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2014 DIGILAW 712 (HP)

Dulo Ram v. Mukesh Kumar

2014-06-03

RAJIV SHARMA

body2014
JUDGMENT : Rajiv Sharma, J. This petition is instituted against order dated 30.5.2013 rendered by learned District Judge, Kangra at Dharamshala passed in Civil Misc. Appeal No. 1-J/XIV/2013. 2. Pertinent facts necessary for the adjudication of this petition are that the petitioner-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake), filed a suit before the learned Civil Judge (Junior Division) Jawali, district Kangra i.e. Suit No. 248/2011 seeking permanent injunction to restrain the respondents-defendants (herein after referred to as 'defendants' for convenience sake), their family members and attorneys from releasing dirty water over the land as detailed in the plaint. Plaintiff also moved an application under Order 39 Rule 1 and 2 CPC bearing CMA No. 264/2011, for issuance of ad-interim ex parte direction restraining the defendants, their family members and attorneys from allowing the flow of dirty water towards the residential house of the plaintiff. Defendants filed written statement and also reply to the application under Order 39 Rule 1 and 2 CPC. Learned Civil Judge (Junior Division) vide order dated 20.11.2012 restrained the defendants from throwing/allowing dirty water towards the land and building of the plaintiff. 3. Defendants preferred an appeal against order dated 20.11.2012 before the learned District Judge. Learned District Judge Kangra at Dharamshala vide order dated 30.5.2013 partly allowed the appeal and impugned order was modified to the extent that the parties were directed to maintain status quo with regard to flow of dirty water, hence, this petition. 4. I have heard the learned counsel for the parties and also gone through the record carefully. 5. Mr. Sanjay Jaswal, learned Advocate has supported order dated 20.11.2012 passed by learned Civil Judge (Junior Division). 6. Ms. Leena Guleria, learned Advocate has supported order dated 30.5.2013 rendered by learned District Judge, Kangra at Dharamshala. 7. It has come on record that the plaintiff had also filed an application before the police. Police prepared report u/s 145 Cr.P.C. and filed it before the SDM Jawali. He issued notice. Naib Tehsildar Jawali was directed to visit the spot and enquire into the factual position at the spot. Proceedings u/s 145 of Cr.P.C. were dropped. It transpired from the report of the Naib Tehsildar that house of the defendants is situate on higher level of Abadi Deh in Khasra No. 1152 whereas house of the plaintiff was on lower side in the said Abadi Deh. 8. Proceedings u/s 145 of Cr.P.C. were dropped. It transpired from the report of the Naib Tehsildar that house of the defendants is situate on higher level of Abadi Deh in Khasra No. 1152 whereas house of the plaintiff was on lower side in the said Abadi Deh. 8. In view of this position, learned Civil Judge (Junior Division) has erred by ordering the defendants not to discharge water towards land and building of the plaintiff. Learned District Judge was right in coming to the conclusion that the best course open to the parties till the disposal of the suit was to maintain status quo as it existed on the site, for the discharge of water. Plaintiff has failed to prove that there was any alternative to discharge the water by the defendants. There is no illegality or irregularity in order dated 30.5.2013 rendered by learned District Judge. However, taking into consideration the facts and circumstances of the case, learned Civil Judge (Junior Division) is ordered to decide the civil suit expeditiously. 9. In view of the discussion and analysis made herein above, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stand disposed of. No costs.