Civil Revision No. 6042 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 21719-CII of 2008 and Civil Revision No. 6042 of 2008 Date of decision: 05.09.2009 Premlata ....Petitioner Versus Harminder Gupta and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. V.K. Gupta, Advocate, for the petitioner. Mr. Harjit Singh Manhas, Advocate, for respondents No. 5 and 6. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 30.9.2008, passed by the learned courts below, vide which the application moved by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure, in a suit for partition, has been ordered to be dismissed. The plaintiff/petitioner filed a suit for partition claiming half share in the joint property, on the plea that she was co-sharer with the respondents. In the suit, application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was also moved, claiming injunction against construction on the joint property. Instead of going into the merits of the case, the learned trial Civil Revision No. 6042 of 2008 (O&M) -2- Court as well as the learned lower appellate Court dismissed the application on the statement made by the defendant/respondent, that she may be allowed to raise construction subject to final decision of the Court. She further undertook that she would be bound by the final decision. Learned counsel for the petitioner contends, that the impugned order cannot be sustained, as it was not open to the learned Courts below to dispose of the application for injunction on the statement of the party. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, 2005(1) PLR 399 and the judgment of this Court in Gursharan Singh Vs. Bhupinder Kaur and others, 2008(4) RCR (Civil) 521. Learned counsel appearing on behalf of respondents No. 5 and 6, however, contends that the impugned order does not call for any interference by this Court, as the respondents are bona fide purchasers for consideration, and are in exclusive possession of the property in dispute. The co-owner in possession cannot be restrained from using the property or raising construction thereon, by other co-owner, specially in view of undertaking given that she will be bound by the decision of the Court. On consideration, I find force in the contentions raised by the learned counsel for the petitioner. In view of the judgments in Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass (supra) and Gursharan Singh Vs. Bhupinder Kaur and others (supra), the learned Court was bound to adjudicate the dispute on merits and pass Civil Revision No. 6042 of 2008 (O&M) -3- appropriate order. The injunction application could not be disposed of on the statement of the defendant/respondent, or on undertaking that party will be bound by the final decision of the Court. The revision petition is allowed, the impugned order is set aside. The case is remanded back to the learned trial Court to decide the application moved under Order 39 Rules 1 and 2 of the Code of Civil Procedure afresh, in accordance with law, by passing detailed order on merits. Keeping in view the fact, that defendant/respondent is an old lady and is to carry out repair, and raise construction of house, which is the only residential house with her, the learned trial Court is directed to expedite the hearing of the case. (Vinod K. Sharma) Judge September 05, 2009 R.S.