IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No.367/2011 Reserved on: 15.11.2011 Decided on:2.12. 2011 _____________________________________________ Jhabe Ram and others. …Petitioners. Versus Mahinder Singh. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioners : Mr. G.R. Palsara, Advocate. For the Respondent : Ms. Deepika Thakur, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. The present petition is directed against the order dated 29.8.2011 passed by the learned District Judge, Mandi whereby he has affirmed the order dated 27.9.2010 passed by the Civil Judge (Junior Division), Court No.IV, Mandi in C.M.A. No. 92/2010 in Civil Suit No. 66/2010. 2. Material facts necessary for the adjudication of this petition are that petitioners-plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) have instituted a suit for declaration as well as permanent prohibitory injunction against the respondent-defendant (hereinafter referred to as ‘defendant’ for convenience sake) on the ground that they were joint 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 owners of the land detailed in the plaint. Case of the plaintiffs is that they are joint owners in possession of the land detailed in the plaint. The plaintiffs are sons of Khem Dass son of Bhadru. Khem Dass had two more brothers, namely, Rattanu and Moti. Rattanu was unmarried and died issueless. There were total 252 shares in the land. Half share was in the joint ownership and possession of one Smt. Dolu and others and other half share, i.e. 126 shares were owned and possessed by the plaintiffs, defendant and other co-sharers. Earlier 126 shares were owned and possessed by Khem Dass, Rattanu and Moti in equal share, i.e. 42 shares each. The plaintiffs have claimed the share of Rattanu on the basis of will dated 21.4.1986. It is alleged that after the death of Rattanu, Moti got mutation of Rattanu’s share on the basis of inheritance. Moti sold his share alongwith the share of Rattanu to the defendant, namely, Mahender Singh on 23.10.1996. The plaintiffs acquired knowledge of the sale deed in the first week of January, 2010. The plaintiffs have also moved an application under order 39 rule 1 and 2 of the Code of Civil Procedure stating therein that they have very good prima facie case, balance of convenience was also involved and irreparable loss and injury would cause to them if the defendant is not restrained from his illegal acts. The plaintiffs have also prayed that the defendant be restrained from attestation of mutation in his favour, from changing the nature of the suit land, encumbering, selling or alienating the suit land. 3 3. The application was contested by the defendant firstly on the ground that the plaintiffs have not approached the court with clean hands, secondly the application was barred by principles of res judicatta and the application was not filed within limitation. 4. Learned Civil Judge (Junior Division) dismissed the application on 27.9.2010. Plaintiffs preferred an appeal before the learned District Judge, Mandi. He dismissed the same on 29.8.2011. 5. Mr. G.R. Palsara has strenuously argued that both the courts below have failed to exercise the jurisdiction vested in them, which has resulted in grave miscarriage of justice. According to him, all the necessary ingredients were mentioned in the plaint as well as in the application. 6. Ms. Deepika Thakur has supported the judgment and order passed by the courts below. 7. I have heard the learned counsel for the parties and have perused the pleadings, judgment and order carefully. 8. It is evident from para 12 of the plaint placed on record vide Annexure P-3 that there was litigation between plaintiffs and others and one Sh. Moti Ram about inheritance of rights of Bhadru. According to the averments contained in the plaint, the suit was withdrawn by the plaintiff on 17.11.2009. Number of the suit and name of the court where the suit was filed has not been given. Defendant has not placed on record copy of order passed by the learned Civil Judge (Senior Division), Court 4 No.2, Mandi of the earlier litigation. According to order dated 17.11.2009, the suit was titled as Mast Ram versus Moti Ram. It was dismissed in default and not withdrawn as stated in para 12 of the plaint. It was necessary for the plaintiff to give exact detail of the earlier suit filed and the order passed therein. It was also necessary for the plaintiffs to disclose that the earlier litigation was between the same parties and same suit land wherein the same sale deed was challenged. It is thus evident that the plaintiffs have not approached the Court with clean hands. It is settled law by now that the parties seeking relief in an application under order 39 rule 1 and 2 of the Code of Civil Procedure must approach the court with clean hands. In the instant case, the plaintiffs have concealed material facts from the court, which has bearing on the final outcome of the case. 9. Accordingly, in view of the observations made hereinabove, there is neither any jurisdictional error nor infirmity nor illegality in the orders passed by the courts below. 10. Consequently, there is no merit in the petition and the same is dismissed. Pending application(s), if any also stands disposed of. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 2.12. 2011 *awasthi*