Sh. Ramesh Kumar Vs. Sh. Chamel Singh - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.sanjay karol, j.1. the present petition has been filed under section 115 of the code of civil procedure assailing the order dated 8.12.2008 passed by the additional district judge, sirmaur district at nahan, h.p. in civil misc. appeal no. 9-n/14 of 2008 whereby the order passed by the civil judge (junior divison), nahan, district sirmaur, h.p. in civil misc. application no. 48/6 of 2007, dated 17.5.2008 stands affirmed.2. petitioner is referred to as the plaintiff and the respondent is referred to as the defendant.3. the plaintiff filed civil suit no. 40/1 of 2007, titled as ramesh kumar v. chamel singh in the court of civil judge (junior division) nahan, district sirmaur, h.p. seeking permanent prohibitory injunction. alongwith the suit the plaintiff filed an application under order 39 rules 1 and 2 read with section 151 c.p.c. alleging that the plaintiff is co-owner of the land comprised in khata khatauni no. 1/1, khasra no. 103/2, measuring 11.1 bighas, situated at mauja devni, pargana khol, tehsil nahan, district sirmarur, h.p. (hereinafter referred to as the suit property). the land was allotted to sh. ajmer singh alongwith one smt. supna devi widow of late sh. jiwan singh alongwith other land vide mutation no. 753 dated 30.1.2004. after the demise of smt. supna devi her half share devolved upon the plaintiff and his brothers which is evidenced by mutation no. 779 dated 24.6.2005 and also the record of rights i.e. jamabandi for the years 2002-2003. the plaintiff is residing separately from his father and the suit property being exclusively possessed by him pursuant to a family partition effected by his father, the plaintiff is the exclusive owner of the suit land. the defendant is owner of the land comprising khasra nos. 102 and 103/1 which is adjacent to the suit land. the defendant's land is being independently irrigated through haudi no. 1 of kacha kuhal. however, with evil design the defendant forcibly tried to enter the suit land and by digging the same started creating another irrigation channel from haudi no. 2 as depicted in the site plan. the defendant having no right, title and interest over the suit land is encroaching upon the plaintiff's valuable right and interest by creating a water channel through the suit land.4. the defendant opposed the suit by filing a written statement and contested the application for interim relief, inter alia on the ground that the plaintiff has not only concealed but mis-represented certain facts with the intention of misleading the court and obtaining an order of injunction in its favour.5. the suit was an abuse of process of law and filed by the plaintiff in collusion with his father sh. ajmer singh only to delay execution of the judgment and decree passed in civil suit no. 29/1 of 2004, titled as ajmer singh v. chamel singh, dated 31.8.2005 as affirmed by the first appellate court in terms of its judgment and decree dated 5.8.2006. the plaintiff concealed the factum of the earlier litigation and failed to disclose that sh. ajmer singh and the defendant are real brothers and in an earlier litigation the defendant's right of having a channel through the suit land stood established and decreed. no partition as pleaded between the parties ever took place between the plaintiff and his father and the revenue entries were got effected in collusion with the revenue authorities. hence the application be dismissed.6. both the courts below have accepted the defendant's contention. the learned counsel for the plaintiff while arguing could not show as to how the finding of fact recorded by the court below are erroneous, not borne out from the record or are perverse in any manner.7. what has been argued with vehemence is that the decree passed in the earlier litigation is about to be executed and if stay is not granted the suit would become infructuous. i am afraid the contention needs to be rejected. this cannot be a ground for granting an interim order. the law with regard to interim injunctions is well settled.8. the constitution bench of the hon'ble supreme court in state of karnataka v. state of a.p. and ors. : (2000) 9 scc 572 has held as under:injunction being a discretionary remedy, a court may not grant an order of injunction, even if all the three necessary ingredients are established and those ingredients are prima facie case of infraction of legal rights, such infraction causes irreparable loss and injury to the plaintiff and the injury is of such nature that if cannot be compensated by way of damages.9. undisputedly the plaintiff's father and the defendant were litigating and in terms of judgment and decree dated 31.8.2005, passed by civil judge (senior division) nahan, in civil suit no. 29/1 of 2004, titled as ajmer singh v. chamel singh as also judgment and decree dated 5.8.2006 passed by the district judge at nahan in civil appeal no. 67-ca/13 of 2005, the defendant's right to have a water channel through the suit land for irrigating his own land comprising in khasra nos. 103/1 and 102 stands established. the plaintiff has deliberately concealed this fact while filing the suit.10. there is nothing on record to show that the relations between the plaintiff and his father are strained. the defendant's well established right needs to be protected and grant of interim injunction in favour of the plaintiff would in fact cause irreparable loss to the defendant. plaintiff has not been able to show that any of the essential ingredients necessitating grant of interim injunction stand established in the present case. the courts below have been right in dismissing the applications for interim injunction. it can be said that the fresh suit is only a desperate attempt on the part of the failed contestant to over reach the orders passed by a civil court.11. for the aforesaid reasons the present petition is dismissed.cmp no. 153 of 200912. disposed of.