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2014 DIGILAW 464 (HP)

Jaram Singh~ v. Narad

2014-04-25

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. This petition, under Article 227 of the Constitution of India read with section 151 CPC has been preferred by the plaintiff-petitioner for setting aside the order passed by learned District Judge, Chamba on 25.7.2013 in Application No. 7 of 2012, whereby he affirmed the order passed by learned Civil Judge (Sr. Division), Chamba in Civil Misc. Appl. No. 44/12 on 23.11.2012. 2. The facts, as necessary for determination of the present case, are that plaintiff- petitioner filed a suit for permanent prohibitory injunction as well as mandatory injunction restraining the respondents- defendants from raising construction of toilet and bath room over the dry-pit constructed by them on the land comprised in khewat khatoni No. 55/69, khasra No. 281 abutting to the house and kitchen of the plaintiff -petitioner constructed over the land comprised in khewat khatoni No. 22/24, khasra No. 282, measuring 00-06-00 Bighas situated in Mauza Sohi, Pargana Kohal, Tehsil Churah, District Chamba and from using the pit as a septic tank for discharge of sewer, waste and filthy water of their toilet and latrine as the same would cause damage and create nuisance to the property of plaintiff and a prayer was made that respondents be restrained from constructing the toilet and latrine over the pit and the respondents be further restrained from discharging any dirty and filthy water. Alongwith the suit, an application under Order 39, Rules 1 & 2 CPC with the same prayers as in the main suit was also preferred. 3. The respondents- defendants have filed reply to this application and stated therein that respondents had constructed the pit in the year 2008 when the plaintiff- petitioner had constructed his kitchen. It was denied that pit had been constructed just above the land and kitchen of the plaintiff and it was claimed that same in fact is outside the land of the petitioner and there is a distance of six feet between the land of the plaintiff- petitioner and the pit of the respondents. The factum of discharging filthy water of their house and kitchen into the said pit was also denied. It was also denied that water from the pit was seeping into the walls of the kitchen belonging to the plaintiff- petitioner. The factum of discharging filthy water of their house and kitchen into the said pit was also denied. It was also denied that water from the pit was seeping into the walls of the kitchen belonging to the plaintiff- petitioner. It was averred that as a matter of fact the petitioner wanted to obtain passage through the land of the respondents in khasra No. 281 and therefore, had filed this false and frivolous suit. Above the land of the respondents comprised in khasra No. 281, it was alleged that there exists khasra No. 280, which is a common passage and above khasra No. 280 there exists old house of the petitioner’s brother Bainsu Ram alongwith other persons. It was alleged that there was a drain of 5-6 fit in width, which starts from Panihar (water source) and passes through the village and houses of aforesaid persons and below that through the passage comprised in khasra No. 280 and below that the land and over the pit of the respondents comprised in khasra No. 281 and then through the pucca drain, which has been constructed by the petitioner behind his house and thereafter finally to the fields of Gurdhian and Chetu etc. It was further stated that water of Panihar (water source) and the houses of the villagers and plaintiff passes through the said drain since 35-40 years and during the rainy season whole water of the flood also passes through the said drain. The said water passes in the same manner prior to the construction of the house of the petitioner- plaintiff. Accordingly, the respondents- defendants sought dismissal of the application. 4. During the pendency of the suit, a Local Commissioner was appointed to find out the distance between the pit dug by the respondents with the kitchen of the plaintiff. The Local Commissioner Sh. Parveen Chauhan in his report reported that there is 4’-7” distance between the pit and kitchen and the house of the petitioner. Admittedly, this report has not been challenged by either of the parties and the same in fact falsifies the version of the petitioner that pit is abutting the kitchen of the petitioner. It is further not in dispute that respondents have dug the pit in their own land over khasra No. 281. 5. Admittedly, this report has not been challenged by either of the parties and the same in fact falsifies the version of the petitioner that pit is abutting the kitchen of the petitioner. It is further not in dispute that respondents have dug the pit in their own land over khasra No. 281. 5. The learned trial court has arrived at the fact situation that at this stage nothing has been brought on record by the petitioner which could show that any nuisance/ damage has been caused to the petitioner by the respondents. The learned lower appellate court has also concurred with the findings of the learned trial court and the petitioner even before the learned lower appellate court could not establish a prima-facie case his favour. 6. It is settled law that power to grant injunction is not only discretionary but is equitable. A temporary injunction cannot be claimed by a party as a matter of right nor would a court grant such injunction as a matter of course. The power to grant injunction has also been considered to be extraordinary in nature and therefore, has to be exercised cautiously and with circumspection. The court can grant such relief ex-debito – justitiae i.e. to meet the ends of justice. Being equitable relief, before deciding an application for an interim injunction, the court is required to keep in mind several aspects.. The court of equity would exercise discretionary power in granting temporary injunction only when justice, equity, good conscience require to issue such orders and the court is satisfied that (i) the plaintiff has made out a prima facie case; (ii) that balance of convenience lies in his favour and (iii) in case injunction is not granted, he shall suffer irreparable loss and injury, which cannot be compensated in any terms. 7. In Colgate Palmolive (India) Ltd. vs. Hindustan Lever Ltd. (1999) 7 SCC 1 , the Hon’ble Supreme Court has held as under:- “9. Generally, however, the interlocutory remedy by way of a grant of an order of injunction is intended to preserve and maintain in status quo the rights of the parties and to protect the plaintiff, being the initiator, of the action against incursion of his rights and for which there is no appropriate compensation being quantified in terms of damages. Generally, however, the interlocutory remedy by way of a grant of an order of injunction is intended to preserve and maintain in status quo the rights of the parties and to protect the plaintiff, being the initiator, of the action against incursion of his rights and for which there is no appropriate compensation being quantified in terms of damages. The basic principle of the grant of an order of injunction is to assess the right and need of the plaintiff as against that of the defendant and it is a duty incumbent on to the law courts to determine as to where the balance lies. 10. Another redeeming feature in the matter of grant of interlocutory injunction is that, in the event of a grant of injunction in regard to a party defendant where the latter’s enterprise has commenced and in that event the consideration may be somewhat different from that where the defendant is yet to commence its enterprise. 24. We, however, think it fit to note herein below certain specific considerations in the matter of grant of interlocutory injunction, the basic being-non-expression of opinion as to the merits of the matter by the Court, since the issue of grant of injunction usually, is at the earliest possible stage so far as the time frame is concerned. 24. We, however, think it fit to note herein below certain specific considerations in the matter of grant of interlocutory injunction, the basic being-non-expression of opinion as to the merits of the matter by the Court, since the issue of grant of injunction usually, is at the earliest possible stage so far as the time frame is concerned. The other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below:- (i) Extent of damages being an adequate remedy; (ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor; (iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case - the relief being kept flexible; (v) The issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) Whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise.” 8. The suit is at the initial stage and thereafter the learned courts below are not really concerned with the factum of establishment of truth or falsity but is trying to find out the existence of prima-facie or arguable case having been made out by the plaintiff, which the plaintiff in the present case has failed to establish. 9. The report of the Local Commissioner has not been placed on record. 9. The report of the Local Commissioner has not been placed on record. However, to satisfy myself, I have obtained a copy thereof from the learned counsel for the respondents and after perusal of the same, I find that no exception can be taken till the orders passed by the learned courts below, particularly looking into the fact that report of the Local Commissioner, is absolutely categorical and clear and has thus been rightly relied upon by the courts below in favour of the respondents- defendants. 10. The findings recorded by the learned courts below are pure findings of fact based upon the pleadings of the parties as also the report of Local Commissioner. I find no infirmity or illegality in the orders passed by the courts below. Nothing has been brought to my notice, which could persuade me to take a view different from the ones taken by the learned courts below. 11. Accordingly, there is no merit in the present petition and the same is ordered to be dismissed. However, at this stage it may be clarified that this court has only formed a prima facie opinion, because the factum of truth or falsity of the claims of the respective parties is yet to be determined by the courts below during the trial. Therefore, nothing observed hereinabove shall be construed as an expression of opinion on the merits of the case of respective parties and the aforesaid expressions are strictly meant for the disposal of this petition. The parties are left to bear their own costs.