RAMAN JUNEJA Vs. SUDERSHAN JUNEJA

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution seeks assailing the order 30.07.2012 of learned ADJ, whereby the appeal filed by the petitioner against the order dated 5.11.2011 of Civil Judge, was dismissed. The present petition seems to have been wrongly filed under Article 226 of the Constitution, and the same is being treated as one under Article 227 of the Constitution.

(2.) THE respondent, who is the mother of the petitioner had filed a suit against him for possession and recovery of mesne profits. Her case was that the petitioner was in permissive possession of the suit premises, being her son. Since he had acted against her as also her husband's wishes and interests, he was debarred from their life and properties by way of a public notice dated 5.3.2003. Further, vide notice dated 1.7.2008, the permission granted to the petitioner earlier, was revoked and cancelled and he was called upon to hand over the vacant and peaceful possession of the suit premises, failing which, to pay damages at the rate of Rs. 15,000.00 per month. It was her case that the petitioner replied to the said notice, alleging that the suit premises came to his share out of the joint family property through oral partition. The petitioner having failed to vacate the premises, the respondent filed the suit for possession and recovery of mesne profits. During the pendency of the suit, she (respondent) filed an application under Order 39 Rule 1 and 2 CPC restraining the petitioner from digging the suit premises. It was this application, which was allowed by the learned Civil Judge vide order dated 5.11.2011, which was carried in appeal by the petitioner before the ADJ. The learned ADJ dismissed the appeal vide impugned order, which is under challenge in the instant petition.

(3.) THE submissions which are made by the learned counsel for the petitioner before me are the same, which were made before the learned ADJ as also Civil Judge that the petitioner is in possession of the suit premises in his independent right, and that, injunction order under Order 39 Rule 1 & 2 CPC could not be passed in a suit for possession and mesne profits. Learned counsel for the petitioner also placed reliance on the same judgment, which was cited by him in the courts below i.e. Prakash Kaur Vs. Everest Construction Company, 1991 RLR 19.