Himachal Pradesh High Court
Ramesh Chand Dhiman vs Rajinder Kumar And Another on 21 November, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CrMMO No. 476 of 2018
Decided on November 21, 2018
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Ramesh Chand Dhiman ..Petitioner
Versus
Rajinder Kumar and another ...Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
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For the petitioner: Mr. Suneet Goel, Advocate.
For the respondents: Mr. Pratap Singh Goverdhan, Advocate,
r for respondent No.1.
Mr. S.C. Sharma and Mr. Dinesh
Thakur, Addl. AG's with Mr. Amit
Kumar, DAG, for respondent No.2.
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Sandeep Sharma, J. (Oral)
Present petition filed under S.482 CrPC, is directed against order dated 28.7.2018 passed by the learned Sessions Judge, Hamirpur, Himachal Pradesh in Cr. Revision No. 16 of 2016, affirming the order dated 26.5.2016 passed by Sub Divisional Magistrate, Sujanpur, District Hamirpur, Himachal Pradesh in Case No. 12/14 (1290/14), whereby complaint filed by respondent No.1 under S.133 CrPC has been allowed.
2. Briefly stated the facts of the case are that on the basis of a complaint having been filed by respondent No.1- complainant (hereinafter, 'complainant'), Police Station Sujanpur, filed Kallandra under S.133 CrPC, before Sub Divisional Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 22/11/2018 22:57:37 :::HCHP -2-Magistrate, Sujanpur, District Hamirpur, which came to be registered as Case No. 12/14 (129/2014). Complainant alleged .
that water of rainy season flows through pipe outside the house of petitioner, namely Ramesh Chand Dhiman, who was respondent before the Sub Divisional Magistrate, and ultimately proceeds towards Nagar Panchayat, but since petitioner has obstructed the said chamber and blocked the pipe, water remained logged causing moisture and danger to the house of complainant, which is made of mud. Sub Divisional Magistrate below taking cognizance of the complaint, issued direction to the petitioner to file reply, who by way of reply refuted the claim as put forth by the complainant. Complainant, in support of his claim examined himself as well as another witness, Sanjay Kumar. Complainant, while appearing as CW-1, deposed that the petitioner has blocked water of his house, as a consequence of which, his house is in danger. He further deposed that only rainy water flows towards the house of petitioner.
3. CW-2 Sanjay Kumar, deposed that the dispute between the parties relates to flow of water, which has been blocked by the petitioner. He further stated that Manoj Kumar, Pradhan, Municipal Council Sujanpur, tried to settle down the dispute between the parties but petitioner is not ready to do so.
Record reveals that petitioner was afforded opportunity to lead ::: Downloaded on - 22/11/2018 22:57:37 :::HCHP -3- evidence, but he stated that he does not want to lead any evidence, as such, his defence was closed.
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4. Sub Divisional Magistrate below, on the basis of evidence collected on record by complainant, arrived at a conclusion that there is water logging between house of complainant and petitioner, which flows through pipes and chamber. Sub Divisional Magistrate also held that it stands duly proved from the statements having been made by witnesses of the complainant that the chamber and sewerage pipes have been blocked by the petitioner, as a consequence of which, water remains logged therein and accordingly, vide order dated 26.5.2016, Sub Divisional Magistrate directed petitioner to remove all the obstructions and allow water to flow through pipe line and further debarred him to repeat the same. Being aggrieved and dissatisfied with the aforesaid order passed by the Sub Divisional Magistrate, petitioner filed a revision petition before the learned Sessions Judge, Hamirpur, Himachal Pradesh, however, the fact remains that the same was dismissed vide order dated 28.7.2018. In the aforesaid background, petitioner has approached this court in the instant proceedings.
5. Having heard the learned counsel representing the parties and perused the material available on record vis-à-vis reasoning assigned by the courts below, while passing impugned orders, this court sees no illegality and infirmity in the orders ::: Downloaded on - 22/11/2018 22:57:37 :::HCHP -4- passed by the courts below, rather, this court finds that despite opportunity having been afforded to the petitioner, he failed to .
lead sufficient evidence to establish on record that he has not blocked the flow of water and has not caused any damage to the chamber. During proceedings before this court, learned counsel representing the petitioner made an attempt to persuade this court by showing certain photographs that no obstruction has been caused on the site, but same can not be looked into at this stage, especially when petitioner failed to avail the opportunity provided to him by the court below.
6. Learned counsel representing the petitioner, with all vehemence, argued that no obstruction has been caused on the spot by the petitioner. If it is so, it is not understood, how petitioner is aggrieved with the order passed by the court below, because, by way of impugned order, petitioner has been only directed to ensure that there is free flow of water and there is no damage caused to the chamber or sewerage line.
7. Mr. Suneet Goel, learned counsel representing the petitioner, while referring to the cross-examination conducted upon the complainant, strenuously argued that the complainant has categorically admitted that his house is downward to the house of the petitioner and as such, there is no question of causing obstruction, if any, by the petitioner, whose house is on upper side. Aforesaid argument having been made by Mr. Suneet ::: Downloaded on - 22/11/2018 22:57:37 :::HCHP -5- Goel, can not be accepted at this stage, especially when petitioner did not lead any evidence in support of his claim. Otherwise also, .
there is ample evidence led on record by the complainant suggestive of the fact that petitioner caused obstruction in free flow of water and also caused damage to the chamber/sewerage line laid down by the complainant. Sub Divisional Magistrate has decided the case on the basis of totality of evidence adduced on record by the parties and merely on the basis of admission, if any, made by the complainant, it can not be concluded that no obstruction on the spot has been caused by the petitioner.
Otherwise also, during arguments Mr. Goel, learned counsel representing the petitioner, while responding to submissions having been made by Mr. Pratap Singh Goverdhan, learned counsel representing the complainant, fairly admitted that the pipes laid down by the complainant for flow of water pass beneath the house of petitioner, which though is on upper side. It is not in dispute that the house of complainant was in existence prior to construction raised by petitioner, who subsequently increased elevation of his plot for construction of his house, however, the fact remains that pipes laid down by the complainant pass beneath the house of petitioner.
8. In view of detailed discussion made herein above, this court sees no illegality or infirmity in the impugned orders passed ::: Downloaded on - 22/11/2018 22:57:37 :::HCHP -6- by the learned Courts below and as such, same are upheld.
Resultantly, petition is dismissed.
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Pending applications, if any, stand disposed of.
(Sandeep Sharma)
Judge
November 21, 2018
(Vikrant)
r to
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