Civil Revision No.3180 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3180 of 2009 Date of Decision:28.05.2009 Harinder Singh ....petitioner Versus Joginder Singh Bittu & Ors .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Anupam Bhardwaj,Advocate for the petitioner **** RAKESH KUMAR GARG J. CM No.13309-CII of 2009 CM is allowed subject to all just exceptions. CM disposed of. Civil Revision No.3180 of 2009 This is plaintiff's revision petition challenging the order dated 16.03.2007 and 09.04.2009 passed by Civil Judge(Jr.Divn.)Amritsar and Additional District Judge, Amritsar, respectively, whereby application filed by the petitioner under Order 39 Rule 1 and 2 CPC filed along with the civil suit for grant of ad interim injunction restraining the respondents from demolishing the gate in dispute was rejected. As per the averments made in this petition, the petitioner filed a suit for permanent injunction against the defendants/respondents restraining them from making any passage from Point AA1 to BB1 by demolishing the gate shown as red in the site plan of the property bearing No.3425/XXI as mark 'G' It is the case of the petitioner that he and his brothers are owner in possession of the property in dispute which was purchased by Civil Revision No.3180 of 2009 2 Harbans Singh their father vide sale deed dated 02.11.1946 and after his death he along with his brothers had inherited the same. House of Mukhtiar Singh, Anup Singh etc.are situated on the western side of the property of the plaintiff did not have any type of opening towards house of the plaintiff. However, they threatened to open access in wall A1B1 towards side of plaintiffs' property. Thus, plaintiff filed suit for permanent injunction titled as “Jagbans Singh & Ors.versus Mukhtiar Singh which was decreed vide judgment and decree dated 18.11.2004. Another suit was filed by one Karam Singh against the plaintiff which was dismissed by the Court of Sh.Ram Kumar Singla Civil Judge(Jr.Divn.), Amritsar on 29.01.2002 holding that there does not exist any passage from point AA1 to BB1 as shown in the site plan and defendants have no right to make any passage of private property from the plaintiff. Along with the suit plaintiff filed application under Order 39 Rules 1 and 2 read with Section 151 CPC claiming the same relief by way of interim injunction during the pendency of the main suit. The suit was contested by defendants No.2 and 3 by filing joint written statement wherein it was averred that plaintiff had mislead the Court by putting forward incorrect facts as the plaintiff had not mentioned the area of property purchased by his father vide sale deed dated 02.11.1946 and they have also sold a part of the property. In the year 1997 Harpal Singh, real brother of the plaintiff installed a gate illegally at point AA1 marked as 'G' in the attached site plan and upon complaint of inhabitants of locality a show cause notice was issued to Harpal Singh for demolition of illegal construction by the Municipal Corporation and therefore the authorities demolished the gate in the year 1997. It was further averred that disputed property was a public passage as per Town Planning Scheme for the area known as Adarsh Nagar and Labh Nagar, Ram Tirath Road, Amritsar prepared by DTP dated 27.11.1986 approved Civil Revision No.3180 of 2009 3 and sanctioned by Municipal Corporation and in that site plan the disputed area has been shown as public passage which plaintiff wants to encroach upon, illegally. Rest of the allegations were denied specifically. After considering the arguments and the material on record, the trial Court dismissed the application filed by the petitioner under Order 39 Rule 1 and 2 vide impugned order dated 16.03.2007 observing as under: " On the other side, defendants No.2 and 3 took a particular plea that plaintiff has not come to the Court with clean hands and no clear cut area of the property has been described which was purchased by father of plaintiff vide sale deed dated 02.11.1946. In fact the property in dispute is public passage as shown in site plan prepared by Town Planning Department. To establish their stand defendants have placed on record show cause notice issued by Estate Officer to the brother of plaintiff regarding demolition of gate at point 'G'. It is case of defendants otherwise that earlier said gate was demolished by Municipal Corporation Authorities after serving notice upon brother of plaintiff and now again plaintiff wants to affix gate illegally at point G as shown in the site plan. It would not be out of place to mention here that photocopy of application has come on record dated 20.07.2006 addressed to Municipal Corporation, Amritsar having fact regarding illegal encroachment over suit property. Assuming for a moment that plaintiff has been in possession over disputed property and otherwise such finding is there in favour of plaintiff vide ex parte judgment and decree dated 18.11.2004 but in that very judgment defendants were not the parties. The law is Civil Revision No.3180 of 2009 4 well settled that person who does not come to the court with clean hands is certainly not entitled to injunction. In the present case, plaintiff has not cleared the facts regarding issuance of show cause notice by the Estate Officer regarding demolition of his brother and as such on that account plaintiff is certainly not entitled to relief of injunction as prayed for and hence application under Order 39 Rules 1 and 2 CPC is dismissed. However, nothing said above shall effect the merits of main case.” The appeal filed by the petitioner challenging the aforesaid order was also dismissed by the Additional District Judge, Amritsar vide impugned order dated 09.04.2009. Challenging the aforesaid orders, learned counsel for the petitioner has vehemently argued that the impugned orders have been passed by ignoring the judgment and decree dated 18.11.2004 vide which it was held that the petitioner was in possession of the suit property and the respondent therein, who was father of the respondents was restrained from demolishing the gate in dispute. Once the court has already given a finding with regard to the property of the petitioner prima facie ad interim injunction should have been granted in favour of the petitioner during the pendency of the civil suit. It is further the case of the petitioners that he has not concealed anything from the Court. As the show cause notice was issued to the brother of the petitioner and the matter with regard to the demolition of the gate by the Municipal Corporation Authorities can be decided by the trial Court after evidence in this regard is led by both the sides, thus it was prayed that the revision petition be accepted and ad interim injunction as prayed be granted in favour of the petitioner. I have heard learned counsel for the petitioner. In the present case, plaintiff has concealed the facts Civil Revision No.3180 of 2009 5 regarding issuance of show cause notice by the Estate Officer and demolition of wall of his brother by the Municipal Corporation Authorities and as such on that account plaintiff is certainly not entitled to relief of injunction as prayed for. It may also be stated that assuming for a moment that possession over the suit property was found by the trial Court vide judgment and decree dated 18.11.2004 but the same is not of any help to the petitioner as defendants were not a party in that suit which was decreed ex parte. It is settled law that order refusing injunction is of a discretionary character and ordinarily court of Appeals will not interfere with the exercise of discretion by the trial Court, if the lower Court has not acted arbitrarily and perversely. This Court is of the opinion that the impugned order is perfectly valid and the Courts below have rightly arrived at a conclusion that the plaintiff has not approached the Court with clean hands and is certainly not entitled to the injunction. The law is well settled that a person who does not come to the court with clean hands is certainly not entitled to injunction. Thus, I find no merit in this revision petition. Dismissed. (RAKESH KUMAR GARG) JUDGE 28.05.2009 neenu