Punjab-Haryana High Court
Hardeep Singh vs Rattan Singh & Another on 22 August, 2013
Author: L. N. Mittal
Bench: L. N. Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR NO.5718 OF 2011
DATE OF DECISION : 22nd AUGUST 2013
Hardeep Singh
.... Petitioner
Versus
Rattan Singh & another
.... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Harsh Bunger, Advocate for the petitioner.
Mr. A. P. Kaushal, Advocate for respondent no.1.
None for respondent no.2.
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L. N. MITTAL, J. (ORAL)
Defendant no.1-Hardeep Singh has filed this revision petition under Article 227 of the Constitution of India impugning judgment dated 11.08.2011 Annexure P-11 passed by the lower Appellate Court.
Respondent no.1-Rattan Singh has filed suit against the petitioner-defendant no.1 and respondent no.2-Basakha Singh-defendant no.2. All the three are real brothers. The plaintiff pleaded that all the three are joint owners of the suit property i.e. 10 Kanals 3 marlas land and a house described in the plaint to the extent of 1/3rd share each. Registered gift deed dated 02.04.2003 allegedly executed by Jarnail Singh-grand father of the parties, in favour of defendant no.1 was also challenged in the suit along CR No.5718 of 2011 -2- with consequent mutation. Permanent injunction restraining defendant no.1 from changing the nature of suit land and from alienating the same was also claimed.
Along with plaint Annexure P-2, plaintiff moved application Annexure P-3 for temporary injunction seeking to restrain defendant no.1 from changing the nature of the suit land and from alienating the same till disposal of the suit. The said application was dismissed by trial Court vide order dated 29.05.2009 Annexure P-4. Appeal Annexure P-5 preferred against the said order by the plaintiff was also dismissed by the lower appellate Court vide judgment dated 02.02.2010 Annexure P-6. However, plaintiff thereafter filed second application Annexure P-7 seeking temporary injunction to the same effect. Defendant no.1 by filing reply Annexure P-8 opposed the said application. Learned trial Court vide order dated 08.04.2011 Annexure P-9 dismissed the said application for temporary injunction. However, appeal Annexure P-10 against the said order has been allowed by Additional District Judge vide impugned judgment dated 11.08.2011 Annexure P-11 and thereby both the parties have been directed to maintain status quo regarding alienation as well as nature of the suit property during pendency of the suit. Feeling aggrieved, defendant no.1 has filed this revision petition to assail judgment Annexure P-11.
I have heard counsel for the parties and perused the case file. Counsel for the petitioner contended that after dismissal of plaintiff's first application Annexure P-3 for temporary injunction by trial Court vide order Annexure P-4 and by lower appellate Court vide judgment CR No.5718 of 2011 -3- Annexure P-6, there was no occasion for allowing second application filed by the plaintiff for the same relief without there being any change of circumstances.
On the other hand, counsel for respondent no.1-plaintiff contended that there was change of circumstances inasmuch as defendant no.1 had collected building material to raise construction in joint taur of the parties as mentioned in paragraph 7 of the application Annexure P-7.
Counsel for the petitioner, however, submitted that alleged taur was not even part of the suit property and moreover, temporary injunction against changing nature of the suit property as well as against alienation had already been declined.
I have carefully considered the matter. Application Annexure P- 3 filed by plaintiff for temporary injunction stood dismissed by trial court vide order Annexure P-4 and by lower Appellate Court vide judgment Annexure P-6. Consequently, there was no occasion for the plaintiff to have filed second application for temporary injunction for the same relief without any change of circumstance. The lower appellate Court vide impugned judgment Annexure P-11 while allowing the second application for temporary injunction did not advert to the aforesaid material fact and re- examined the matter afresh without any justification. The alleged change of circumstance that defendant no.1 had collected building material to raise construction in the alleged joint taur was not change of circumstance for two reasons. Firstly, taur is not shown to be part of the suit property as it has not been mentioned in description of the suit property in plaint Annexure P-2. CR No.5718 of 2011 -4-
Secondly, when temporary injunction seeking to restrain defendant no.1 from alienating the suit property and from changing the nature thereof had been declined, defendant no.1 was at liberty to raise construction even in the suit property and even if defendant no.1 collected building material for raising construction, that was no change of circumstance for moving second application by the plaintiff for temporary injunction. Thus the plaintiff has grossly abused the process of the Court by filing second application for temporary injunction. Impugned judgment Annexure P-11 passed by the lower appellate Court is patently perverse and illegal and is completely unsustainable and suffers from jurisdictional error. Lower appellate Court completely ignored the fact that earlier attempt of plaintiff to seek similar relief of temporary injunction had already been declined by trial Court as well as by lower appellate Court.
Resultantly, instant revision petition is allowed. Impugned judgment Annexure P-11 passed by the lower appellate Court is set aside. Second application Annexure P-7 for temporary injunction filed by respondent no.1-plaintiff is dismissed. However, nothing observed hereinbefore shall be construed as expression of opinion on merits of the suit.
22nd August, 2013 (L. N. MITTAL)
'raj'
JUDGE
Raj Kumar
2013.08.26 12:32
I attest to the accuracy and
integrity of this document
Chandigarh