1 CPC deals with the question of abatement on the death of the plaintiff or of the defendant in a civil suit. Order 22 Rule 2 relates to procedure where one of the several plaintiffs or the defendants die and the right to sue survives. Order 22 Rule 3 CPC deals with procedure in case of death of one of the several plaintiffs or of the sole plaintiff. Order 22 Rule 4 CPC, however, deals with procedure in case of death of one of the several defendants or of the sole defendant. Sub-rule (3) of Rule 4 makes it crystal clear that:

“4. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.”

21. When the proceedings abate in respect of one or more of either of the parties, the Courts are not disabled in any manner to proceed with the proceedings so far as the remaining parties are concerned. The Court can always declare the legal position in general and restrict the ultimate relief to be granted by confining it to those before the Court only rather than denying the relief to one and all on account of a procedural lapse or action or inaction of one or the other of the parties before it. As far as possible, Courts must always aim to preserve and protect the rights of parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose, “ubi jus ibiremedium” (where there is a right, there is a remedy) being a basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice.”

22. In this respect, it would be appropriate to refer to judgment passed in Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272, [LQ/SC/2002/1331] at page 307. Relevant extract is being reproduced as under:

“33. Even assuming that the decree appealed against or challenged before the higher forum is joint and several but deals with the rights of more than one recognized in law to belong to each one of them on their own and unrelated to the others, and the proceedings abate in respect of one or more of either of the parties, the courts are not disabled in any manner to proceed with the proceedings so far as the remaining parties and part of the appeal is concerned. As and when it is found necessary to interfere with the judgment and decree challenged before it, the court can always declare the legal position in general and restrict the ultimate relief to be granted by confining it to those before the court only rather than denying the relief to one and all on account of a procedure lapse or action or inaction of one or the other of the parties before it. The only exception to this course of action should be where the relief granted and the decree ultimately passed would become totally unenforceable and mutually self-destructive and unworkable vis-à-vis the other part, which had become final. As far as possible, courts must always aim to preserve and protect the rights of parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose, “ubi jus ibiremedium” (where there is a right, there is a remedy) being a basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice.”

23. The issue is being raised for the first time. Had it been raised before the trial Court, the plaintiff/respondent would have got an opportunity to defend qua the issue so raised. Even otherwise, this being a disputed question of fact, at this stage, I am precluded from entering into the same. As has already been stated supra, plaintiff/respondent would get an opportunity to move an appropriate application for setting aside the abatement, if any. The question with respect to abatement of the suit in question was not raised before the trial Court. At this stage, it would not be appropriate to enter into a disputed question of fact, as to whether there is a substantial representation of the estate of the deceased defendant/petitioner. Besides the aforesaid, abatement, if any, can be got set aside, if an appropriate application is filed there-for.

24. In this context, it would be appropriate to refer to judgment passed in P. Chandrasekharan v. S. Kanakarajan, (2007) 5 SCC 669, [LQ/SC/2007/583] at page 676. The relevant extract is reproduced as under:-

“19. Indisputably, an appeal would abate automatically unless the heirs and legal representatives of the deceased plaintiffs or defendants are brought on record within the period specified in the Code of Civil Procedure. Abatement of the appeal, however, can be set aside if an appropriate application is filed therefor. The question, however, as to whether a suit or an appeal has abated or not would depend upon the facts of each case. Had such a question been raised, the respondents could have shown that their cross-objection did not abate as the estate of the deceased cross-objector was substantially represented.

20. In Mithailal Dalsangar Singh v. Annabai Devram Kini 11 whereupon Mr Balakrishnan himself relied, this Court held: (SCC p. 696, paras 8-9)

“8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.

9. The courts have to adopt a justice- oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of ‘sufficient cause’ within the meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.”

21. The ratio of the said decision does not militate against the observations made by us hereinbefore. The question in regard to abatement of a suit or appeal has not been raised. We cannot enter into the disputed question of fact at this stage as to whether there has been a substantial representation of the estate of the deceased cross-objectors.”

25. The conduct of the petitioners/defendants in the case at hand reflects an element of adamancy, disregard/disrespect for orders passed by the learned trial Court in implementing the impugned order. As from a perusal of the record, it is evident that on each and every occasion, when a horticultural operation has to be conducted upon the orchard of the respondent/defendant on Khasra No.234, i.e, whether it is plucking, removing of apple crop or conducting of spray of insecticides/pesticides, the respondent/plaintiff is forced to approach the learned trial Court for seeking Police assistance to get the order dated 9.9.2023 implemented. Hence, the plaintiffs/defendants are not entitled to any discretionary relief.

26. In view of the above discussion, I find no illegality, irregularity or jurisdictional error in the impugned order dated 9.9.2022, passed by the learned trial Court. The petition is, therefore, dismissed.

27. Pending miscellaneous application(s), if any, shall also stand disposed of.