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2001 DIGILAW 943 (RAJ)

Rishi Das v. Munni

2001-05-24

MOHD.YAMIN

body2001
JUDGMENT 1. - This is a revision petition by the petitioners, who were unsuccessful before the two courts below and have invoked the jurisdiction of this Court Under section 115 of the Code of Civil Procedure. 2. I have heard learned counsel for both the parties. 3. A suit for permanent injunction is pending before the learned Civil Judge (Jr. Division), Jaipur (West) in which it has been averred that there existed a Haveli, details of which are given in para No. 2 of the plaint. There existed a well in common chowk in the Haveli and its water was used in order to worship Thakurji. There also existed a boring on which the plaintiff-petitioners had spend money and no object was raised by the defendant-respondents. It was further averred that the water coming from the boring was being used by the petitioner-plaintiffs while the water of the well was used for worship of Thakurji as the plaintiffs belonged to Ballabh Sampradaya. This practice was going on for the last 50 years. Now the level of sub-soil water has decreased and the water of the well was not sufficient for the purpose of worshiping. An application was moved under Order 39 Rule 1 & 2 CPC that the plaintiff-petitioners wanted to do boring in the well which was existing since 1980. In reply it was submitted that on earlier occasion a Suit No. 282/97 Munni Devi v. Rishi Das was filed in which the plaintiffs were bound down that they would not change the condition of the chowk. It was further averred that in that suit also a similar application was moved which was rejected and hence there was a bar of res judicata. It was also pleaded that the application was also barred under Order 2 Rule 2 CPC. It was further pleaded that when on earlier occasion boring was made it was objected to and at that time plaintiff-petitioners had assured that the water would be used only for the purpose of worshiping Thakurji but they started using the water from the boring for their own purpose. When there already existed a boring, there was no necessity to have a second boring. It was also averred that the well was constructed without their consent. When there already existed a boring, there was no necessity to have a second boring. It was also averred that the well was constructed without their consent. It was also pleaded that since the chowk was joint, there was possibility of the damage to the property because of the boring of the well and that the plaintiff-petitioners had no right to change the condition of the joint chowk. The learned trial court did admit that there was no question of res Judicata as it does not apply to interlocutory orders. This view is based on Sudhir Kumar Das & Ors. v. Amitava Dhar, AIR 1983 Gauhati 52 . But the question which was considered was that admittedly the chowk was joint and in case the application is allowed the respondents would be deprived of proper use of the chowk which was joint. It was decided that since boring already existed in the chowk and it was never averred that its water was not sufficient, permission to have another boring could not be granted and as no prima facie case was made out and there was no balance of convenience in favour of the petitioner-plaintiffs as well as there is no irreparable injury to them. An appeal was filed against this order and the appellate court also dismissed the appeal. 4. Learned counsel for the petitioners submitted that even if there is concurrent findings, interference in revisional jurisdiction is justified when the findings suffer from inherent defects. Vinod Kumar Arora v. Smt. Surjit Kaur, AIR 1987 SC 2179 has been relied upon. He also cited Sita Ram & Ors. v. Smt. Bhori Devi & Anr., WLC (Raj.) 1994 (3) 15 and submitted that the present case is covered under this citation. The facts of Sita Ram's case (supra) are that a compromise took place in appeal between the parties according to which chowk, gate, stair case. chabutra and latrine were held to be joint and it was decided that the parties would use them in a proper way so that other owners may not be disturbed. The facts of Sita Ram's case (supra) are that a compromise took place in appeal between the parties according to which chowk, gate, stair case. chabutra and latrine were held to be joint and it was decided that the parties would use them in a proper way so that other owners may not be disturbed. When the plaintiffs wanted to fix a boring in the common courtyard, then a suit was filed and an application for temporary injunction was also preferred and it was submitted on behalf of the defendants that in case boring is allowed to be fixed in the chowk it would cause nuisance and was prayed that boring may not be fixed in the common courtyard but since the boring was already fixed and the water level had, gone down and oily motor was remaining to be fixed it was allowed in the revisional jurisdiction to complete the work. The submission of learned counsel for the petitioners that this case is fully applicable to the present one is not correct as the case is different on facts. In the case in hand there is already a well as well as a boring fixed. His submission that the water coming from the well or the boring could not be used for the worship of Thakurji is not based on any evidence and admittedly in case a fresh boring is allowed to be fixed in the common courtyard, it may amount to nuisance as submitted by the learned counsel for the petitioners. Sita Ram's case (supra) is not applicable on facts. 5. Learned counsel for the respondents cited George @ Saji & Anr. v. Bhaktawarlal, (WLC (Raj.) 2000 (1) 248 in which it has been observed that no fresh injunction can be granted on same facts which were in existence at the time of passing earlier order of injunction by the trial court which were affirmed in appeal. He also cited T.A. George & Anr. v. D.D.A. & Ors., AIR 1995 Delhi 131 in which it has been observed that the temporary injunction is a equitable relief and can be refused if party does not approach Court with clean hands and even it there is satisfaction of one out of 3 conditions for grant of injunction, temporary injunction cannot be granted. He also cited Satyadhyan Ghosal & Ors. He also cited Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., AIR 1960 SC 941 in which principle of res judicata was considered in para Nos. 7 & 8 and it has been observed that the principle of res judicata is based on the need of giving a finality to judicial decisions. Primarily it applies as between past litigation and future litigation. Taking benefit of this citation, it has been submitted that on earlier occasion such as application as the present one was dismissed, therefore second application was barred by res judicata. M/s. Gujarat Bottling Co. Ltd. & Ors. v. Coca Cola Company & Ors., AIR 1995 SC 2372 has also been cited in which it has been observed that interlocutory injunction is purely equitable relief and the conduct of the party seeking injunctions should free from blame. In these citations, the basic principles have been reiterated which I have considered in this matter. 6. Of course, when the finding suffers from inherent defects, this Court can interfere in the revisional jurisdiction in view of Vinod Kumar's case (supra) cited by the learned counsel for the petitioners but I find that there is no such defect in the finding which is based on the evidence and cogent reasons. I do not find any cogent reason to interfere in the order of the learned Appellate Judge. 7. Consequently, this revision petition has no force and it is hereby dismissed. The trial court is directed to decide the suit expeditiously. No order as to costs.Revision dismissed. *******