Important Point – Relief of injunction being a discretionary relief cannot be claimed as a matter of right.

RSA 168/2016

1. This Regular Second Appeal under Section 100 of Code of Civil Procedure, 1908 has been filed by the appellant/plaintiff impugning the concurrent findings of the Courts below i.e. order dated 12th February, 2015 passed by learned Trial Court in CS No.61/2014 whereby the suit has been dismissed holding that the plaintiff has concealed the material facts which was evident from the record thus there was no requirement of adducing evidence on said facts, the order dated 23rd May, 2016 passed in M.C.A. No.03/2015 whereby the First Appellate Court upheld the decision of the learned Trial Court and dismissed the appeal.

2. The Civil Suit No.61/14 was filed on 26th June, 2014 by the appellant/plaintiff Hari Chand Saini impleading Uday Raj and his wife Pinki as well as SHO, PS Inderpuri as defendants pleading that he had been running nursery on a piece of land measuring 4,000 sq. yds which was taken on rent from Sh.Ram Singh Rawat (now deceased, represented through his LR i.e. respondent No.3). He had been running nursery under the name and style of M/s Sainik Nursery for about 30-40 years.

3. However, the intention of the erstwhile owner Sh.Ram Singh Rawat became dishonest and at his instance the respondent No.1/defendant No.1 and his wife – respondent No.2/defendant No.2 started causing hindrance in the enjoyment of the property and also caused damage to the nursery.

4. At the behest of Sh.Harshvardhan, LR of Sh.Ram Singh Rawat, the respondent Nos.1 & 2/defendant Nos.1 & 2 started causing nuisance. Various complaints made to the concerned SHO also did not desist them from causing the nuisance as the concerned SHO refused to interfere in the matter on the ground that the dispute was of civil nature. No relief was claimed against defendant No.3 – the SHO, PS Inderpuri.

5. In para 6 & 7 of the plaint in Civil Suit No.61/2014, the averments have been made against defendant Nos.1 & 2 that they were acting at the instance of Harshvardhan (defendant No.3), but Harshvardhan was not impleaded as a party. The averments as made in para 6 & 7 giving rise to cause of action are as under:

“6. That since the defendant No.1 is a person of criminal nature and since he had always been working at the instance of Sh.Ram Singh Rawat in creating nuisance to the Plaintiff and his employees as such after the death of Sh.Ram Singh Rawat, his son namely Sh.Harshvardhan @ Raja also started boosting the defendant No.1 to continue with his nefarious activities with the motive to dispossess the Plaintiff from the nursery plot. In such attempts and endeavors, the defendant No.1 alongwith his wife (i.e. defendant No.2) and his children forcibly entered into the Nursery plot and took possession of two rooms on the rear side on 05.12.2011. It is submitted that since the local Police did not take any action against the defendant No.1 as such the Plaintiff got filed another Criminal Complaint case against him and the same is also pending in the Court of Ms.Vijeta Singh, M.A., Patiala House Courts, New Delhi. Photocopies of all the four criminal complaint cases are annexed herewith.

7. That the defendants No.1 and 2 started creating nuisance to the Plaintiff and his employees at the instance of Sh.Harshvardhan @ Raja with the sole motive to dispossess the Plaintiff from the Nursery Plot/land. ……………..”

6. The prayer made in the Civil Suit No.61/2014 was only against defendants No.1 and 2 and reads as under:

“(a) a decree of Permanent Injunction in favour of the Plaintiff and against the defendants No.1 & 2, their servants, agents, attorneys etc. thereby restraining them from causing any hindrance in repair of the main gate and also from putting any hindrance and/or any filth, dirt etc. in the passage as shown red in the site plan annexed with the Plaint.

(b) a decree of Permanent Injunction in favour of the plaintiff and against the defendants No.1 & 2, thereby restraining them, their servants, agents, attorneys etc. from removing/digging soil from the wel