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2010 DIGILAW 259 (PNJ)

Ram Parshad v. Chaman Lal

2010-01-12

VINOD K.SHARMA

body2010
Judgment VINOD K. SHARMA, J. 1. For the reasons stated in the application, C. M. is allowed, the order dated 9.11.2009 is recalled and the case is restored to its original number. C. M. No.24202-CII of 2009 2. For the reasons stated in the application, C. M. is allowed, the applicant / petitioner is exempted from filing the certified copies of annexures P-1 to P-4. 3. This revision petition is directed against the order dated 25.8.2008 passed by the learned executing Court vide which application moved by the petitioner under Order 21 Rule 32, read with Order 39 Rule 2-A of the Code of Civil Procedure for prosecuting the defendant / respondents for violating the injunction order passed by the learned Court, stands dismissed. 4. The learned executing Court recorded the following finding to non suit the petitioner :- "after hearing learned counsel for the parties and going through the record the case, I am convinced with the arguments advanced by the learned counsel for the respondents. Name of Gohria is nowhere mentioned that he was ever present at the spot. Moreover, the photographs Mark E to J are self contradictory to the contentions of the petitioners. A concrete floor does not seem to be constructed by the respondent as it is a public road. Defendants have no concern with the property in dispute. The witnesses seem to be procured ones. There is nothing on the file to show that the property in dispute was ever demolished by the respondents. Evidence regarding complete demolition of the boundary wall of the plot in question on 5.11.2006 is actually beyond pleadings and can not be taken into consideration. Keeping in view all the circumstances, this issue is decided against the applicant and in favour of the respondents. " 5. Thus, on appreciation of evidence, a positive finding was recorded by the learned executing Court that the respondents have not violated the injunction order granted in favour of the petitioner, as the stand of the respondents is that they have no concern with the land in dispute. 6. The petitioner also failed to prove, that the alleged demolition of one feet wall, was by the respondent / defendants. The evidence led being contradictory and also beyond pleadings, was not accepted by the learned executing Court. 7. 6. The petitioner also failed to prove, that the alleged demolition of one feet wall, was by the respondent / defendants. The evidence led being contradictory and also beyond pleadings, was not accepted by the learned executing Court. 7. The learned counsel for the petitioner contends that the petitioner has been non-suited merely by holding that he was not owner of the property in dispute in spite of the fact that there was a decree in favour of the petitioner. 8. This contention of the learned counsel for the petitioner is totally misconceived. The finding recorded by the learned executing Court to non-suit the petitioner, on appreciation of evidence is that the plaintiff / petitioner failed to prove that there was any violation of injunction order by the defendant / respondent. The findings are based on appreciation of evidence, which can not be said to be perverse, nor any other view was possible on appreciation of evidence. 9. No ground for interference is made out. Dismissed.