RAJA RAM Vs. RAM KARAN

JUDGEMENT

(1.) This petition is directed against the order of the Additional District Judge, Hissar, dated August 12, 1989, whereby the order of the trial Court dated 9.2.1989 declining the ad interim injunction in favour of the plaintiff was set aside and the defendant was restrained from digging any watercourse by way of restoration or otherwise from the land of plaintiff in Khasra No. 121/12 till the decision of this suit.

(2.) The plaintiff filed a suit for declaration to the effect that the order dated 31.5.1988 passed by the Sub Divisional Canal Officer and the order dated 21.10.1988 passed by the Divisional Canal Officer were wrong, illegal and without jurisdiction. Alongwith the suit he also filed an application for staying the operation of the said orders. The trial Court found that the plaintiff had filed a suit earlier which was subsequently dismissed as withdrawn without any permission to file a fresh suit. Thus the present suit was an abuse of the process of the Court. Consequently, it was found that neither the plaintiff has a prima facie case in his favour nor there was any, balance of convenience. The plaintiff is abo not likely to suffer any irreparable loss if stay is vacated. On the other hand, if stay is not vacated the defendant is likely to suffer irreparable loss. With these findings ad interim injunction was declined. In appeal the learned Additional District Judge found that the plaintiff has got a prima facie case in his favour. As regards the filing of the earlier suit, it was held that, "in the present case the suit cannot be said to be barred under Order 23 Rule 1 of the Code of Civil Procedure as the present suit had been filed before the earlier suit had been withdrawn." This approach was wholly wrong and illegal and the appellate Court has thus acted illegally and with material irregularity in the exercise of its jurisdiction. Since the plaintiff has got the suit dismissed as withdrawn, the second suit as such was not maintainable. In any case, the operation of the orders could not be stayed by the Civil Court. Consequently, this petition succeeds and the impugned order is set aside and that of the trial Court declining the ad interim injunction is restored. In order to expedite the hearing of the suit, it is directed that the parties shall lead evidence at their responsibility and, if desired, summons be given dasti as contemplated under Order 16 Rule 7-A of the Code of Civil Procedure.