Raj Kumar and others vs The Muncipal Committee, Karnal and another

J.V. Gupta, J.—This is plaintiff''s second appeal whose suit for permanent prohibitory injunction has been dismissed by both the Courts below.

The plaintiffs filed the suit for a decree of permanent injunction restraining the defendant Municipal Committee from raising constriction of the wall in front of the 7 stalls in occupation of the tenants of the plaintiffs and defendant No. 2 alleging that it will not only impair the value and utility of the land but shall also block the passage. In the alternative, the plaintiffs claimed a decree for possession of the site in dispute shown in red colour in the site plan attached to the plaint. In the written statement filed on behalf of the Municipal Committee it was pleaded that no encroachment of any kind has been made by it, as alleged in the plaint. It was denied that the plaintiffs have got any vested right to open the stall towards the bus stand. The trial Court dismissed the plaintiffs'' suit on the ground that the Municipal Committee had a right to construct the wall in view of the provisions of section 169 of the Punjab Municipal Act. In appeal, the learned Senior Sub ordinate Judge with enhanced Appellate powers affirmed the said findings of the trial Court and thus maintained the decree dismissing the plaintiffs'' suit. Dissatisfied with the same, the plaintiffs have filed the second appeal in this Court.

During the pendency of this appeal, the plaintiffs also moved Civil Miscellaneous No. 3306-C of 1974 for seeking permission to lead additional evidence under Order 41, Rule 27, Civil Procedure Code.

After hearing the learned counsel for the parties, 1 do not find any merit in this appeal. On the appreciation of the entire evidence, it has been concurrently found that the Municipal Committee is entitled u/s 169 of the Punjab Municipal Act to construct the wall. I do not find any infirmity or illegality therein as to interfere in second appeal.

Faced with this situation, the learned counsel for the appellant contended that in the affidavit of Raj Kumar appellant dated September 13,1984, filed in this Court it has been stated that during the pendency of the appeal the bus stand and the octroi post have been shifted about one year back to a distance of about half a kilometre to other side from the shop of the appellant. Therefore, there is no possibility of evasion of octroi duty. Thus, according to the learned counsel, taking into consideration the subsequent events the appeal was liable to be accepted. The said affidavit was never properly placed on the file and no notice of such affidavit was given to the opposite side. Under these circumstances, no notice could be taken of the said affidavit. In any case, the appellants may approach the Municipal Committee in view of the alleged subsequent events, if any. In this view of the matter, the appeal fails and is dismissed with costs. C. M. No. 3306-C of 1984 also stands dismissed.