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2012 DIGILAW 949 (HP)

Meena Kumari v. Laxmi devi and sh. Ashwani kumar

2012-12-06

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. This petition is directed against the order dated 4.4.2012 passed by learned District Judge, Hamirpur in Civil Misc. Application No. 10/2011 (RBT-56/11), setting aside the order dated 22.6.2011 passed by learned Civil Judge (Senior Division), Hamirpur. The facts in brief are that petitioner has filed a suit for permanent prohibitory injunction against the respondents. In brief, the stand of the petitioner is that respondents are raising construction on the suit land in excess of their share. The respondents have contested the suit and denied the claim of the petitioner. The petitioner has filed an application for interim injunction in the trial Court. The respondents also filed an application for vacation of the stay, both the applications were considered by the trial Court and vide order dated 22.6.2011 the application of the respondents for vacation of the stay was rejected whereas the application for interim injunction of the petitioner was allowed. The respondents were directed to maintain status quo qua the suit land with respect to the nature and possession till disposal of the suit. The respondents filed appeal against the order dated 22.6.2011. The learned District Judge allowed the appeal on 4.4.2012 and set aside the order dated 22.6.2011. 2. Heard. The learned counsel for the petitioner has submitted that the trial Court on the basis of material on record had found prima facie case, balance of convenience in favour of the petitioner and trial Court has passed the interim injunction order dated 22.6.2011 but learned District Judge on 4.4.2012 has erred in setting aside the order dated 22.6.2011. It has been submitted that it is in the interest of both the parties to maintain status quo qua the nature and possession of the suit land. On behalf of the respondents, it has been submitted that prima facie the petitioner has no concern with the suit land. The learned District Judge has held that prima facie the land has already been partitioned. The learned counsel for the petitioner has submitted that earlier the matter regarding partition was pending before Divisional Commissioner, Mandi, who has also on 31.8.2012 decided that the land has already been partitioned. It has been stated by learned counsel for the petitioner that petitioner has already challenged the order dated 31.8.2012 before Financial Commissioner. The learned counsel for the petitioner has submitted that earlier the matter regarding partition was pending before Divisional Commissioner, Mandi, who has also on 31.8.2012 decided that the land has already been partitioned. It has been stated by learned counsel for the petitioner that petitioner has already challenged the order dated 31.8.2012 before Financial Commissioner. The application under Order 39 Rules 1 & 2 CPC is to be decided on the basis of prima facie, balance of convenience and irreparable loss, the learned District Judge has held that the prima facie land has already been partitioned. The finding of the learned District Judge of partition of the suit land in the order dated 4.4.2012 is further supported by order of the Divisional Commissioner dated 31.8.2012 who has also held that the land has already been partitioned. In these circumstances, prima facie, no case for interim injunction is made out in favour of the petitioner. Once prima facie case is not found in favour of petitioner then it cannot be said that balance of connivance and irreparable loss are in favour of the petitioner. There is no error of jurisdiction. No case for interference is made out, hence the petition is dismissed, so also the pending application.