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2009 DIGILAW 430 (PNJ)

Narender Walia v. Subhash Chand Joshi

2009-03-03

MAHESH GROVER

body2009
JUDGMENT Mahesh Grover, J.:- C.M.No.7525-C of 2007 has been filed under the provisions of Rule 2 of Part C of Chapter-I of Volume-5 of the Rules and Orders of the Punjab and Haryana High Court with a prayer to grant permission to the applicants-appellants to file the accompanying appeal (i.e. R.S.A.No.2700 of 2007) against the judgments and decrees dated 4.10.2006 and 12.1.2007 passed respectively by the Additional Civil Judge (Senior Division), Patiala (hereinafter described as ‘the trial Court’) and the Additional District Judge, Patiala (referred to hereinafter as ‘the First Appellate Court’) whereby the suit applicant/respondent no.1 was partly decreed and his appeal was accepted decreeing the suit in toto. 2. Concededly, the applicants were not a party to the proceedings before the Courts below and, therefore, have resorted to the aforesaid provisions of law. 3. Before adverting to the instant application, the facts may be noticed in brief. 4. The non-applicant filed a suit, against the Municipal Committee, Sanaur and its Executive Officer for permanent and mandatory injunction. The defendants in the suit were sought to be restrained from interfering or causing to interfere or demolishing or causing to demolish the property in peaceful possession of the non-applicant which was situated in Arya Smaj Mohalla, Sanaur and was marked as ABCD in the site plan attached with the plaint, which was amended later on. It was further prayed that the defendants be directed to restore the suit property to its original condition as it was on the date of the filing of the suit, i.e., to restore the Chabutra 6' wide and the other space of 4' – 10" up to the door of the room of the school building and also to remove the drain constructed by them during the pendency of the proceedings. It was pleaded that the property as described in the plaint was owned and possessed by Smt.Jaswanti Devi, mother of the non-applicant and after her death, he was in possession thereof being one of his legal heirs. A school was set up by the wife of the non-applicant on the said property and the portion shown in red colour in the site plan was being used as cycle stand for the students. A school was set up by the wife of the non-applicant on the said property and the portion shown in red colour in the site plan was being used as cycle stand for the students. It was alleged that at the behest of one Mohinder Pal son of Ishri Prasad, with whom the non-applicant was having a long standing litigation, the authorities of Municipal Committee, Sanaur issued a notice under Section 172 of the Punjab Municipal Act requiring him to demolish a portion of his property, more particularly the portion shown in the red in the site plan. A reply was submitted by the non-applicant, but despite the same being satisfactory, the matter was not consigned by the Municipal Committee for the reason that Mohinder Pal was exercising undue influence over its officials and staff and was bent upon in getting the wall demolished. In the amended plaint, it was averred by the non-applicant that the Municipal committee had demolished the Chabutra and has used the debris for laying down a drain adjoining to the walls of the room of the school even though the entire construction was raised in accordance with the sanctioned site plan. 5. After giving an opportunity to both the parties, the suit of the non-applicant was partly decreed by the trial Court. 6. Dis-satisfied with the judgment of the trial Court, the nonapplicant filed an appeal which was accepted by the First Appellate Court and his suit was decreed in toto. 7. The applicants, as noticed above, were not party to the suit and have, therefore, filed the instant application for grant of permission to challenge the findings of the Courts below by way of the Regular Second Appeal. 8. In the reply filed by the non-applicant, it was averred in paragraphs 2, 3 and 5 of the preliminary objections that the applicants are the nephews of Mohinder Pal, who had earlier filed an application under Order 1 Rule 10 of the C.P.C. during the pendency of the suit which was declined by the trial Court and the revision against such rejection was also dismissed. Reference was also made to the long standing enmity between the parties to contend that the present application is misconceived. 9. Reference was also made to the long standing enmity between the parties to contend that the present application is misconceived. 9. It is pertinent to mention here that Municipal Committee, Sanaur and its Executive Officer have preferred a separate appeal, being R.S.A. No.2102 of 2007 against the judgments of the Courts below. However, that appeal has been dismissed today vide a separate order for want of prosecution as none had appeared therein for the appellants despite the fact that the same was taken up several times during the course of the day. 10. Learned counsel for the applicants has contended that since the interest of the applicants are affected by the impugned judgments and decrees, they are entitled to challenge the same by way of filing a Regular Second Appeal. 11. On the other hand, learned counsel for the non-applicant contended that the present application is not at all maintainable. He drew the attention of the Court to the finding recorded by the Courts below regarding the established enmity of Mohinder Pal with the non-applicant which is evident from paragraph 9 of the judgment of the First Appellant Court and the relevant portion of the same reads as under:- “..... The second witness examined by the defendants is Mohinder Pal, who admitted in cross-examination that his family has enmity with the plaintiff since the year 1969-70, as his brother Satpal and father Ishwari Parshad were convicted by the criminal court on the complaint of the plaintiff for offence under Sections 452/324 and 323 of IPC. Therefore, the allegation of the plaintiff that Mohinder Pal being aggrieved by the said fact is behind the entire show of the defendants, cannot be ruled out. Even Mohinder Pal, who has old enmity with the plaintiff, produced the site plan, Mark D3, pertaining to the house of the plaintiff, wherein the said vacant space 4' 10” is shown. The platform as alleged by the plaintiff is also shown and beyond that there is a street in front of the platform. He stated that he got the copy of the site plan, Mark D3, from the office of Sub Registrar, Patiala. He admitted that Municipal Committee, Sanaur laid pucca brick flooring in the street in front of the house of Jaswanti devi, in the year 2001. Again said concrete flooring has been laid by the Municipal committee, Sanaur. He stated that he got the copy of the site plan, Mark D3, from the office of Sub Registrar, Patiala. He admitted that Municipal Committee, Sanaur laid pucca brick flooring in the street in front of the house of Jaswanti devi, in the year 2001. Again said concrete flooring has been laid by the Municipal committee, Sanaur. The judgment of the appellate court against the father and brother of said Mohinder Pal is Mark P13.” 12. I have thoughtfully considered the rival contentions and have perused the record. 13. As seen above, the dispute of the non-applicant was with the Municipal Committee, Sanaur and he had successfully filed a suit against it for redressal of his grievance. The applicants have not been able to show as to how their interest has arisen in the suit property as it was a case of the non-applicant that the property belonged to his wife upon which she had constructed a school in accordance with the plans sanctioned by the Municipal Committee and the only dispute was regarding the area which was shown in red in the site plan, which was being used for parking by the students. In view of the fact that no material has been shown to this Court as to what interest the applicants have in the property either before filing the suit or after the passing of the decrees, the provisions of law on which reliance has been placed, are not attracted at all. 14. That apart, it is implicit from the record that the present applicants are nephews of Mohinder Pal which fact has not been denied by the applicants and Mohinder Pal had appeared as a witness and affirmed that he had long standing enmity with the non-applicant. 15. All these factors when cumulatively taken together lead to an irresistible conclusion that the present application is completely misconceived and is liable to be dismissed. Ordered accordingly. Consequently, the appeal is also dismissed. --------------