NIRMLA THAPA AND ANR vs AKSHAY THAPA
- Court
- High Court of Himachal Pradesh
2026:HHC:31518
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
High Court of H.P.
CMPMO No. : 729 of 2025
Reserved On : 13.07.2026
Decided On : 30.07.2026
Uploaded On : 30.07.2026
Nirmala Thapa & Anr. …Petitioners
Versus
Akshay Thapa …Respondent
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
1
Whether approved for reporting?
For the petitioners : Mr. R.K. Gautam, Senior
Advocate, with Mr. Sahil Dixit,
Advocate.
For the respondent : Mr. Ajay Sharma, Senior
Advocate, with Mr. Tarun K.
Brakta, Advocate.
Virender Singh, Judge
The petitioners have filed the present petition
under Article 227 of the Constitution of India, against the
order dated 02.06.2025, passed by the Court of learned
District Judge, Kangra at Dharamshala, District Kangra,
H.P. (hereinafter referred to as ‘the first appellate Court’),
in Civil Misc. Appeal No. 04D/XIV/2024, titled as “Akshay
Thapa Versus Nirmla Thapa & Anr.”.
1
Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
2 2026:HHC:31518
2. By way of order dated 02.06.2025, the learned
High Court of H.P.
first appellate Court has allowed the appeal preferred by
the respondent Akshay Thapa, which, he had preferred
against the order dated 20.01.2024, passed by the Court of
learned Civil Judge, Court No. 1 Dharamshala, District
Kangra, H.P. (hereinafter referred to as ‘the trial Court’), in
CMA No. 20/D/2022 (application under Order 39 Rules 1
and 2 CPC), filed in Civil Suit No. 20/D/2022, titled as
‘Akshay Thapa Versus Nirmla Thapa & Anr.’.
3. By way of order dated 20.01.2024, the learned
trial Court has dismissed the application under Order 39,
Rules 1 and 2 CPC, filed by the respondent, in the above
titled case.
4. For the sake of convenience, the parties to the
present lis, are, hereinafter referred to, in the same
manner, as were, referred to, by the learned trial Court.
5. Brief facts, leading to the filing of the present
petition before this Court, may be summed up, as under:
5.1 Plaintiff Akshay Thapa has filed a suit under
Section 31 of the Specific Relief Act, for cancellation of the
Family Settlement Deed dated 15.02.2021 and for setting
aside Mutation No. 2349 of inheritance dated 12.11.2020
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
3 2026:HHC:31518
and Mutation No. 2377 dated 25.02.2021 attested and
High Court of H.P.
sanctioned on the basis of family settlement deed and to
cancel the Will dated 15.02.2019, which was registered on
15.02.2021, qua the land comprising Khata No. 228,
Khatauni No. 400, Khasra Nos. 1686/358 and 360 (Kitas
2) measuring 000987 hectares, situated at Mohal
Sidhpur, Mauza Khaniyara, Tehsil Dharamshala, District
Kangra, H.P. (hereinafter referred to as ‘the suit land’), by
declaring the family settlement deed and Will as null, void,
ineffective, non est and not binding upon the rights of the
plaintiff. In addition to this, he has also sought the decree
for permanent prohibitory injunction, restraining the
defendants not to alienate the suit land, and not to create
any third party right, changing the nature and possession
of the suit land, in any manner.
5.2 The said suit has been filed, on the ground,
that the father of the plaintiff, namely, Sh. Birender Singh
Thapa, son of Sh. Garv Singh, son of Sh. Kishan Veer, was
owner of the suit land, whereas plaintiff and defendant No.
2 are real brothers and defendant No. 1 is their mother.
The suit land was self acquired property of Sh. Birender
Singh Thapa, upon which, he had raised construction of
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
4 2026:HHC:31518
double storeyed house. All these facts have been pleaded
High Court of H.P.
to demonstrate that defendant No. 1 has no vested right in
the suit land.
5.3 It is the further case of the plaintiff that his
father had executed the Will dated 13.11.2018 in favour of
defendant No. 1, with the condition that she will be the
owner of the suit land, during her life time, however, in the
Will dated 13.11.2018, it was made clear that after the
death of defendant No. 1, the suit land will become the
property of plaintiff and defendant No. 2, in equal shares.
The testator, during his life time, also divided the
residential house by allotting the ground floor to the
plaintiff with equal share in the vacant land. The
predecessorininterest of the parties, expired on
20.01.2020
5.4 It is the further case of the plaintiff that
defendant No. 2, by applying the influence upon defendant
No. 1, got executed the Will dated 15.09.2019, in his
favour, during the life time of Sh. Birender Singh Thapa
and the said Will was got registered on 15.02.2021, i.e.
after two years of its execution. At the time of registration
of this Will, no notice was given to the plaintiff and the Will
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
5 2026:HHC:31518
was wrongly registered in his absence. At the time of
High Court of H.P.
registration of the Will, the Registration Authorities have
not taken into consideration that the Will is dated
15.02.2019 and at that point of time, defendant No. 1 has
no right, title and interest in the suit land.
5.5 Highly relying upon the Will dated 13.11.2018,
by virtue of which, the Will, in favour of defendant No. 1,
was for enjoying the suit land, during her life time without
any right of alienation, a prayer has been made to grant
the relief, as claimed.
5.6 Along with the suit, an application under Order
39 Rules 1 and 2 CPC has also been filed by the plaintiff.
6. When put to notice, the suit, as well as,
application under Order 39 Rules 1 and 2 CPC have been
contested by the defendants.
6.1 Defendant No. 1 has filed her separate written
statement, by taking preliminary objections that the suit is
not maintainable, suit is malafide and the plaintiff has not
approached this Court with clean hands, suit has been
filed just to harass the defendants, suit is premature, as
the plaintiff has no right to challenge the registered Will
dated 15.02.2021, during the life time of defendant No. 1.
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
6 2026:HHC:31518
The registered Will dated 15.02.2021, is a sacred document
High Court of H.P.
and the executor of the said Will is defendant No. 1 herself,
suit is not properly valued for the purpose of Court fees
and jurisdiction, the Civil Court has no jurisdiction, as the
plaintiff has not challenged mutation No. 2349, the plaintiff
is estopped by his own act, conduct, acquiescence and
silence; and plaintiff has no cause of action and locus
standi to file the present suit.
6.2 On merits, the factual position, qua the fact,
that defendant No. 1 had inherited the suit land from her
husband, vide registered Will dated 13.11.2018, which has
not been disputed. However, she had become absolute
owner in possession of the suit land. She had served her
husband during his life time, whereas, the plaintiff was
living outside since 1993. It was only defendant No. 2, who
was serving his parents. The execution of Will in her
favour has been admitted, but no condition has been
imposed in the said Will. Reasserting the fact that she had
inherited the suit land as absolute owner, a prayer has
been made that the Will does not prescribe a restricted
estate in favour of defendant No. 1. It has been asserted
that the suit land was given to defendant No. 1 in lieu of
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
7 2026:HHC:31518
her preexisting right of maintenance. She has also
High Court of H.P.
asserted that she had executed the Will dated 15.02.2021,
in favour of defendant No. 2.
7. Similar stand has been taken by defendant No.
2.
8. Plaintiff filed the replication, denying the
preliminary objections, as well as, the contents of the
written statement.
9. The learned trial Court, vide order dated
20.01.2024, has dismissed the application, by holding that
the plaintiff has miserably failed to establish the prima
facie case, balance of convenience and irreparable loss.
10. The said findings have been assailed by the
plaintiff, by way of Civil Misc. Appeal, before the learned
first appellate Court. The learned first appellate Court,
vide order dated 02.06.2025, has allowed the appeal and
set aside the order passed by learned trial Court and the
application under Order 39 Rules 1 and 2 C.P.C., has been
allowed, restraining the defendants from alienating and
changing the nature of the suit land, during the pendency
of the lis.
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
8 2026:HHC:31518
11. Feeling aggrieved from the order, dated
High Court of H.P.
02.06.2025, present petition has been filed, before this
Court.
12. On the basis of the grounds of appeal, a prayer
has been made to allow the petition, by setting aside the
order passed by the learned First Appellate Court.
13. The learned First Appellate Court, has ordered
the parties to maintain status quo, as referred to above,
whereas, learned trial Court, in the present case has
dismissed the application, under Order 39, Rules 1 and 2
CPC.
14. In this factual background, this Court, while
exercising the supervisory powers, has to consider the fact,
whether the learned trial Court, has rightly exercised, the
jurisdiction vested in it, or exceeded its jurisdiction, under
Order 43, Rule 1, of CPC.
15. Hon’ble Supreme Court, in case, titled as
Ramakant Ambalal Choksi versus Harish Ambalal
Choksi and others , reported in 2024 INSC 913 , has
elaborately discussed the powers of the learned Appellate
Courts, under Order 43 Rule 1 of CPC. Relevant
paragraphs 20 to 32 are reproduced as under:
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
9 2026:HHC:31518
20. Order 43 of the CPC specifies the orders
against which an appeal lies. SubRule (r) of
Rule 1 of the said order provides that an
appeal would lie against an order made under
Rules 1, 2, 2A, 4 and 10 of Order 39 of the
CPC respectively.
High Court of H.P.
21. The law in relation to the scope of an
appeal against grant or nongrant of interim
injunction was laid down by this Court in
Wander Ltd. v. Antox India P. Ltd. reported in
1990 Supp SCC 727. Antox brought an action
of passing off against Wander with respect to
the mark CalDeCe. The trial court declined
Antox’s plea for an interim injunction,
however, on appeal the High Court reversed
the findings of the trial judge. This Court,
upon due consideration of the matter, took
notice of two egregious errors said to have
been committed by the High Court:
a. First, as regards the scope and nature of
the appeals before it and the limitations on
the powers of the appellate court to substitute
its own discretion in an appeal preferred
against a discretionary order; and
b. Secondly, the weakness in ratiocination as
to the quality of Antox’s alleged user of the
trademark on which the passing off action is
founded.
22. With regards to (a), this Court held thus:
“ In such appeals, the appellate court will not
interfere with the exercise of discretion of the
court of the first instance and substitute its
own discretion, except where the discretion
has been shown to have been exercised
arbitrarily or capriciously or perversely, or
where the court had ignored the settled
principles of law regulating grant or refusal of
interlocutory injunctions … the appellate court
will not reassess the material and seek to
reach a conclusion different from the one
reached by the court below … If the discretion
has been exercised by the trial court
reasonably and in a judicial manner the fact
that the appellate court would have taken a
different view may not justify interference
with the trial court’s exercise of discretion.”
23. This Court, while arriving at the above
findings, relied on its earlier judgment in
Printers (Mysore) v Pothan Joseph reported in
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
10 2026:HHC:31518
(1960) SCC Online SC 62 where it was held
thus:
“[...] as has been observed by Viscount Simon
LC in Charles Osenton & Co v Johnston – the
law as to reversal by a court of appeal of an
order made by a judge below in the exercise
of his/her discretion is well established, and
any difficulty that arises is due only to the
application of wellsettled principles in an
individual case.”
High Court of H.P.
24. It is pertinent to note that in Printers
(supra) this Court had held that ignoring
relevant facts is also a ground for interfering
with the discretion exercised by the trial court.
Furthermore, Viscount Simon LC in Charles
Osenton & Co v Johnston reported in 1942
A.C. 130, after stating the above, went on to
quote Lord Wright’s decision in Evans v.
Bartlam reported in 1937 A.C. 473:
“It is clear that the court of appeal should not
interfere with the discretion of a judge acting
within his jurisdiction unless the court is
clearly satisfied that he was wrong. But the
court is not entitled simply to say that if the
judge had jurisdiction and had all the facts
before him, the court of appeal cannot review
his order unless he is shown to have 14
applied a wrong principle. The court must, if
necessary, examine anew the relevant facts
and circumstances in order to exercise a
discretion by way of review which may
reverse or vary the order.”
25. In Evans (supra) case, Lord Wright made
it clear that while adjudicating upon the
discretion exercised by the trial court, the
appellate court is obliged to consider the case
put forward by the appellant in favour of its
argument that the trial court exercised its
discretion arbitrarily or incorrectly in the
circumstances.
26. What flows from a plain reading of the
decisions in Evans (supra) and Charles
Osenton (supra) is that an appellate court,
even while deciding an appeal against a
discretionary order granting an interim
injunction, has to: a. Examine whether the
discretion has been properly exercised, i.e.
examine whether the discretion exercised is
not arbitrary, capricious or contrary to the
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
11 2026:HHC:31518
principles of law; and b. In addition to the
above, an appellate court may in a given case
have to adjudicate on facts even in such
discretionary orders.
High Court of H.P.
27. The principles of law explained by this
Court in Wander’s (supra) have been
reiterated in a number of subsequent
decisions of this Court. However, over a
period of time the test laid down by this Court
as regards the scope of interference has been
made more stringent. The emphasis is now
more on perversity rather than a mere error of
fact or law in the order granting injunction
pending the final adjudication of the suit.
28. In Neon Laboratories Ltd. v. Medical
Technologies Ltd. reported in (2016) 2 SCC
672 this Court held that the Appellate Court
should not flimsily, whimsically or lightly
interfere in the exercise of discretion by a
subordinate court unless such exercise is
palpably perverse. Perversity can pertain to
the understanding of law or the appreciation
of pleadings or evidence. In other words, the
Court took the view that to interfere against
an order granting or declining to grant a
temporary injunction, perversity has to be
demonstrated in the finding of the trial court.
29. In Mohd. Mehtab Khan v. Khushnuma
Ibrahim Khan reported in (2013) 9 SCC 221
this Court emphasised on the principles laid
down in Wander (supra) and observed that
while the view taken by the appellate court
may be an equally possible view, the mere
possibility of taking such a view must not
form the basis for setting aside the decision
arrived at by the trial court in exercise of its
discretion under Order 39 of the CPC. The
basis for substituting the view of the trial
court should be malafides, capriciousness,
arbitrariness or perversity in the order of the
trial court. The relevant observations are
extracted below:
“20. In a situation where the learned trial
court on a consideration of the respective
cases of the parties and the documents laid
before it was of the view that the entitlement
of the plaintiffs to an order of interim
mandatory injunction was in serious doubt,
the Appellate Court could not have interfered
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
12 2026:HHC:31518
with the exercise of discretion by the learned
Trial Judge unless such exercise was found to
be palpably incorrect or untenable. The
reasons that weighed with the learned Trial
Judge, as already noticed, according to us, do
not indicate that the view taken is not a
possible view. The Appellate Court, therefore,
should not have substituted its views in the
matter merely on the ground that in its opinion
the facts of the case call for a different
conclusion. Such an exercise is not the correct
parameter for exercise of jurisdiction while
hearing an appeal against a discretionary
order. While we must not be understood to
have said that the Appellate Court was wrong
in its conclusions what is sought to be
emphasized is that as long as the 16 view of
the trial court was a possible view the
Appellate Court should not have interfered
with the same following the virtually settled
principles of law in this regard as laid down
by this Court in Wander Ltd. v. Antox India (P)
Ltd.”
High Court of H.P.
(Emphasis supplied)
30. This Court in Shyam Sel & Power Ltd. v.
Shyam Steel Industries Ltd. reported in (2023)
1 SCC 634 observed that the hierarchy of the
trial court and the appellate court exists so
that the trial court exercises its discretion
upon the settled principles of law. An
appellate court, after the findings of the trial
court are recorded, has an advantage of
appreciating the view taken by the trial judge
and examining the correctness or otherwise
thereof within the limited area available. It
further observed that if the appellate court
itself decides the matters required to be
decided by the trial court, there would be no
necessity to have the hierarchy of courts.
31. This Court in Monsanto Technology LLC v.
Nuziveedu Seeds Ltd. reported in (2019) 3
SCC 381, observed that the appellate court
should not usurp the jurisdiction of the Single
Judge to decide as to whether the tests of
prima facie case, balance of convenience and
irreparable injury are made out in the case or
not.
32. The appellate court in an appeal from an
interlocutory order granting or declining to
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
13 2026:HHC:31518
grant interim injunction is only required to
adjudicate the validity of such order applying
the well settled principles governing the scope
of jurisdiction of appellate court under Order
43 of the CPC which have been reiterated in
various other decisions of this Court. The
appellate court should 17 not assume
unlimited jurisdiction and should guide its
powers within the contours laid down in the
Wander (supra) case.”
High Court of H.P.
(Self emphasis supplied)
16. Judging the facts and circumstances of the
present case, in light of the decision of Hon’ble Supreme
Court, there is no legal hesitation, for this Court to hold
that the learned first appellate Court, has acted like a trial
Court and has considered the entire case de novo, instead
of recording the findings, upon which, it can be said that
the order passed by the learned trial Court is perverse.
17. The term ‘perverse’ has also been discussed by
the Hon’ble Supreme Court in ‘ Arulvelu and Another
Versus State represented by the Public Prosecutor and
’, reported in
Another (2009) 10 Supreme Court Cases
206 . Relevant paragraphs 22 to 30 of the said judgment
are reproduced, as under:
“22. We have carefully perused the judgment of
the trial court and the impugned judgment of the
High Court. The trial court very minutely
examined the entire evidence and all documents
and exhibits on record. The trial court's analysis
of evidence also seems to be correct. The trial
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
14 2026:HHC:31518
court has not deviated from the normal norms or
methods of evaluation of the evidence. By no
stretch of imagination, we can hold that the
judgment of the trial court is based on no
evidence or evidence which is thoroughly
unreliable and no reasonable person would act
upon it and consequently the judgment of the
trial court is perverse.
High Court of H.P.
23. We also fail to arrive at the conclusion that
the discussion and appreciation of the evidence
of the trial court is so outrageously defies logic
as to suffer from the vice of irrationality
incurring the blame of being perverse and the
findings rendered by the trial court are against
the weight of evidence. The law is well settled
that, in an appeal against acquittal, unless the
judgment of the trial court is perverse, the
Appellate Court would not be justified in
substituting its own view and reverse the
judgment of acquittal.
24. The expression `perverse' has been dealt
with in number of cases. In Gaya Din (Dead)
through LRs. & Others v. Hanuman Prasad
(Dead ) through LRs. & Others, this Court
observed that the expression `perverse' means
that the findings of the subordinate authority are
not supported by the evidence brought on record
or they are against the law or suffer from the
vice of procedural irregularity.
25. In Parry's (Calcutta ) Employees' Union v.
Parry & Co. Ltd. & Others , the Court observed
that `perverse finding' means a finding which is
not only against the weight of evidence but is
altogether against the evidence itself. In Triveni
Rubber & Plastics v. Collector of Central Excise,
Cochin , the Court observed that this is not a
case where it can be said that the findings of the
authorities are based on no evidence or that
they are so perverse that no reasonable person
would have arrived at those findings.
26. In M. S. Narayanagouda v. Girijamma &
Another , the Court observed that any order
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
15 2026:HHC:31518
made in conscious violation of pleading and law
is a perverse order. In Moffett v. Gough, the
Court observed that a perverse verdict may
probably be defined as one that is not only
against the weight of evidence but is altogether
against the evidence. In Godfrey v. Godfrey, the
Court defined `perverse' as turned the wrong
way, not right; distorted from the right; turned
away or deviating from what is right, proper,
correct etc.
High Court of H.P.
27. The expression "perverse" has been defined
by various dictionaries in the following manner:
1. Oxford Advanced Learner's
Dictionary of Current English Sixth
Edition
Perverse: Showing deliberate
determination to behave in a way that
most people think is wrong,
unacceptable or unreasonable.
2. Longman Dictionary of Contemporary
English –
International Edition
Perverse: Deliberately departing from
what is normal and reasonable.
3. The New Oxford Dictionary of English
1998 Edition
Perverse: Law (of a verdict) against the
weight of evidence or the direction of the
judge on a point of law.
4. New Webster's Dictionary of the
English Language (Deluxe Encyclopedic
Edition)
Perverse: Purposely deviating from
accepted or expected behavior or
opinion; wicked or wayward; stubborn;
cross or petulant.
5. Stroud's Judicial Dictionary of Words
& Phrases, Fourth Edition
Perverse: A perverse verdict may
probably be defined as one that is not
only against the weight of evidence but
is altogether against the evidence.
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
16 2026:HHC:31518
28. In Shailendra Pratap & Another v. State of
U.P. , the Court observed thus:
High Court of H.P.
"8. … We are of the opinion that the trial
court was quite justified in acquitting
the appellants of the charges as the
view taken by it was reasonable one
and the order of acquittal cannot be
said to be perverse. It is well settled
that appellate court would not be
justified in interfering with the order of
acquittal unless the same is found to be
perverse. In the present case, the High
Court has committed an error in
interfering with the order of acquittal of
the appellants recorded by the trial
court as the same did not suffer from
the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of
Police & Others , the Court while dealing with
the scope of Articles 32 and 226 of the
Constitution observed as under:
"9. Normally the High Court and this
Court would not interfere with the
findings of fact recorded at the domestic
enquiry but if the finding of "guilt" is
based on no evidence, it would be a
perverse finding and would be
amenable to judicial scrutiny.
10. A broad distinction has, therefore, to
be maintained between the decisions
which are perverse and those which are
not. If a decision is arrived at on no
evidence or evidence which is
thoroughly unreliable and no
reasonable person would act upon it,
the order would be perverse. But if
there is some evidence on record which
is acceptable and which could be relied
upon, howsoever compendious it may
be, the conclusions would not be treated
as perverse and the findings would not
be interfered with."
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
17 2026:HHC:31518
30. The meaning of `perverse' has been
examined in H. B. Gandhi, Excise and Taxation
Officercum Assessing Authority, Karnal &
Others v. Gopi Nath & Sons & Others 1992,
this Court observed as under:
High Court of H.P.
"7. In the present case, the stage at and
the points on which the challenge to the
assessment in judicial review was
raised and entertained was not
appropriate. In our opinion, the High
Court was in error in constituting itself
into a court of appeal against the
assessment. While it was open to the
respondent to have raised and for the
High Court to have considered whether
the denial of relief under the proviso
to Section 39(5) was proper or not, it
was not open to the High Court re
appreciate the primary or perceptive
facts which were otherwise within the
domain of the factfinding authority
under the statute. The question whether
the transactions were or were not sales
exigible to sales tax constituted an
exercise in recording secondary or
inferential facts based on primary facts
found by the statutory authorities. But
what was assailed in review was, in
substance, the correctness as
distinguished from the legal
permissibility of the primary or
perceptive facts themselves. It is, no
doubt, true that if a finding of fact is
arrived at by ignoring or excluding
relevant material or by taking into
consideration irrelevant material or if
the finding so outrageously defies logic
as to suffer from the vice of irrationality
incurring the blame of being perverse,
then, the finding is rendered infirm in
law."
The term “perverse” has duly
been elaborated by the Hon’ble
Supreme Court in ‘ Arulvelu
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
18 2026:HHC:31518
and Another Versus State
represented by the Public
Prosecutor and Another ’,
reported in
(2009) 10 Supreme
Court Cases 206 . Relevant
paragraphs 22 to 30 of the said
judgment are reproduced, as
under:
“22. We have carefully perused the judgment of
the trial court and the impugned judgment of the
High Court. The trial court very minutely
examined the entire evidence and all documents
and exhibits on record. The trial court's analysis
of evidence also seems to be correct. The trial
court has not deviated from the normal norms or
methods of evaluation of the evidence. By no
stretch of imagination, we can hold that the
judgment of the trial court is based on no
evidence or evidence which is thoroughly
unreliable and no reasonable person would act
upon it and consequently the judgment of the
trial court is perverse.
High Court of H.P.
23. We also fail to arrive at the conclusion that
the discussion and appreciation of the evidence
of the trial court is so outrageously defies logic
as to suffer from the vice of irrationality
incurring the blame of being perverse and the
findings rendered by the trial court are against
the weight of evidence. The law is well settled
that, in an appeal against acquittal, unless the
judgment of the trial court is perverse, the
Appellate Court would not be justified in
substituting its own view and reverse the
judgment of acquittal.
24. The expression `perverse' has been dealt
with in number of cases. In Gaya Din (Dead)
through LRs. & Others v. Hanuman Prasad
(Dead ) through LRs. & Others, this Court
observed that the expression `perverse' means
that the findings of the subordinate authority are
not supported by the evidence brought on record
or they are against the law or suffer from the
vice of procedural irregularity.
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
19 2026:HHC:31518
25. In Parry's (Calcutta ) Employees' Union v.
Parry & Co. Ltd. & Others , the Court observed
that `perverse finding' means a finding which is
not only against the weight of evidence but is
altogether against the evidence itself. In Triveni
Rubber & Plastics v. Collector of Central Excise,
Cochin , the Court observed that this is not a
case where it can be said that the findings of the
authorities are based on no evidence or that
they are so perverse that no reasonable person
would have arrived at those findings.
High Court of H.P.
26. In M. S. Narayanagouda v. Girijamma &
Another , the Court observed that any order
made in conscious violation of pleading and law
is a perverse order. In Moffett v. Gough, the
Court observed that a perverse verdict may
probably be defined as one that is not only
against the weight of evidence but is altogether
against the evidence. In Godfrey v. Godfrey, the
Court defined `perverse' as turned the wrong
way, not right; distorted from the right; turned
away or deviating from what is right, proper,
correct etc.
27. The expression "perverse" has been defined
by various dictionaries in the following manner:
1. Oxford Advanced Learner's
Dictionary of Current English Sixth
Edition
Perverse: Showing deliberate
determination to behave in a way that
most people think is wrong,
unacceptable or unreasonable.
2. Longman Dictionary of Contemporary
English –
International Edition
Perverse: Deliberately departing from
what is normal and reasonable.
3. The New Oxford Dictionary of English
1998 Edition
Perverse: Law (of a verdict) against the
weight of evidence or the direction of the
judge on a point of law.
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
20 2026:HHC:31518
4. New Webster's Dictionary of the
English Language (Deluxe Encyclopedic
Edition)
Perverse: Purposely deviating from
accepted or expected behavior or
opinion; wicked or wayward; stubborn;
cross or petulant.
High Court of H.P.
5. Stroud's Judicial Dictionary of Words
& Phrases, Fourth Edition
Perverse: A perverse verdict may
probably be defined as one that is not
only against the weight of evidence but
is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of
U.P. , the Court observed thus:
"8. … We are of the opinion that the trial
court was quite justified in acquitting
the appellants of the charges as the
view taken by it was reasonable one
and the order of acquittal cannot be
said to be perverse. It is well settled
that appellate court would not be
justified in interfering with the order of
acquittal unless the same is found to be
perverse. In the present case, the High
Court has committed an error in
interfering with the order of acquittal of
the appellants recorded by the trial
court as the same did not suffer from
the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of
Police & Others , the Court while dealing with
the scope of Articles 32 and 226 of the
Constitution observed as under:
"9. Normally the High Court and this
Court would not interfere with the
findings of fact recorded at the domestic
enquiry but if the finding of "guilt" is
based on no evidence, it would be a
perverse finding and would be
amenable to judicial scrutiny.
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
21 2026:HHC:31518
10. A broad distinction has, therefore, to
be maintained between the decisions
which are perverse and those which are
not. If a decision is arrived at on no
evidence or evidence which is
thoroughly unreliable and no
reasonable person would act upon it,
the order would be perverse. But if
there is some evidence on record which
is acceptable and which could be relied
upon, howsoever compendious it may
be, the conclusions would not be treated
as perverse and the findings would not
be interfered with."
High Court of H.P.
30. The meaning of `perverse' has been
examined in H. B. Gandhi, Excise and Taxation
Officercum Assessing Authority, Karnal &
Others v. Gopi Nath & Sons & Others 1992,
this Court observed as under:
"7. In the present case, the stage at and
the points on which the challenge to the
assessment in judicial review was
raised and entertained was not
appropriate. In our opinion, the High
Court was in error in constituting itself
into a court of appeal against the
assessment. While it was open to the
respondent to have raised and for the
High Court to have considered whether
the denial of relief under the proviso
to Section 39(5) was proper or not, it
was not open to the High Court re
appreciate the primary or perceptive
facts which were otherwise within the
domain of the factfinding authority
under the statute. The question whether
the transactions were or were not sales
exigible to sales tax constituted an
exercise in recording secondary or
inferential facts based on primary facts
found by the statutory authorities. But
what was assaile.
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
22 2026:HHC:31518
18. Similar view has again been taken by the
High Court of H.P.
Hon’ble Supreme Court in ‘ S.R. Tewari Versus Union of
, reported in
India and Another’ (2013) 6 Supreme Court
. Relevant paragraph 30 of the said judgment is
Cases 602
reproduced, as under:
“30. The findings of fact recorded by a court can
be held to be perverse if the findings have been
arrived at by ignoring or excluding relevant
material or by taking into consideration
irrelevant/inadmissible material. The finding
may also be said to be perverse if it is “against
the weight of evidence”, or if the finding so
outrageously defies logic as to suffer from the
vice of irrationality. If a decision is arrived at on
the basis of no evidence or thoroughly unreliable
evidence and no reasonable person would act
upon it, the order would be perverse. But if there
is some evidence on record which is acceptable
and which could be relied upon, the conclusions
would not be treated as perverse and the
findings would not be interfered with.
(Vide: Rajinder Kumar Kindra v. Delhi
Administration , Kuldeep Singh v. Commissioner
of Police & Ors. , Gamini Bala Koteswara Rao &
Ors. v. State of Andhra Pradesh thr. Secretary
and Babu v. State of Kerala ).”
19. Even otherwise, the expression ‘perverse’ has
deliberately been explained, by the Hon’ble Supreme Court
in case, titled as Ramakant Ambalal Choksi’s case
(supra). Relevant paragraphs 35 to 37, of the judgment,
are reproduced, as under:
“35.Any order made in conscious violation
of pleading and law is a perverse order. In
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
23 2026:HHC:31518
Moffett v. Gough reported in (1878) 1 LR 1r
331, the Court observed that a perverse
verdict may probably be defined as one that
is not only against the weight of evidence
but is altogether against the evidence. In
Godfrey v. Godfrey reported in 106 NW 814,
the Court defined “perverse” as “turned the
wrong way”; not right; distorted from the
right; turned away or deviating from what
is right, proper, correct, etc.
High Court of H.P.
36.The expression "perverse" has been
defined by various dictionaries in the
following manner:
a. Oxford Advanced Learner's Dictionary of
Current English, 6th Ed. PerverseShowing
deliberate determination to behave in a way
that most people think is wrong,
unacceptable or unreasonable.
b. Longman Dictionary of Contemporary
English International Edition Perverse
Deliberately departing from what is normal
and reasonable.
c. The New Oxford Dictionary of English
1998 Edition Perverse Law (of a verdict)
against the weight of evidence or the
direction of the judge on a point of law.
d. New Webster's Dictionary of the English
Language (Deluxe Encyclopedic Edition)
Perverse Purposely deviating from
accepted or expected behavior or opinion;
wicked or wayward; stubborn; cross or
petulant.
e. Stroud's Judicial Dictionary of Words &
Phrases, 4th Ed. Perverse A perverse
verdict may probably be defined as one that
is not only against the weight of evidence
but is altogether against the evidence.
37.The wrong finding should stem out on a
complete misreading of evidence or it should
be based only on conjectures and surmises.
Safest approach on perversity is the classic
approach on the reasonable man’s inference
on the facts. To him, if the conclusion on the
facts in evidence made by the court below is
possible, there is no perversity. If not, the
finding is perverse. Inadequacy of evidence
or a different reading of evidence is not
perversity. (See: Damodar Lal v. Sohan Devi
and others reported in (2016) 3 SCC 78)”
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
24 2026:HHC:31518
High Court of H.P.
20. In this case, an application under Order 39
Rules 1 and 2 CPC, moved by the plaintiff Akshay Thapa,
was dismissed by the learned trial Court, however, the
learned first appellate Court has allowed the said
application.
21. Plaintiff Akshay Thapa in the suit has
challenged the Will dated 15.02.2019, executed by
defendant No. 1 in favour of defendant No. 2. The
document i.e. Will, will come into play after the death of
the testator/executor of the Will, as the case may be.
When defendant No. 1 is alive, then, how the plaintiff can
seek the relief of cancellation of the Will dated 15.02.2019,
allegedly executed by defendant No. 1 in favour of
defendant No. 2. The learned trial Court, in the present
case, has rightly considered the stand of defendant No. 1.
22. Moreover, the suit of the plaintiff is not
maintainable qua the challenge to Will dated 15.02.2019,
during the life time of defendant No. 1.
23. The copy of the Will, which is stated to be
executed by the father of the plaintiff i.e. Sh. Birender
Singh Thapa, has also been annexed with the petition, in
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
25 2026:HHC:31518
which, the testator has expressed his intention that after
High Court of H.P.
his death, two storeyed building is to be given to both his
sons in equal share, whereas in the opening lines, he has
bequeathed his entire estate in favour of defendant No. 1.
In such situation, the plaintiff has to prove before the
learned trial Court that the limited estate was given to
defendant No. 1 or the intention of the testator was
otherwise.
24. These complicated questions cannot be decided
in the proceedings, under Order 39 Rules 1 and 2 CPC, as
such, learned first Appellate Court has exceeded its
jurisdiction by giving the findings qua interpretation of the
clauses of the Will, which is the sole domain of learned trial
Court, that too, at the time of deciding the suit, as
instituted by the plaintiff.
25. In view of the above, this Court is of the view
that the learned first appellate Court has exceeded its
jurisdiction by allowing the appeal, as, at the time of
deciding the appeal, the learned first appellate Court was
not exercising the power of trial Court, nor the findings
have been recorded by learned first appellate Court that
the decision of learned trial Court suffers from perversity,
::: Downloaded on - 30/07/2026 13:08:13 :::CIS
26 2026:HHC:31518
which is liable to be interfered with. In such situation, the
High Court of H.P.
order passed by the learned first appellate Court is not
sustainable in the eyes of law.
26. Consequently, the present appeal is allowed, as
prayed for. The application under Order 39 Rules 1 and 2
CPC, filed by the plaintiff is ordered to be dismissed. The
order passed by the learned First Appellate Court is set
aside and the order passed by the learned trial Court is
ordered to be restored.
27. Any of the observations, made hereinabove,
shall not be taken, as an expression of opinion, on the
merits of the case, as these observations are confined, only
to the disposal of the present petition.
28. Pending application(s), if any, shall also stand(s)
disposed of.
29. Record be sent back.
(Virender Singh)
th
30 July, 2026 Judge
( Pramod Kumar )
::: Downloaded on - 30/07/2026 13:08:13 :::CIS