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2012 DIGILAW 155 (HP)

Som Nath v. Naresh S/O Jai Singh

2012-04-03

SURINDER SINGH

body2012
ORDER : Surinder Singh, J. By means of the present petition under Article 227 of the Constitution of India, the defendant petitioner seeks to set-aside the judgment/order passed by the learned District Judge, Mandi in Civil Miscellaneous Appeal No. 17 of 2010 decided on 23.8.2011, whereby the respondent-plaintiffs application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was allowed, restraining the defendant-petitioner from raising any sort of construction in the suit land in violation of the compromise decree dated 1.12.1988 by covering whole of the suit land, without leaving the space for 4 feet wide stair-case at the angle of 30o to 45o till the final disposal of the suit while reversing the order of dismissal of the application by the learned trial Court. 2. Pre-admission notice was served upon the respondent and Shri Surinder Saklani, learned counsel has put in appearance on his behalf. 3. Heard and gone through the record. 4. As a matter of fact, the plaintiff-respondent had filed a suit alleging that the suit khasra measuring 47.27 square meters is recorded as gairmumkin shop, whereof the plaintiff is joint owner in possession. It is his case that the predecessor-in interest of the defendant-petitioner Siri Dev was an owner in possession of the land comprised in khasra No.1012/731, measuring 84.24 square meters which was purchased by him from the previous owner Shri Dinesh Kumar. After the death of Siri Dev aforesaid, the petitioner-defendant came in its possession which is adjoining to the suit land. It was further alleged that Jai Singh, predecessor-in-interest of the respondent-plaintiff Naresh Kumar and Shri Yadvinder Kumar, previous owner of the suit land compromised the matter, when it was pending before the learned District Judge in Civil Appeal No.224 of 1986, thus, a compromise-decree dated 1.12.1988 was passed. The plaintiff-respondent got the right to construct the stair-case at 30o to 45o angle, 4 feet in wide to the third storey i.e. second floor of the house of the respondent-plaintiff, thus Mutation No.562 on the basis of compromise decree was accepted and attested by the revenue authorities. Later the defendant-petitioner had purchased the suit land in the year 1988, which was involved in the compromise-decree and the respondent-plaintiff asserted the fact of the compromise decree as binding upon them. 5. Later the defendant-petitioner had purchased the suit land in the year 1988, which was involved in the compromise-decree and the respondent-plaintiff asserted the fact of the compromise decree as binding upon them. 5. Since the defendant-petitioner intended to flout the settled issue in violation of the compromise decree started raising construction, thus sought the relief of permanent prohibitory injunction. 6. The defendant-petitioner resisted and contested the claim of the suit and raised various preliminary objections. The defendant-petitioner further averred that the compromise aforesaid was vague, uncertain and indefinite having no force of law. It was further case of the defendant that Hem Singh appellant before the District Judge in the compromise-decree had received an amount of Rs. 5,000/- from defendant No.2 wherein the plaintiff respondent, his brother Jai Singh agreed to return the aforesaid amount to Hem Singh, who was party to the compromise and allowed the father of the defendant-petitioner to construct the house over the portion left for joint stair-case in Khasra No. 1012/731. 7. In application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, plaintiff-respondent pleaded prima-facie case, balance of convenience and irreparable loss and on the same lines, the application was resisted and contested before the learned trial Court. Learned trial Court dismissed the application and the learned District Judge in appeal reappraised the pleadings of the record in the light of the documents and came to the conclusion that the suit filed by the respondent-plaintiff is not liable to be thrown away at the very thrash-hold, which requires consideration and the contention raised has merits in it. In case, the defendant-petitioner is not restrained it would cause irreparable loss and injury to him. At this stage, there is nothing on record to show by which it can be inferred that the compromise-decree was not acted upon by the parties to the lis, as they are successors-in-interest of the previous parties, who had compounded the matter. Thus, finding a prima-facie case and balance of convenience in favour of the plaintiff, coupled with the fact that in case defendant petitioner is not restrained from raising any sort of construction in the suit land, in violation of the compromise decree by covering whole of the suit land, a serious injury and irreparable loss would be caused to him, as such allowed the application as aforesaid. 8. 8. The contention of the learned counsel for the petitioner herein is that the compromise aforesaid was never acted upon and no serious injury or the irreparable loss would be caused, but he failed to pin-point as to what was the error of jurisdiction or patent illegality in the impugned order, which is otherwise based upon the sound judicial discretion which cannot be lightly interfered with. 9. Since the exercise of jurisdiction under Article 227 of the Constitution of India cannot be exercised like a bull in a China shop to correct all errors of judgment of Court or Tribunal acting within the limits of its jurisdiction, therefore, I do not find any fragrant abuse of fundamental principle of law or justice, thus, the petition is dismissed, in liminie, so also the pending applications, if any.