IMIMPORTANT POINT
Injunction--Order refusing injunction is of discretionary character--Ordinarily Court of appeals will not interfere with the exercise of discretion by the trial Court.

Rakesh Kumar Garg, J.

1. CM No. 13309-CII of 2009

CM is allowed subject to all just exceptions.

CM disposed of.

Civil Revision No. 3180 of 2009

This is plaintiffs revision petition challenging the order dated 16.03.2007 and 09.04.2009 passed by Civil Judge(Jr.Divn.)Amritsar and Additional District Judge, Amritsar, respectively, whereby application filed by the petitioner under Order 39 Rule 1 and 2 CPC filed along with the civil suit for grant of ad interim injunction restraining the respondents from demolishing the gate in dispute was rejected.

2. As per the averments made in this petition, the petitioner filed a suit for permanent injunction against the defendants/respondents restraining them from making any passage from Point AA1 to BB1 by demolishing the gate shown as red in the site plan of the property bearing No. 3425/XXI as mark `G

3. It is the case of the petitioner that he and his brothers are owner in possession of the property in dispute which was purchased by Harbans Singh their father vide sale deed dated 02.11.1946 and after his death he along with his brothers had inherited the same. House of Mukhtiar Singh, Anup Singh etc.are situated on the western side of the property of the plaintiff did not have any type of opening towards house of the plaintiff. However, they threatened to open access in wall A1B1 towards side of plaintiffs property. Thus, plaintiff filed suit for permanent injunction titled as "Jagbans Singh & Ors. v. Mukhtiar Singh which was decreed vide judgment and decree dated 18.11.2004. Another suit was filed by one Karam Singh against the plaintiff which was dismissed by the Court of Sh.Ram Kumar Singla Civil Judge(Jr.Divn.), Amritsar on 29.01.2002 holding that there does not exist any passage from point AA1 to BB1 as shown in the site plan and defendants have no right to make any passage of private property from the plaintiff.

4. Along with the suit plaintiff filed application under Order 39 Rules 1 and 2 read with Section 151 CPC claiming the same relief by way of interim injunction during the pendency of the main suit.

5. The suit was contested by defendants No. 2 and 3 by filing joint written statement wherein it was averred that plaintiff had mislead the Court by putting forward incorrect facts as the plaintiff had not mentioned the area of property purchased by his father vide sale deed dated 02.11.1946 and they have also sold a part of the property. In the year 1997 Harpal Singh, real brother of the plaintiff installed a gate illegally at point AA1 marked as `G in the attached site plan and upon complaint of inhabitants of locality a show cause notice was issued to Harpal Singh for demolition of illegal construction by the Municipal Corporation and therefore the authorities demolished the gate in the year 1997. It was further averred that disputed property was a public passage as per Town Planning Scheme for the area known as Adarsh Nagar and Labh Nagar, Ram Tirath Road, Amritsar prepared by DTP dated 27.11.1986 approved and sanctioned by Municipal Corporation and in that site plan the disputed area has been shown as public passage which plaintiff wants to encroach upon, illegally. Rest of the allegations were denied specifically.

6. After considering the arguments and the material on record, the trial Court dismissed the application filed by the petitioner under Order 39 Rule 1 and 2 vide impugned order dated 16.03.2007 observing as under :

"On the other side, defendants No. 2 and 3 took a particular plea that plaintiff has not come to the Court with clean hands and no clear cut area of the property has been described which was purchased by father of plaintiff vide sale deed dated 02.11.1946. In fact the property in dispute is public passage as shown in site plan prepared by Town Planning Department. To establish their stand defendants have placed on record show cause notice issued by Estate Officer to the brother of plaintiff regarding demolition of gate at point `G. It is case of