The findings in the earlier round of litigation would operate as res judicata in the present case, and the court can dismiss an appeal due to extraordinary delay in filing without substantiated reasons.

ALKA SARIN, J.

CM-111-C-2018

This is an application for condonation of delay of 19 days in refiling the appeal.

For the reasons stated in the application, delay of 19 days in refiling the appeal is condoned. CM stands disposed off.

RSA-89-2018 (O&M)

1. The present appeal has been preferred by the plaintiff-appellant who has been unsuccessful before both the Courts below.

2. The brief facts relevant to the present lis are that the plaintiff-appellant filed a suit for perpetual mandatory injunction directing the defendant-respondents to remove the electricity poles, transformer, electricity wires and other accessories attached with the said transformer from the site ‘ABCD’ as shown in the plan attached with the plaint. The case set-up by the plaintiff-appellant was that he was owner in possession of a residential house as fully described in the head-note of the plaint and that the defendant-respondents had illegally, forcibly and at the back of the plaintiff-appellant installed the transformer and electricity poles along with wires and other accessories in the house of the plaintiff-appellant. It was further averred that a civil suit titled as Sat Pal Versus Punjab State Electricity Board was filed which was dismissed on technical ground. On notice, a written statement was filed raising preliminary objection that the plaintiff-appellant had not approached the Court with clean hands. On merits, the ownership of the plaintiff-appellant over the house was admitted except the portion where the electric poles of the defendant-respondents were existing. It was further averred that the plaintiff-appellant had earlier filed a civil suit which was dismissed. The plaintiff-appellant went in appeal against the said judgment and decree wherein the Appellate Court held that the defendant-respondents would remove at their own expenses the L.T. Pole from the courtyard of the plaintiff-appellant and that the defendant-respondents had the right to repair the damaged poles and to install new poles and transformer on the existing place. Replication was filed controverting the stand taken in the written statement and reiterating the stand taken in the plaint. On the basis of the pleadings of the parties, the following issues were framed by the Trial Court :

1. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP

2. Whether the plaintiff is entitled to permanent injunction as prayed for ? OPP

3. Whether the site plan produced by the plaintiff is not correct ? OPD

4. Whether the plaintiff is estopped from filing suit by his act, conduct and admission ? OPD

5. Whether the suit is hit by the principle of res judicata ? OPD

6. Relief.

3. The Trial Court vide judgment and decree dated 01.11.2006 held that the matter stood finally decided in the earlier litigation and the plaintiff-appellant could not reagitate the matter in the present suit. Aggrieved by the same, an appeal was preferred by the plaintiff-appellant which appeal was also dismissed vide judgment and decree dated 24.02.2009. Hence, the present regular second appeal.

4. Learned counsel for the plaintiff-appellant would contend that the poles installed by the defendant-respondents affect the utility and value of the property and that the installing of the transformer, poles and electricity wires would cause irreparable loss and damage to the plaintiff-appellant.

5. Heard.

6. It has concurrently been found by both the Courts below that in the earlier round of litigation the Appellate Court had modified the judgment and decree of the Trial Court with a direction to the defendant-respondents to remove at their own expenses the L.T. pole installed in the courtyard of the plaintiff-appellant within a month from the date of the order. However, as per the undertaking, it was made clear that the plaintiff-appellant herein would not be entitled to any compensation for the transformer and poles erected in his property. By way of the present suit the plaintiff-appellant wanted to reagitate the ma