RSA No. 3411 of 2014 (O&M) 1

104

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

RSA No. 3411 of 2014 (O&M)

Date of decision : 03.05.2016

Malkiat Singh

..... Appellant(s)

Versus

State of Punjab & ors.

.... Respondent(s)

CORAM : HON'BLE MR. JUSTICE JITENDRA CHAUHAN

Present:

Mr. P.S. Kanwar, Advocate,

for the appellant(s).

JITENDRA CHAUHAN.J.

CM-7871-C-2014

Prayer in this application is for condoning the delay

of 10 days in filing the appeal. It is averred in the application that due

to sudden ill health of the wife of the appellant, he could not contact his

counsel at Chandigarh for filing the instant appeal in time.

Keeping in view the averments made in the

application which is duly supported by an affidavit of the appellant, the

delay which has occurred seems to be neither intentional nor with an

ulterior motive. In these circumstances, the application is allowed and

the delay of 10 days in filing the appeal is condoned.

CM-7872-C-2014

There is delay of 18 days in re-filing the appeal. It is

mentioned in the application that the present appeal was filed on

Sumit Srivastava

2016.06.25 13:12

I attest to the accuracy and

integrity of this document

RSA No. 3411 of 2014 (O&M) 2

31.03.2014 and the same was returned on 01.04.2014 with certain

objections. The appellant after obtaining those documents sent the

same to his counsel through courier, but the clerk of the counsel

inadvertently put those documents in another file. Therefore, the delay

of 18 days occurred.

Keeping in view the averments made in the

application and the fact that the application is supported by a duly

sworn affidavit, the delay of 18 days in re-filing the appeal stands

condoned. The application is allowed.

Main case

Plaintiff, Malkiat Singh has filed this second appeal,

having been non-suited by both the Courts below.

It is the case of the plaintiff-appellant (for brevity 'the

appellant') that he is owner in possession of residential house marked

by letters 'XYZB' and haweli marked by letters 'CDEFG' shown in

yellow colour in the site plan attached with the plaint situated in

Village Khadiala Sainian, Tehsil and District Hoshiarpur. There is a

street in which gate of the house of the appellant is affixed at point

'AB'. There is also gate at point 'CD' which opens into the haweli of the

appellant and is the only way to enter the house as well as haweli.

Defendant/respondent-Gram Panchayat is inimical towards the

appellant due to party faction in the village. The defendant/respondents

(for brevity 'the respondents') in connivance with each other are

adamant to change the level of the street at point 'ABCD' shown in red

Sumit Srivastava

2016.06.25 13:12

I attest to the accuracy and

integrity of this document

RSA No. 3411 of 2014 (O&M) 3

colour in the site plan attached. Memo no. 1125 dated 23.09.2002 and

Memo no. 1177 dated 20.12.2003 were illegally got issued by

respondent No. 3 asking the appellant to remove the ramp. Hence the

suit.

Respondent Nos. 2 and 3 contested the suit and filed

separate written statements controverting the averments made in the

plaint. It is pleaded that since the proposed work, as alleged by the

appellant, has already been completed, the suit is not maintainable. The

appellant did not remove the ramp despite notices. Police help was also

sought in accordance with law and the ramp had already been removed

much earlier to the filing of the suit. It is further submitted that in fact it

was an obstruction of 12 feet in length, 5 feet in width and 3 feet in

height which caused inconvenience and the same was removed as per

law.

The learned trial Court after hearing the learned

counsel for the parties and evaluating the material available