Civil Revision No. 1549 of 2006
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 1549 of 2006 (O&M)
Date of decision: 15.07.2009
Banti
....Petitioner
Versus
Harjit Kaur and others
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: - Mr. H.S. Bhullar, Advocate,
for the petitioner.
Mr. Vikas Jain, Advocate,
for the respondents.
*****
VINOD K. SHARMA, J (ORAL)
CM No. 13797-CII of 2008
This application under Section 151 of the Code of Civil
Procedure has been moved for revival of C.R. No. 1549 of 2006 decided
on 9.10.2007.
Learned counsel appearing on behalf of the applicant-
petitioner states, that the counter claim raised by the petitioner for mesne
profit by way of damages and use and occupation was still pending
adjudication and had not been withdrawn, therefore, the statement made
Civil Revision No. 1549 of 2006
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by respondent No. 1 was not correct. Revision petition had not become
infructuous, as stated.
On consideration, and in view of the averments made in the
application, C.M. is allowed, order dated 9.10.2007 is recalled and the
case is restored to its original number.
CR No. 1549 of 2006
This revision petition is directed against the order dated
20.2.2006 passed by the learned Civil Judge (Junior Division),
Chandigarh, on an application moved by the petitioner herein, seeking
direction to the respondent/plaintiff to pay a sum of Rs.30,000/- per
month as mesne profit during the pendency of the counter claim.
The respondent/plaintiff filed a suit for specific performance
of agreement to sell claiming therein, that 50% of the sale consideration
was paid to the owners of the property in dispute. The
respondent/plaintiff, therefore, sought specific performance of agreement
to sell.
The suit is being contested by the defendants.
However, the petitioner filed a counter claim seeking
possession of the property in dispute, and claimed mesne profit for use
and occupation.
During the pendency of the suit, application under Section 151
of the Code of Civil Procedure was moved for payment of Rs.30,000/-
per month as mesne profit.
The learned trial Court, on consideration of the respective
contentions of the parties, was pleased to dismiss the application by
holding, that the rights of the parties were yet to be determined,
Civil Revision No. 1549 of 2006
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therefore, at this stage the application moved for grant of mesne profit @
Rs.30,000/- per month was totally mis-conceived.
Learned counsel for the petitioner contends, that under the
principle of equity, the petitioner, being owner of the 1/4th share, was
entitled to mesne profit for use and occupation at least qua her share.
This contention of the learned counsel for the petitioner cannot
be accepted. The respondent/plaintiff has denied that any amount is
payable. The stand of the plaintiff is that he is holding the property
under the part performance of the agreement to sell and, therefore, is not
liable to pay any rent to the petitioner nor any damages for use and
occupation are payable.
The learned trial Court, in facts and circumstances was right in
dismissing the application, by holding that the dispute between the
parties was yet to be determined. Therefore, by way of interim relief, the
application filed could not be entertained.
The order being in consonance with the law, does not call for
any interference by this Court in exercise of revisional jurisdiction under
Article 227 of the Constitution of India.
No merit.
Dismissed.
(Vinod K. Sharma)
Judge
July 15, 2009
R.S.