Teku vs Sadhu and Others

Swatanter Kumar, J.—This revision is directed against the order dated 19.2.1999 passed by the learned Civil Judge (Junior Division), Narwana, vide which the learned Court disposed of an application filed u/s 151 of the CPC granting the following relief:-

".....I do not think that construction of Pulia was illegal act. Therefore, in the interest of justice application for restoration is allowed but since it has not been proved to my satisfaction who was responsible for the breaking of the slabs, I direct that costs of restoration of the Pulia shall be borne by parties to the suit equally. Accordingly, the application is disposed of. To come up on 27.3.1999 for filing replication and settlement of issues. Nothing stated above shall be taken as expression of my opinion on merits of case."

The basic contention raised on behalf of the petitioner, in this petition, is that once the Court has specifically observed in the order that it was not satisfied as to who had demolished the Pulia or its slabs, it could not have directed the re-construction of the pulia at the costs of the parties, in any case, at the costs of the petitioner. Reference to necessary facts would be necessary.

Teku had filed a suit for permanent injunction to the effect that he is owner in possession of the land measuring 86 kanals 16 marlas and adjoining there is a Rajbaha and the defendants be restrained from forcibly and illegally making a bridge over the rajbaha for the passage through the fields of the plaintiffs.

The suit was contested by the defendants.

The learned trial Court vide its order dated 13.11.1997, had appointed Mr. Balwan Singh, Advocate as Local Commissioner to inspect the site and report to the Court. The Commissioner went to the site on 13.11.1997 itself and submitted his report on 17th November, 1999. Relevant part of the report reads as under:-

"2) That the rajbaha which follows from north to south is about five feet wide.

3) That on path No. 99 on the rajbaha there are three concrete slabs, each of size 5-1/2'' long and 2-1/2'' width and 1/2'' thickness. The slab on northern side is marked as No. 1 and its both end are placed on the two banks of the rajbaha and both the ends are covered with sand and grass is growing, which shows that this slab is old one. The remaining two slabs are resting on temporarily placed bricks and the ends of these two slabs are naked. This clearly indicate that these slabs have been placed recently, 2-3 days back. The masavi taken from the file is attached with the report. Hence the report is submitted. Dated 17.11.1997."

Again Local Commissioner was appointed on 22nd January, 1988, who reported that Pulia was in existence. The plaintiff filed an application under Order 39 Rule 2-A of the CPC alleging that the defendants have violated the status quo order of the Court dated 10th November, 1997. The plaintiff also filed another application under Order 10 Rule 2 read with Section 151 of the CPC praying that the record from the Water Service Division be summoned to find the truth behind the allegations made by the defendant that the Pulia was constructed under the instruction of the department in the year 1994. Both these applications were dismissed by the impugned order, while third application filed u/s 151 of the CPC was allowed as afore noticed. All these orders could not be assailed in one revision.

During the course of hearing, learned counsel for the petitioner emphasised that he would be pressing this revision in relation to order passed in the application u/s 151 of the CPC filed by the defendant, which was allowed.

I do not consider it necessary to go into greater details of this case because the order passed by the learned trial Court in allowing the application u/s 151 of the CPC on the face of it suffers from self contradiction. If the Court itself was not certain as to who was responsible for demolition or breaking the slabs, as claimed by the applicant, it could not order restoration of the Pulia at the costs of the parties.

Furthermore, there is a serious dispute with regard to the two reports submitted by the different Local Commissioners appointed by the Court whether the Pulia (small bridge), as subsequently pleaded by the applicant-defendant, did not exist on 13th November, 1997, when the first Local Commissioner visited the site. Subsequent report of the Commissioner in no way improve the case of the applicant as the suit itself relates to the relief with regard to construction of Pulia (small bridge) over the rajbaha. As it was the main contention in issue by either party to the suit, it would have been proper that the learned trial Court should not have ordered restoration of the Pulia at the costs of the present petitioner. A party, which is not guilty either for violating the order of the Court or damaging the property subject matter of the suit, normally could not be directed to pay the costs for reconstruction of such property (Pulia).

Furthermore, it is also conceded that no record or document was placed on the file to show that in compliance to the alleged permission granted by the department in the year 1994 some estimate was actually prepared and the Pulia was constructed, as alleged. As per the letter dated 25.7.1994 of the department, sanction was accorded by the Superintending Engineer on the conditions that ex penses would be borne by the beneficiaries vis-a-vis other conditions and the Pulia was to be constructed. Nothing material in this regard has come on record. Still this would be a matter of controversy to be gone into during the course of trial.

Consequently, in view of the above discussion, the order passed by the learned trial Court on the application of the defendant directing the restoration of the bridge at the costs of the petitioners is hereby set aside, though without any order as to costs. The petitioner would be at liberty to challenge the other part of the orders, if he so advised in appropriate proceedings.