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2012 DIGILAW 98 (HP)

Jeewan Kumar v. Raman Kumar

2012-03-16

SURINDER SINGH

body2012
JUDGEMENT Surinder Singh, Judge. The present petition has been preferred under Article 227 of the Constitution of India by the defendant in Civil Suit No. 141 of 2010 titled Raman Kumar versus Jeewan Kumar, pending before he Civil Judge (Jr. Division) Court No. 1 Amb, District Una, H.P. with the prayer to set aside the order of the learned District Judge passed in Civil Miscellaneous Appeal No. 29-XIV/201 1 decided on 20.8.2011 whereby he affirmed the order passed by the learned trial Court under Order 39 Rules 1 and 2 of the Code of Civil Procedure, restraining the petitioner herein by way of ad interim injunction from taking forcible possession, disconnecting the electric wire from the tube-well and forcibly locking the tube-well existing over the suit land till final disposal of the main suit. 2. Precisely the case of the plaintiff-respondent has been that his predecessor-in-interest had installed a tube-well over some part of the suit land and also got an electric meter. He raised poly-house to improve his financial condition but the defendant- petitioner felt envious, forcibly locked the tube-well and started causing interference in the land of plaintiff which had fallen in his share. An application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was also moved for ad interim injunction pleading prima facie case, balance of convenience and irreparable loss. 3. The suit and the application both were contested by defendant-petitioner. According to him suit land is joint inter se the parties and also that boarding, lodging and cultivation of the land is separate for the last about 30 years. It is averred that the tube-well was constructed with joint funds in the year 1970. In a family arrangement despite suit land being joint, was separately cultivated and he paid the money and owned tube-well exclusively. He had installed electric meter and room remained under his lock and key but the plaintiff-respondent used to irrigate his land after getting the consent of the defendant-petitioner only. 4. In a family arrangement despite suit land being joint, was separately cultivated and he paid the money and owned tube-well exclusively. He had installed electric meter and room remained under his lock and key but the plaintiff-respondent used to irrigate his land after getting the consent of the defendant-petitioner only. 4. The learned trial Court took cognizance of the pleadings and the documents attached thereto coupled with the report of Local Commissioner and the rough diagram dated 9.8.2010 wherein he pointed out that there have been two electric connections taken from the main line and the meter as well as the board were found locked in a room by the petitioner herein, therefore, held that the plaintiff-respondent has prima facie case and balance of convenience in his favour, also observed that the denial of interim relief would cause irreparable loss, thus defendant-petitioner was retrained as aforesaid. 5. The learned District Judge re-examined the impugned order in the light of the record and did not find any fault therein as such dismissed the appeal. 6. It is well settled by now that an order under Order 39 Rules 1 and 2 is absolutely discretionary based upon the facts and circumstances of each case but discretion has to be exercised judiciously on well settled legal parameters. Such a discretion cannot be interfered with, even at the appellate stage in appeal solely on the ground that if it had considered the matter at the trial stage, in a particular way, it may have come to the contrary occlusion, if seen from a different angle. 7. The learned Sr. counsel duly assisted for the petitioner argued that the learned trial Court did not appreciate the pleadings in the right perspective thus committed jurisdictional error. It is also argued that the respondent may use the water of the tube-well without using the electric meter installed by the petitioner by any other mode. But causing interference to the structure where the meter is installed would cause material prejudice to him. 8. The trial of the case on the disputed issues is going on. Parties would lead evidence in support of their case but the learned counsel failed to satisfy what is the comparative mischief or any jurisdictional error or any illegality for its interference by this Court to correct the same to his benefit under Article 227 of the Constitution. 9. The trial of the case on the disputed issues is going on. Parties would lead evidence in support of their case but the learned counsel failed to satisfy what is the comparative mischief or any jurisdictional error or any illegality for its interference by this Court to correct the same to his benefit under Article 227 of the Constitution. 9. The apex Court in Jai Singh and others versus Municipal Corporation of Delhi and another (2010) 9 SCC 385 held that the The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. It is also held that the High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. It further says that the High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a ‘bull in a china shop’, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 10. Applying the aforesaid principle of law inthe present case, I do not find any error in the impugned order passed by the Courts below. Therefore, it requires no interference except and to the extent that both the parties to the present uis shall share the energy bill for running the tube-well to the extent of equal share. Therefore, the impugned order stands modified to the above extent. 11. However, any observation contained herein above shall not affect the case on merits. The petition stands disposed of so also the pending applications, if any.