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2014 DIGILAW 1237 (HP)

Gram Panchayat Bhour v. Gian Chand

2014-09-10

RAJIV SHARMA

body2014
JUDGMENT Rajiv Sharma, J. 1. Present revision petition has been filed against the judgment dated 28.6.2014 rendered by learned Additional District Judge Mandi (I), District Mandi, Himachal Pradesh in Civil Appeal No. 5 of 2014. 2. Key facts necessary for adjudication of the present petition are that the respondent-plaintiff (herein after referred to as plaintiff for brevity sake) filed a civil suit No. 130 of 2012 in the Court of Learned Civil Judge (Senior Division) Court No. 1, Sundernagar, District Mandi, against the petitioners/defendants (herein after referred to as defendants for brevity sake) under section 38 and 39 of the Specific Relief Act restraining them from constructing a crematorium from the funds of Gram Panchayat, Bhour, over khasra No. 1407 situated in Muhal Bhour Tehsil Sundernagar, District Mandi, Himachal Pradesh. Plaintiff also filed an application under Order 39 Rules 1 and 2 of the Civil Procedure Code, registered as CMA No. 147-VI/2012 seeking ad-interim injunction till the disposal of the main suit. Written statement was filed by the defendants. Learned trial Court dismissed the application on 13.3.2014. Plaintiff preferred an appeal bearing Civil Appeal No. 5 of 2014 before the learned Addl. District Judge, Mandi, who allowed the same on 28.6.2014. Hence, this petition. 3. I have heard the learned counsel for the parties and also gone through the judgment and order passed by the learned Courts below, carefully. 4. Mr. Varun Rana, Advocate has supported the order passed by learned Civil Judge (Senior Division), Sundernagar. According to him, there was neither any prima facie case nor balance of convenience in favour of the plaintiff. He also contended that a sum of Rs. 35,000/- has already been spent towards the construction of crematorium out of total sanctioned amount of Rs. 3.00 Lakh. 5. According to the Jamabandi, plaintiff is recorded coowner in Khasra No. 1405. Khasra No. 1405 is adjacent to Khasra No. 1407, as per copy of the Aks Musabi. The residential house of the plaintiff is situated near the site where the crematorium is coming up. Mr. Varun Rana, Advocate, submits at the Bar that the crematorium was being constructed at a distance of 100 metres from the residence of the plaintiff. According to the plaintiff, old crematorium existed in a Nallah. Construction of crematorium near the residence of plaintiff is bound to cause nuisance to the plaintiff and his family members. Mr. Varun Rana, Advocate, submits at the Bar that the crematorium was being constructed at a distance of 100 metres from the residence of the plaintiff. According to the plaintiff, old crematorium existed in a Nallah. Construction of crematorium near the residence of plaintiff is bound to cause nuisance to the plaintiff and his family members. Site of crematorium is adjacent to the house of the plaintiff. 6. Learned First Appellate Court has correctly appreciated the evidence. Prima facie case and balance of convenience are in favour of the plaintiff. Plaintiff would suffer irreparable loss and injury if the defendants are not restrained from constructing crematorium adjacent to the house of the plaintiff. 7. In view of the discussion and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending applications, if any, also stand disposed of. No costs.