Inderjit Singh vs Balwinder Singh

Amit Rawal, J

The petitioner-plaintiff is aggrieved of the impugned order, whereby, the application under Order 39 Rules 1 and 2 CPC moved alongwith suit claiming

permanent injunction for grant of ad interim injunction restraining defendant not to encroach upon the street to be a public has been dismissed by the

trial Court and miscellaneous appeal preferred before the Lower Appellate Court also met with the same fate.

Mr. G.S.Sirphikhi, learned counsel for the petitioner-plaintiff submits that trial Court before adjudication of the application filed under Order 39 Rules 1

and 2 CPC granted the ad interim injunction which ultimately was not confirmed by the Lower Appellate Court. The miscellaneous appeal has

erroneously been rejected, for, ingredients of Order 39 Rules 1 and 2 CPC, i.e., prima facie balance of inconvenience and irreparable loss have been

established through documents attached alongwith plaint. The Courts below failed to consider that defendant had purchased only 1½ marla of land

vide registered sale deed dated 06.05.1998 but the site plan was sanctioned in respect of 2 marlas of land which itself was sufficient material on the

record enabling the Court to form an opinion in favour of the petitioner-plaintiff but having not adverted to the aforementioned document, there is

illegality and perversity and thus, orders under challenge are without jurisdiction.

I have heard the learned counsel for the petitioner-plaintiff and appraised the paper book.

Before I could deal with the arguments of Mr. Sirphikhi, a specific query was raised to him with regard to ascertaining the status of the suit, it has

been apprised that suit is slated for plaintiff's evidence. The suit was filed in the year 2016. It is yet to be proved whether the street is public or

private. One of the reasons for declining the application and miscellaneous appeal was that Municipal Council, Batala has not been made a party to the

suit but that can be taken care of by the plaintiff by examining the witness from the concerned department.

On overall appreciation of record, I am of the view that granting ad interim injunction would tantamount to decreeing the suit. The plaintiff should have

focused on leading the evidence enabling him getting the suit decided as early as possible.

While upholding the orders under challenge, revision petition stands disposed of with a direction to the trial Court to decide the suit after affording 3-3

effective opportunities to each of the parties as early as possible preferably within a period of 10 months from the date of receipt of.