Point of Law: Dismissal of Counter claim - In the absence of leading any evidence in support of the pleadings of the defendant, No error committed by the Courts below in dismissing the counter claim.

JUDGMENT :

Ravi Malimath, Judge

Aggrieved by the concurrent findings recorded by both the lower Courts in dismissing the defendant’s plea for counter relief, the defendant has filed this appeal. Parties are referred to as per their rank before the trial Court.

2. The plaintiff filed a suit against the defendant, seeking for a decree of mandatory injunction against the defendant, directing him to restore the possession of the suit land in its original position, namely, the course of water leading to the fields of plaintiff, comprised in Khata/Khatauni No.12/25 min, Khasra No.249/178/130/40, measuring 1-7 Bighas of Mauja Chakli, Tehsil & District, Solan etc.

3. On service of notice, the defendant put in appearance and filed the written statement. He raised a counter claim to restrain the plaintiff from causing any kind of obstruction or blockade in the drain shown in the attached map from point PX-1 to PZ-1 from changing the natural flow of drain water in any manner whatsoever etc. On considering the pleadings, the trial Court framed the following issues:-

1. Whether the drainage pipe line of the house of the plaintiff has been damaged by defendant in an illegal manner, as alleged? OPP

2. Whether the plaintiff is entitled for the relief of mandatory injunction, as alleged? OPP

3. Whether the plaintiff has no cause of action to file the suit? OPD

4. Whether the plaintiff is causing blockade of drainage pipe line, as alleged? OPD

5. Whether the defendant is entitled for the relief of decree of injunction by way of counter-claim, as prayed for? OPD

6. Relief.

4. In order to prove its case, the plaintiff examined two witnesses and marked five exhibits. The defendant examined three witnesses and marked five exhibits. Issues No.1, 2, 4 & 5 were held in the negative and issue No.3 was held in favour of the plaintiff. The trial Court dismissed the suit of the plaintiff as well as the counter claim by the defendant. Aggrieved by the same, an appeal was filed by the defendant. The Appellate Court dismissed the appeal. Hence, the present second appeal by the defendant.

5. By the order dated 05.09.2007, the appeal was admitted on the following two substantial questions of law:-

1. Whether the judgment of Additional District Judge is perverse, based on misreading of oral and documentary evidence and also pleadings of the parties and drawn a wrong inference from the facts proved on the record more particularly the documents PW1/A, DW1/A to DW3/A as also DW3/B to DW-3/D and D-1?

2. Whether the defendant appellant was entitled to relief of permanent prohibitory injunction in the facts and circumstances of the case and the judgment of District Judge is vitiated being not in accordance with Order 20 Rule 5 and also the judgment of this Hon’ble Court reported in AIR 2001 H.P. Om Parkash vs. State of Himachal Pradesh?

6. The learned counsels appearing on both sides, submit that the substantial question of law is required to be reframed and have addressed arguments on the same. On hearing them, the substantial question of law is reframed as follows:-

Whether both the Courts below committed an error in misreading the evidence on record and thereby wrongly dismissed the counter claim of the defendant?

7. Heard learned counsels.

8. The suit of the plaintiff, seeking a mandatory injunction, has been dismissed. There is no appeal filed against it. The consideration in this present appeal is so far as the counter claim filed by the defendant is concerned. The counter claim filed by the defendant reads as follows:-

5 “Counter Claim:

1. That the defendant has his residential house in Moza Chakli adjoining to the house of the plaintiff. The water of the bathroom of the defendant goes through a CI pipe as shown in the attached map from point PX to PX-1, and thereafter form point PX-1 to PZ-1 the water flows in an open drain made of stone in cement masonry. The said drain exists since long and for the last more than 30 years and no body ever objected the drainage of water. Now