The Manimahesh Power Project Sahoo Vs Hari Singh

2026:HHC:17171

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

RSA No. 452/2019 Decided on: 05.05.2026

The Manimahesh Power Project Sahoo …..Appellant Versus Hari Singh ….Respondent ______________________________________________________________

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Coram:

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The Hon’ble Mr. Justice Romesh Verma, Judge.

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Whether approved for reporting?¹

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For the Appellant: Mr. Nimish Gupta, Advocate with Mr. Anil Kapoor, Advocate. For the Respondent: Mr. K. B. Khajuria, Advocate with Ms. Palvi, Advocate.

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Romesh Verma, Judge (oral)

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The present appeal arises out of the judgment and decree, dated 01.06.2019, as passed by the learned District Judge, Chamba, whereby the appeal filed by the present appellant/defendant has been dismissed and the judgment and decree, dated 01.03.2019, as passed by the learned Senior Civil Judge, Chamba, whereby the suit filed by the present respondent/plaintiff was partly decreed, have been affirmed.

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1Whether reporters of the local papers may be allowed to see the judgment? Yes.

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2 Brief facts of the case are that the

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respondent/plaintiff filed a suit for permanent prohibitory and mandatory injunction against the present appellant on 04.04.2013 before the learned trial court. As per averments, as made in the plaint, he along with other co-owners is recorded as owner in possession of the land comprised in Khata No. 105, Khatauni No. 149, Khasra No. 1195, measuring 2 Bighas 10 Biswas, situated in Mohal Paddar, Patwar Circle, Sahoo, Tehsil and District Chamba, H.P. The suit land is recorded as ‘Dhani Abwal’ i.e. most fertile cultivable land. He has been harvesting the suit land from the time of his ancestors to earn his livelihood by growing cash crops, which is his main source of income.

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3 As per the plaintiff, the appellant/defendant while executing a hydroelectric power project and for raising water channel and developing other site of the power house, threw malba, stones, boulders and other debris, over the suit land in the months of July and August, 2012. The appellant/defendant was requested to remove the said debris from the suit land, but till date no steps have been taken in that regard. Therefore, decree for permanent prohibitory injunction was sought restraining the defendant, its employee, workmen, representatives or any person acting on behalf of the

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defendant, from causing any type of interference or throwing malba, debris and other material over the suit land while constructing hydroelectric power project in question. Further decree for mandatory injunction was also sought directing the defendant to remove the malba, debris and other material thrown over the suit land while raising construction of the aforesaid hydroelectric project.

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4 The suit was contested by the appellant/defendant by filing written statement, wherein preliminary objections, qua maintainability, non-joinder of necessary parties, estoppel etc. were raised. On merits, it was stated that the appellant/defendant is a Co-operative Society, registered under the Himachal Pradesh Co-operative Societies Act, 1968 (for brevity “the Act”) and under Section 76 of the Act, no suit could be instituted against the society or against any of its officers unless two months period has expired after notice in writing having been delivered to Registrar, stating therein cause of action. No such notice has been served by the respondent/plaintiff, therefore, the suit is liable to be dismissed. It was averred that the plaintiff entered into an agreement with the defendant on 24.2.2012 and agreed to allow the defendant to use the suit land and defendant paid a sum of Rs.1,75,000/- as damages likely to be incurred by the plaintiff

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and other co-owners. It was further agreed that a sum of Rs.20,000/- was to be paid to the plaintiff for construction of drain for discharge of over flow water from the spillway. The defendant, after completion of the work, would remove the malba. Thus, the defendant prayed for dismissal of the suit and refuted all the averments and allegations as made in the plaint.

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5 The learned trial court on 22.09.2015 framed the

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following issues:-

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Whether the plaintiff is entitled for the decree of permanent prohibitory injunction, as prayed for? OPP.

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Whether the plaintiff is entitled for the decree of mandatory injunction, as prayed for? OPD.

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

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Whether the suit of the plaintiff is bad for nonjoinder of the necessary parties? OPD

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

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Whether the notice u/s 76 of the H.P. Cooperative Society Act has not been issued, as alleged? OPD 7. Relief.

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6 The learned trial court directed the parties to adduce evidence in support of their contentions to corroborate

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their respective case and ultimately, the learned trial court vide its judgment and decree dated 1.3.2019 partly decreed the suit of the plaintiff/respondent restraining the defendant/appellant permanently from interfering over the suit land in such a manner so as to render the same barren or except in accordance with law and directing the defendant/appellant to remove the malba/debris over the suit land at its own cost.

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7 The defendant/appellant, feeling dissatisfied by the judgment and decree, dated 1.3.2019, as passed by the learned trial court, preferred an appeal before the learned first Appellate Court on 4.4.2019, which came to be dismissed vide judgment and decree dated 1.6.2019.

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8 Still feeling aggrieved by the aforesaid judgments and decrees, the appellant/defendant has preferred the present regular second appeal, which was admitted on 23.12.2019 by this Court on the following substantial questions of law:-

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Whether the findings so arrived by learned courts below are the result of misreading, misconstruction and misinterpretation of oral and documentary evidence adduced by parties?

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Whether a suit can be instituted against a society registered under Himachal Pradesh Cooperative Societies Act, without complying with provisions of Section 76 of the Act ibid?

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Whether the document/report, Mark B, issued by Patwari, could be relied upon without the same having been proved in accordance with law?

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9 It is contended by Mr. Nimish Gupta, Advocate appearing for the defendant/appellant that the judgments and decrees as passed by the learned courts below are erroneous and are liable to be quashed and set aside. He has submitted that the suit, as filed by the plaintiff/respondent, was not maintainable in view of provisions of Section 76 of the Act. The learned courts below have not given findings on the said objection as raised by the defendant in its written statement.

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10 On the other hand, Mr. K. B. Khajuria, Advocate, has defended the judgments and decrees passed by the learned courts below. He has submitted that both the learned Courts below have concurrently passed the judgments and decrees in favour of the respondent/plaintiff and the same do not call for any interference.

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11 I have heard the learned counsel for the parties and have perused the record carefully.

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12 The only contention, which has been raised by the learned counsel for the appellant/defendant before this Court is that the suit instituted against the appellant by the

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plaintiff/respondent without complying with the provisions of Section 76 of the Act is not maintainable.

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13 It would be apposite to reproduce Section 76 of the Act, which reads as under:-

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“76. Notice necessary in suits.

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- No suit shall be instituted against a society or any of its officers in respect of any act touching the constitution, management or the business of the society, until the expiration of two months after notice in writing has been delivered to the Registrar or left at his office stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.”

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14 The provisions of the Section 76 of the Act show that no suit can be instituted against the Society in respect of its constitution, management or business until the expiration of two months after notice in writing has been delivered to the Registrar or left at his office stating the cause of action.

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15 Admittedly, in the present case, no notice has been issued by the plaintiff. Though, specific defence was taken by the defendant in the written statement with respect to maintainability of the suit on account of Section 76 of the Act, but the findings as returned by the learned trial court are sketchy and non-speaking.

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16 After passing of the judgment and decree by learned trial court even before the learned first appellate court, in the grounds of appeal, specific stand has been taken by the defendant in para 8 to the effect that in the absence of issuance of notice, the suit as instituted against the society was not maintainable. Perusal of the judgment and decree, as passed by the learned first appellate court reveals that there is no discussion at all or findings qua the same.

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17 Substantial question of law No.2, which deals with provisions of Section 76 of the Act, goes to the root of the case at hand. In the absence of any findings qua the same, more particularly, when there was specific stand having been taken on behalf of the defendant and issue No.6 having been framed to this effect, the learned trial court has erred in law in not assigning any reasons while adjudicating the said issue and the same is contrary to the mandate, as laid down by the Hon’ble Supreme Court in Assistant Commissioner, Commercial Tax Department vs. Shukla, (2010) 4 SCC 785 , wherein it was held as under:-

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“24. Reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases (Wharton's Law Lexicon). Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty. As a matter

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of fact it helps in the observance of law of precedent. Absence of reasons on the contrary essentially introduces an element of uncertainty, dis- satisfaction and gives entirely different dimensions to the questions of law raised before the higher/appellate courts. In our view, the court should provide its own grounds and reasons for rejecting claim/prayer of a party whether at the very threshold i.e. at admission stage or after regular hearing, howsoever precise they may be.

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30. In light of the judgments referred to and relied upon by the parties including the judgment of this Court, it is true that requirement of stating reasons for judicial orders necessarily does not mean a very detailed or lengthy order, but there should be some reasoning recorded by the Court for declining or granting relief to the petitioner. The purpose, as already noticed, is to make the litigant aware of the reasons for which the relief is declined as well as to help the higher Court in assessing the correctness of the view taken by the High Court while disposing off a matter. May be, while dealing with the matter at the admission stage even recording of short listening dealing with the merit of the contentions raised before the High Court may suffice, in contrast, a detailed judgment while matter is being disposed off after final hearing, but in both events, in our view, it is imperative for the High Court to record its own reasoning however short it might be.”

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18 To the similar effect is the judgment of the Hon’ble Supreme Court in Maya Devi (Dead) through LRs vs. Raj Kumari Batra (Dead) through LRs (2010) 9 SCC 486 , wherein it was held as under:-

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“22. The juristic basis underlying the requirement that Courts and indeed all such authorities, as exercise the power to determine the rights and obligations of individuals must give reasons in support of their orders has been examined in a long line of decisions rendered by this Court. In Hindustan Times Limited v. Union of India & Ors. 1998 (2) SCC 242 the need to give reasons has been held to arise out of the need to minimize chances of arbitrariness and induce clarity.

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28. It is in the light of the above pronouncements unnecessary to say anything beyond what has been so eloquently said in support of the need to give reasons for orders made by Courts and statutory or other authorities exercising quasi-judicial functions. All that we may mention is that in a system governed by the rule of law, there is nothing like absolute or unbridled power exercisable at the whims and fancies of the repository of such power. There is nothing like a power without any limits or constraints. That is so even when a Court or other authority may be vested with wide discretionary power, for even discretion has to be exercised only along well recognized and sound juristic principles with a view to promoting fairness, inducing transparency and aiding equity.”

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19 As noticed above, even the learned first appellate court has also failed to adhere to provisions of Order 41 Rule 31 CPC by ignoring the grounds of appeal as raised by the appellant and has not given any finding on the same, which, in view of this Court, cannot be ignored.

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20 The Hon’ble Supreme Court, while dealing with provisions of Order 41 Rule 31 CPC, in C. Venkata Swamy vs.

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H. N. Shivanna (Dead) by legal representative, (2018) 1 SCC

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604, has held as under:-

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“10. The need to remand the case to the High Court has occasioned for the reason that the Single Judge dismissed the appeals very cursorily and without undertaking any appreciation of evidence, dealing with various issues arising in the case and discussing the arguments raised by the parties in support of their case. In other words, the disposal of the two first appeals could not be said to be in conformity with the requirements of Section 96 read with Order 41 Rule 31 of the Code.

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11. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first Appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first Appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference.

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12. Similarly, the powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue.

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13. As far back in 1969, the learned Judge – V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the Code in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first Appellate Court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned judge held as under:

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“1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.

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2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court.

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3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation…..” (Emphasis supplied)

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14. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal. We consider it apposite to refer to some of the decisions.

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15. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held (at pages 188189) as under:

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“15.……..the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court……while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it…………”

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16. The above view was followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, wherein it was reiterated that sitting as a Court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

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17. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3)

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“3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons.

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Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.”

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18. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code, this Court (at pp. 303-04) observed as follows:

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“2. A court of first appeal can re-appreciate the entire evidence and come to a different conclusion……...”

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19. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:

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“3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:

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(a) the points for determination;

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(b) the decision thereon;

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(c) the reasons for the decision; and

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(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

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4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate

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court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)

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5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.”

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20. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 and Union of India vs. K.V. Lakshman & Ors. (2016) 13 SCC 124.”

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21 The judgments and decrees, as passed by the Courts below are not sustainable. The Courts below have failed to render specific findings on the issue raised by the appellant. The point, as raised by the defendant under Section 76 of the Act, which deals with the maintainability of the suit in the absence of issuance of notice, has not been answered. The same is very material to adjudicate the point in issue.

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22 Consequently, this Court is left with no other option, but to quash and set aside the judgments and decrees as passed by the learned Courts below and remit the case back to the learned trial court by restoring the civil suit to its original number with direction to decide the case afresh by giving findings on all the issues afresh and on the arguments to be raised by the respective parties. Ordered accordingly. Substantial questions of law are answered accordingly.

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23 No other point was raised by the learned counsel for the parties.

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24 This Court hopes and trust that since the dispute pertains to year 2013, an endeavour shall be made by the learned trial court to decide the case expeditiously.

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25 The parties are directed to appear before the learned trial court on 4.6.2026 . It is made clear that no

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separate notice will be issued to the respective parties as the learned counsel for the parties undertake that the parties shall remain present before the learned trial court on aforesaid date.

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26 The instant appeal is allowed in the aforesaid terms. Pending application (s), if any, also stands disposed of, leaving the parties to bear their own costs.

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(Romesh Verma) 5^th May, 2026 Judge (Pankaj)

The Manimahesh Power Project Sahoo v. Hari Singh

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The Manimahesh Power Project Sahoo v. Hari Singh

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