R.S.A.No. 1801 of 2007 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1801 of 2007 Date of decision: 3.12. 2009 M/s Haryana Oil Corporation ......Appellant Versus Secretary, Market Committee, Gharaunda and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. P.N.Makani, Advocate, for the appellant. **** SABINA, J. Plaintiff-appellant filed a suit for mandatory injunction, which was dismissed by the Civil Judge (Jr.Divn.), Karnal vide judgment and decree dated 24.12.2005. In appeal, the said judgment and decree were upheld by the Additional District Judge, Karnal vide judgment and decree dated 19.2.2007. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- R.S.A.No. 1801 of 2007 2 “2. The plaintiff/appellant M/s Haryana Oil Corporation (hereinafter called the HOC) had filed a suit for permanent injunction against the Secretary, Marketing Committee, Gharaunda etc. (defendants/respondents) on the allegations that HOPC is a registered partnership firm thereby dealing in the business of petrol, diesel, Mobil oil etc. and the suit is filed through one of its partner. On its premises, the HOC had constructed a store on a pucca platform for storing Mobil oil etc. on an area measuring 23' x 11'-9”, fully detailed and described in para No.2 of the plaint as well as by letters ABCD in the site plan attached with the plaint. The store opens on the metalled road. However, the defendants/respondents with the connivance of the police wants to raise wall in front of the said store without any right or authority thereby blocking the entry of the store. Accordingly, the HOC prayed that the defendants/respondents be restrained from raising any construction/wall in front of portion marked by letters ABCD. Hence, the suit. However, during the pendency of the suit, the defendants/respondents raised construction in front of the store shown by letters ABCD and accordingly, the HOC with the permission of the learned trial Court amended the plaint thereby alleging that the defendants/respondents R.S.A.No. 1801 of 2007 3 had forcibly and illegally raised construction of the wall in front of the portion marked by letters ABCD thereby resulting into blocking the entrance. Hence, the plaintiff/appellant HOC prayed that a decree for mandatory injunction be passed thereby directing the defendants/respondents to remove the wall constructed by it during the pendency of the suit. 3. The defendants/respondents filed written statement thereby resisting the suit on various grounds including that the plaintiff has no locus standi and cause of action to file the present suit; that the suit is not maintainable in the present form; that the suit is bad for want of notice under the P.A.P.M. Act; that the plaintiff had not come to the court with clean hands; that the suit has not been properly valued for the purposes of Court fee and jurisdiction. On merits, it is denied that the plaintiff is a registered firm and the suit has been filed by one of its partner as HOC had not produced the certificate of registration of the firm. It is also denied that HOC had constructed a store for storing Mobil oil etc. on the spot on the platform having an area of 23' x 11'-9” and shown by letters ABCD in the site plan attached with the plaint as well as in para No.2 of the plaint. The R.S.A.No. 1801 of 2007 4 defendants/respondents alleged that there exist no pucca platform on the spot. The boundaries given by the plaintiff are also wrong. Moreover, on the Northern side of the property in dispute exist an exclusive road belonging to the Market Committee, Gharaunda and it is used by it as well farmers as a main approach road to the Grain Market, Gharaunda. Moreover, in the past also, the HOC wanted to open a door towards North side forcibly and illegally and also without any right, title or interest, therefore, the defendants/respondents wrote a letter on 28.3.1994 to SHO, P.S.Gharaunda for taking legal action against HOC. The defendants/respondents also alleged that under the garb of the present suit, the HOC tried to open the door towards North side forcibly. Moreover, the injunction application under Order 39 Rules 1 and 2 read with Section 151 CPC filed by the HOC was also dismissed by the learned trial Court on 2.8.1997 thereby vacating the interim order dated 1.4.1994. No appeal against order dated 2.8.1997 was filed by the HOC and accordingly this order had become final. After the dismissal of the injunction application, the defendants/respondents accordingly raised construction on their own land. The plaintiff/appellant HOC had got no R.S.A.No. 1801 of 2007 5 locus standi to open the door towards North side on the road of the Market Committee, Gharaunda. Moreover, there exist no store on the spot and accordingly causing of any obstruction does not arise because the defendants/respondents Market Committee, Gharaunda had raised construction on its land. Accordingly, the dismissal of the suit was prayed for.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to get a decree for permanent injunction to restrain the defendants from raising any obstruction/wall in front of the portion marked ABCD? OPP 1-A Whether the plaintiff is entitled to a decree for mandatory injunction as prayed for? OPP 2. Whether the plaintiff has got no locus standi to file and maintain the present suit? OPD 3. Whether the suit is not maintainable? OPD 4. Whether no notice u/s P.A.P.M. Act has been served upon the defendants? OPD 5. Whether the plaintiff has not come to the Court with clean hands? OPD 6. Whether the suit of the plaintiff is not properly valued for the purposes of Court fee and jurisdiction? R.S.A.No. 1801 of 2007 6 OPD 7. Whether the plaintiff has got no cause of action? OPD 8. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for mandatory injunction that the defendants should remove the wall constructed during the pendency of the suit in front of the portion marked as ABCD. The case of the plaintiff was that the use of the gate of his store due to construction of the wall had been adversely affected. However, the plaintiff failed to establish as to when the store was constructed by it. When the plaintiff got sanctioned site plan Ex.P-4 for raising construction of the petrol pump, no permission was taken for construction of the store. Regarding the ownership of the land in question, the plaintiff is having another litigation with Municipal Committee. The Market Committee has constructed a metalled road on the Northern side of the petrol pump owned by the plaintiff. The road was being used by the farmers for taking their produce to the Grain Market. Since there remained a rush of traffic, the Market Committee has constructed a boundary wall in its land. The courts below in view of the evidence led by the parties rightly came to the R.S.A.No. 1801 of 2007 7 conclusion that on the construction of the road, the plaintiff had opened a gate of his store on the road. By construction of the wall, the gate of the store had been closed. Thus, the plaintiff had failed to establish that he had right to use the gate on account of legal necessity or easement. The plaintiff had illegally opened the gate of the store after the construction of the metalled road. Hence, the same could not be protected by granting him the relief of mandatory injunction claimed by the plaintiff with regard to the store. The finding of fact arrived at by the Courts below calls for no interference. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 3, 2009 anita