LAWS(P&H)-2013-2-418

BHAGWAN DASS Vs. ASHWANI KUMAR

Decided On February 19, 2013
BHAGWAN DASS Appellant
V/S
ASHWANI KUMAR Respondents

JUDGEMENT

(1.) Aggrieved of the dismissal of his application under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. by both the Courts below, the plaintiff has filed the present revision under Article 227 of the Constitution of India.

(2.) Counsel for the petitioner has submitted that the petitioner has been declined the relief of temporary injunction on the ground that he had filed the suit on 28.3.2012 but had not disclosed the lodging of the DDR by the defendant-respondent on 27.3.2012. According to him, the suit was presented before Additional Civil Judge (Senior Division), Abohar on 27.3.2012 and was entrusted to the Court of Shri Mohit Bansal, Civil Judge (Junior Division), Abohar for the following day, i.e. 28.3.2012. Therefore, it could not be expected of the plaintiff to mention about DDR which was lodged by the defendant on that very day, i.e. 27.3.2012. In this regard, he has drawn the attention of the Court to the endorsement made by Additional Civil Judge (Senior Division), Abohar on 27.3.2012 on the suit.

(3.) It is true that the petitioner had filed the suit on 27.3.2012, which was, thereafter, entrusted by Additional Civil Judge (Senior Division), Abohar to the Court of Shri Mohit Bansal, Civil Judge (Junior Division), Abohar for the following day, i.e. 28.3.2012. However, as is clear from the impugned judgment, on 26.3.2012, the petitioner had removed the lintel of one of the adjoining shops, which was in his possession as a result of which, the roof of the shop of the defendant allegedly got damaged. According to the defendant, the lintel of all the four shops of the plaintiff was common (joint). On the same day the defendant had submitted an application to the police on the basis of which, DDR No. 15 dated 27.3.2012 was lodged. In that application, the defendant had complained against the plaintiff of having committed offences under Sections 427 and 506 IPC. The plaintiff has not denied that he had removed lintel of the adjoining shop. However, his case was that the roofs of the four shops were separate. As is made out, the plaintiff removed the lintel of his adjoining shop on 26.3.2012 and on the following day, he got drafted the civil suit and instituted it on that very day wherein it was prayed that the defendant be restrained from raising any construction on the shop of which the defendant was a tenant. In that suit he did not mention about the incident of 26.3.2012 wherein he removed the lintel of the adjoining shop or the defendant approaching the police on 26.3.2012 and on the complaint submitted by him, DDR No.15 dated 27.3.2012 being lodged at the Police Station. Therefore, both the Courts below have rightly held that it was the plaintiff who tried to commit the mischief so as to create a ground for seeking ejectment of the defendant on the ground of raising construction over the shop by covering the same.