IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.631 of 2009 Date of decision : August 10, 2010 Kailash Kalia …Petitioner. Versus Ravinder Nath and another …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Sanjeev Kuthiala, Advocate. For the Respondents : Mr. Jagdish Thakur, vice Mr. N.K. Thakur, Advocate, for respondent No.1. Deepak Gupta, J (Oral) This petition under Article 227 of the Constitution of India is directed against the judgment dated 21st October, 2009 passed by the learned Additional District Judge (Fast Track Court), Una, in Civil Miscellaneous Appeal No.23 of 2009, whereby he set aside the order dated 14th September, 2009 passed by the learned Civil Judge (Junior Division), Court No.1, Amb, in Civil Miscellaneous Application No.194-VI of 2009, refusing to grant stay order in favour of the plaintiff. 2. Brief facts of the case are that respondent No.1 (hereinafter referred to as plaintiff) filed a suit against the petitioner (hereinafter referred to as defendant) and respondent No.2 claiming therein that the land described in Whether reporters of the local papers may be allowed to see the judgment? Yes. …2… the plaint was jointly owned and possessed by the parties and that a few days prior to the institution of the suit, the defendant had started raising construction thereon. The suit was contested by the defendant and it was alleged that the shop which had been damaged had been constructed by the father of defendant No.1 and not by the father of the plaintiff. In replication, the plaintiff stated that the shop had in fact been constructed by the father of the parties, who were real brothers. 3. Alongwith the suit an application for grant of stay was also filed. The learned trial Court initially granted say and restrained the defendant from raising any construction. However, after finally hearing the parties he vacated the stay order. The main grounds on which the learned trial Court passed the order were that the plaintiff had not come to the Court with clean hands, since substantial construction had already been raised before the filing of the suit; that the plaintiff has not filed any site plan alongwith the suit to show what was the exact nature of the construction and the possession of each party; the learned trial Court also held that the story put up by the plaintiff that the fathers of the parties had constructed the building, in question, appeared to be an after thought; lastly he also held that the plaintiff purposely filed an incorrect jamabandi. 4. Aggrieved by the order of the trial Court, the plaintiff filed an appeal before the learned Additional District Judge, Una, who set aside the order of the trial Court and …3… directed the parties to maintain status quo regarding the suit property. So far as the jamabandi is concerned, learned Appellate Court held that it was not a case where the plaintiff had purposely filed wrong jamabandi. He had applied for a copy of the Jamabandi, giving the correct Khasra number but the Patwari prepared the same giving wrong Khatauni number in the Jamabandi. The learned Appellate Court also came to the conclusion that the question whether the land was joint or not could not be decided at this stage and should be left to be decided at the time of final hearing of the suit. He, therefore, directed the parties to maintain status quo regarding the suit property. Hence, the present petition. 5. I have gone through the record and heard the learned counsel for the parties. 6. It would be pertinent to mention that both the parties have not been fair to the Court. The plaintiff did not file the photographs or any other documents alongwith the plaint to show what was the construction which had already been raised by the defendant. In this day and age when videography and photography are advanced and digital, it is expected of the plaintiff to have placed such material on record. The averment made in the application that the construction had been raised only a few days prior to the filing of the suit does not appear to be correct. The conduct of the defendant is also far from being fair to the Court. Even after the stay order was passed he continued to raise construction. The trial Court had appointed a Commissioner, Shri Rakesh …4… Kumar, Advocate, Amb to ascertain the stage of construction. I have gone through the report of the Commissioner. He has in his report clearly indicated that eight cemented pillars had been completed and one pillar was under construction at the spot. This pillar was supported by iron plates and wooden supports. In one row nine pillars were existing and in another row there were only three pillars. There was shuttering over the pillars but no lintel had been laid. Therefore, the plea of the defendant that he had completed the construction prior to the institution of the suit is totally false. 7. In fact now the defendant is asserting in this Court that not only has he completed the construction but only the work of plastering of the walls and fixing of the doors and windows is left. If this assertion is correct, this only means that after the passing of the stay order the defendant continued to raise construction in defiance of the orders of the Court. Such a litigant is not entitled to any relief. Therefore, the petition is dismissed and the parties are directed to maintain status quo qua the suit property as it exists today. Parties are directed to appear before the learned trial Court on 6th September, 2010. Record be returned immediately, so that it reaches the Courts below well before the said date. The learned trial Court is directed to expedite the hearing of the case. August 10, 2010(sd) ( Deepak Gupta ), J