IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No. 13 of 2009 Date of decision March 16, 2009 __________________________________________________________ Kamla Devi ….Petitioner Versus Dr. O.K. Jaidka & another ….Respondents _________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the Petitioner : Shri Ajay Mohan Goel, Advocate. For the Respondent : Shri R.K. Gautam Sr. Advocate with Ms. Archna Dutt, Advocate __________________________________________________________ Dev Darshan Sud, J. This petition has been filed by the defendant against the order of learned District Judge passed in appeal against the order passed under Order 39 Rules 1 and 2 of the Code of Civil Procedure whereby the trial Court declined interim injunction to the plaintiff. The respondents who are the plaintiffs instituted a suit for permanent prohibitory injunction restraining the defendant, her agents, assignees, representatives etc. from interfering, encroaching upon in any manner on the stair case as described in the plaint. The allegation was that stair case is situated in the property in Ward No. 9, Niazpur, near Bus Stand, Nurpur, District Kangra. According to the plaintiffs-respondents the defendants were interfering in the rightful possession of the plaintiffs. Alongwith the suit, the plaintiffs had also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking interim 1 Whether reports of Local Papers may be allowed to see the judgment? 2 injunction against the petitioners herein. The learned trial Court by its order dated 27th May, 2008, while deciding the application considered the sale deed executed in favour of the petitioner-defendant herein which contained a recital that land comprised in Khasra No. 718 alongwith shop and stairs situated therein had been sold to the petitioner-defendant. The Court also took into consideration the demarcation report prepared by the Field Kanungo and the latest jamabandi substantiating the claim of the petitioner that it was a part of their property. The Court held that the plaintiffs had concealed material facts etc. In these circumstances, the discretionary relief of injunction was declined. The plaintiff appealed, which appeal was accepted holding therein that the findings given by the trial Court cannot be sustained. The defendants have challenged this order. I have heard learned counsel appearing for the parties. The learned District Judge has been swayed by the fact that the photographs filed by the respondent purportedly indicate that the structure situated on Khasra No. 717 admittedly belonged to the plaintiffs. The Court then launches into discussion as to how the photographs primfacie proved that the stair case is situated in the land of plaintiff on a particular Khasra number. On the demarcation the learned Court holds that though the Field Kanungo had reported that the stair case is on Khasra No. 718 yet the defendant could not be treated as its owner. To say the least, the order passed by the District Judge is most unsatisfactory. It does not in any manner deal with the prima-facie material on record consisting of the recital in the sale deed, the report of the Field Kanungo and jamabandi which do not support the case of plaintiff. The order passed by the learned District Judge is slip shod and conjectural. It was the duty of Court to have considered the material on record and applied its mind and then determined the controversy in accordance with the principles of law applicable for the grant of injunction. No such exercise having been undertaken, the order passed by the District Judge is quashed and set aside. 3 A direction is issued that the case shall be decided afresh in accordance with law. Needless to say that the Court shall issue notices afresh to the parties before proceeding with the matter. This petition is accordingly disposed of. There shall be no order as to costs. March 16, 2009 (Dev Darshan Sud), (ms) Judge