Civil Revision No. 5136 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5136 of 2010 (O&M) Date of decision: 17.08.2010 Lakhbir Singh and another ....Petitioners Versus Harbhajan Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Vikram Bali, Advocate, for the petitioners. ***** VINOD K. SHARMA, J (ORAL) The petitioners have invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 11.8.2010 passed by the learned Additional District Judge, Kapurthala. The impugned order reads as under: - “This mis. civil appeal is received by way of entrustment. It be registered. Heard, the appeal is fairly arguable. Hence, admitted. Alongwith appeal an application under order 39 rule 1&2 CPC has also been filed for an ad-interim injunction restraining the respondents from raising any sort of construction in any manner whatsoever over the suit land to install bore, to dig earth there from till the final disposal of the case. Heard on the application. Other party is necessary to be heard before passing any order on the application. Hence, notice of this appeal alongwith application be issued to the respondent individually on filing of PF/RC for 7.9.2010 as well as through ld. Counsel appearing for them in the ld. Lower Court. Lower Record be also summoned for the date fixed. Dated : 11.8.2010.” When the learned counsel for the petitioners was questioned Civil Revision No. 5136 of 2010 (O&M) -2- as to how this revision was competent, as no order was passed by the learned lower appellate Court till date and only notice was issued to the respondent for 7.9.2010, learned counsel for the petitioner insisted on arguing this revision petition on merit. The petitioners filed a suit for permanent injunction, restraining and prohibiting the defendant, and/or his attorney and anybody else acting for him and on his behalf from raising and making any sort of construction in and over the land in dispute. The suit for permanent injunction was filed on the pleadings, that the land in dispute was the undivided land of the parties as per jamabandi for the year 2003- 04. The case of the petitioners is, that defendant proclaiming himself to be forceful and resourceful person is threatening and bent upon to occupy valuable/specific/ portion/part/khasra number out of the joint suit land without waiting for outcome of the partition proceedings and was threatening to use/make construction forcibly to the detriment of the plaintiff/petitioners. The suit was subsequently amended by pleading therein, that the previous litigation was pending between the parties in the Court of learned Civil Judge (Junior Division), Phagwara, bearing suit No.67/12- 4.2008 at the time of filing of the instant suit, which was subsequently withdrawn on 24.5.2010. In the suit previously filed by the plaintiff/petitioners same relief was claimed, which was got dismissed as withdrawn. The order passed by the learned Civil Judge (Junior Division), Phagwara, passed in the previous suit reads as under: - “File taken up today, on the application moved by Civil Revision No. 5136 of 2010 (O&M) -3- the plaintiff for withdraw the suit. Shri L.M. Chopra, Adv for the defendant who is present in the Court, has taken the notice of the application and has stated that he has no objection if the present application for withdrawal of the suit is allowed. Plaintiffs have suffered a statement that they do not want to proceed with this suit and the same may be dismissed as withdrawn. Keeping in view the statement of plaintiffs, the instant suit is hereby, dismissed as withdrawn. File be consigned to the Record Room.” The application moved by the plaintiff/petitioners, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, was dismissed on account of concealment of fact, regarding pendency of the previous suit. As already observed above, the petitioners preferred an appeal in which the impugned order was passed. Learned counsel for the petitioners, challenged the denying of ex parte stay by the learned lower appellate Court, by relying upon the judgment of this Court in Ronki Ram Vs. Prem Saini, 2007(4) RCR (Civil) 304, wherein this Court laid down, that a co-owner cannot be allowed to change the nature of the property, without getting it legally partitioned. The injunction could not be refused merely because parties were co-owner. The learned counsel for the petitioners also relied on the judgment of the Hon'ble Supreme Court in Maharwal Khewaji Trust (Regd.) Faridkot Vs. Baldev Dass, 2004(4) RCR (Civil) 760, wherein the Hon'ble Supreme Court was pleased to lay down, that an application for grant of interim injunction restraining the defendant from alienating or changing the nature of the suit property should be granted, unless an irreparable loss or damage is shown by the defendant, in case the Civil Revision No. 5136 of 2010 (O&M) -4- injunction is granted, as change of nature or alienation of the suit property may lead to loss or damage being caused to the party who may ultimately succeed, and may lead to multiplicity of proceedings. Reliance was thereafter placed on the judgment of this Court in Sandeep Kumar Vs. Satish Kumar, 2010(2) RCR (Civil) 18, wherein this Court in a petition filed for ad interim injunction, on the facts and circumstances of the case, had ordered maintenance of status quo with regard to possession and alienation of the suit property till partition. The learned counsel for the petitioners placed reliance on the judgment of this Court in Balbir Singh Vs. Lamber Singh, 2004(2) RCR (Civil) 843, wherein this Court held that exclusive possession of the co-sharer and raising construction by him will not constitute ouster of other co-sharer not in possession or in possession of other party of the property, but if a co-sharer asks for injunction from alienation, raising of construction or changing of nature of the joint land or part thereof, the plaintiff must also be bound by the same order, so that one may not take undue advantage of process of the Court and law. In the said judgment, this Court ordered maintenance of status quo, order was also passed restraining alienation, raising construction or changing the nature of the joint land or part thereof during the pendency of the suit. On consideration, I find the reliance on the judgments referred to above to be totally mis-conceived. The petitioners were denied injunction by the learned trial Court, on the ground of concealment of material facts. It is well settled law, that the party guilty of concealment of facts, is not entitled to discretionary relief of injunction. In this case the petitioner was guilty of concealment of material fact, in not Civil Revision No. 5136 of 2010 (O&M) -5- disclosing the previous suit. The mistake was corrected by way of amendment of the suit. The order placed on record, vide which the previous suit filed by the plaintiff/petitioner was ordered to be withdrawn, shows, that the second suit prima facie would not be competent, as while withdrawing the suit the plaintiff/petitioners did not seek permission to file a fresh suit on the same cause of action. The plaintiff/petitioners, therefore, have no prima facie case to seek injunction. There is no illegality in the order passed by the learned lower appellate Court, in not granting ad interim injunction in favour of the plaintiff/petitioners. This revision petition being totally mis-conceived is ordered to be dismissed, but with no order as to costs. However, nothing stated hereinabove may be treated to be an expression on merit of the controversy, as it would be for the learned trial Court to adjudicate, the dispute in accordance with law after the parties are allowed to lead evidence. The learned appellate Court may decide the application for stay in accordance with law. (Vinod K. Sharma) Judge August 17, 2010 R.S.