Civil Revision No.7205 of 2008 [1 ]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
...
Civil Revision No.7205 of 2008
Decided on : May 05, 2009
Kewal Singh
… Petitioner
VERSUS
Nirmal Ram
… Respondent
CORAM :
HON’BLE MR.JUSTICE A.N.JINDAL
Present: Mr.Malkeet Singh,
Advocate for the petitioner.
A.N.JINDAL, J.-
This revision petition has arisen out of the order dated
17.11.2008 (Annexure P-3) passed by Additional District Judge,
Nawanshahr, dismissing the appeal against the order dated 27.5.2006
passed by Civil Judge (Junior Division), Nawanshahr, declining the
grant of injunction restraining the defendant from stopping the flow of
water from the drain, shown in red colour in the site plan (Annexure
P-1).
The plaintiff – petitioner has come up with the plea that he
is owner of the house shown in blue colour in the site plan and the daily
waste water and rainy water of his house flows through the `pucca’ drain
(as shown in red colour in the site plan) for the last more than 50 years
Civil Revision No.7205 of 2008 [2 ]
and the defendant – respondent is threatening to stop the said flow of
water through the said drain, whereas, case of the respondent is that he is
owner of the property, where the drain is alleged to have been existing,
while no such drain is existing at the spot. The rainy water and the
daily waste water from the house of the petitioner falls in the compound
of the respondent and the petitioner has no right to throw the dirty water
in his compound.
Heard.
From the scrutiny of the impugned order as also from the
contentions of the parties, it transpires that the petitioner is alleging a
drain abutting the street on the northern side of the house of the
respondent, whereas, there is a complete denial on the part of the
respondent. The existence of the street as well as the drain could only be
ascertained by way of evidence or by appointing a Local Commission. If
the plea set up by the petitioner (plaintiff) is ignored, then the waste
water and the rainy water of his house, if not allowed to flow, will cause
irreparable loss to his own house, particularly when the petitioner does
not show any other outlet for passing of the said water. Similarly, if
there is no such drain on the northern side of the house of the respondent
(defendant), then certainly the petitioner has no right to throw the waste
water and rainy water in his plot.
In the circumstances, in order to ascertain the factual
position at the spot, the appointment of Local Commission at the spot
has become essential. The courts below have gone by emotions and has
not tried to feel about the real controversy between the parties.
Civil Revision No.7205 of 2008 [3 ]
Consequently, I allow the petition, set aside the impugned
order dated 17.11.2008 (Annexure P-3) and remit the case back to the
Trial Court to allow the parties to file documents and also to appoint a
Local Commission and, then, decide the application under order 39
Rules 1 and 2 of the Code of Civil Procedure, accordingly.
Parties are directed to appear before the Trial Court
on May 15, 2009.
May 05, 2009 ( A.N.JINDAL ) `gian' JUDGE