Vanita Rani vs Gautam

L.N. Mittal, J.—Plaintiff Vanita Rani having failed in both the courts below to secure temporary injunction has filed this revision petition under Article 227 of the Constitution of India assailing orders of both the courts. Plaintiff -petitioner in her suit filed against defendant - respondent Gautam has claimed right of easement by prescription regarding ventilator allegedly existing in first floor room of the plaintiff towards the house of the defendant-respondent alleging that the said ventilator is being used by the plaintiff and her predecessor/vendor for 30 years.

The plaintiff claimed temporary injunction restraining the defendant from closing the said ventilator during the pendency of the suit.

The defendant resisted the suit and the application of temporary injunction and denied the averments of the plaintiff. It was pleaded that the plaintiff and her husband wanted to construct the ventilator forcibly in the garb of the suit.

Learned Civil Judge (Junior Division), Dabwali vide order dated 12.8.2010, Annexure P/1 dismissed the plaintiff''s application for temporary injunction. Appeal against the same preferred by plaintiff has been dismissed by learned Additional District Judge (Fast Track Court), Sirsa vide judgment dated 18.11.2011, Annexure P/2. Both these orders of the courts below are under challenge in this revision petition.

I have heard learned counsel for the petitioner and perused the case file.

Counsel for the petitioner vehemently contended that ventilator in question was found to be in existence at the spot on spot inspection by Local Commissioner appointed by the trial court and therefore, temporary injunction against closing of the said ventilator during the pendency of the suit should be granted and it is matter of evidence for the plaintiff - petitioner to prove that the ventilator existed for more than 20 years prior to filing of suit giving rise to right of easement by prescription.

I have carefully considered the aforesaid contention but the same cannot be accepted. There is not even an iota of material on record to even prima facie depict that the alleged ventilator exists for more than 20 years preceding the filing of the suit so as to give rise to right of easement by prescription to the plaintiff - petitioner to use the said ventilator. In the absence of any prima facie material in support of petitioner''s claim, temporary injunction to the plaintiff - petitioner has been rightly declined.

On the other hand, there is prima facie material on record to depict that the alleged ventilator does not exist for the last 20 years. Plaintiff - petitioner relied on entries in house tax registers for 1989-90 to 1993-94 depicting the existence of a first floor room in the house of the plaintiff-petitioner. However, the said documents do not depict the existence of the disputed ventilator in the said room. Moreover, according to the house tax entries, size of the said room was 28'' x 10'' whereas according to the report of the Local Commissioner, size of the room now existing at the spot is 17'' x 13''8". It would prima facie depict that the disputed room as it exists now is a new room and not the same room which has been recorded in house tax registers. It would mean that the existing room has been constructed some time after 1993-94 i.e. within 20 years preceding the filing of the suit on 23.07.2010, which is sufficient to deny the relief of temporary injunction to the plaintiff.

In addition to the aforesaid, report of Local Commissioner also depicted that the disputed ventilator has already been blocked except 6" upper portion thereof.

Trial court has also observed that there is also a window in the disputed room for air and light. For this reason also, the petitioner is not entitled to temporary injunction as she would not suffer any irreparable loss and injury if temporary injunction is declined to her nor the balance of convenience is in her favour. On the contrary, if the ventilator remains open towards the house of defendant, obviously the defendant - respondent would suffer irreparable loss and injury as well as loss of privacy.

It may also be added that instant revision petition is also barred by delay and latches as it has been filed more than four months after the passing of the impugned order by the appellate court. For the reasons aforesaid, I find that the plaintiff has miserably failed to make out necessary three ingredients for grant of temporary injunction and therefore, temporary injunction has been rightly declined to the petitioner by the courts below. There is, therefore, no perversity, illegality or jurisdictional error in impugned orders of the courts below warranting interference by this Court in exercise of revisional power under Article 227 of the Constitution of India. The revision petition is completely meritless, and is therefore, dismissed in limine. However, it is expressly made clear that nothing observed hereinbefore shall be deemed to be an expression of opinion on merits of the suit.