Allowed

Bheem Sain and Anr. v. Arjun Singh and Ors.

Punjab & Haryana HC17 Apr 2009CR/5767/2008

Case brief

AI extract

What is this about?

In Civil Revision No.5767 of 2008 regarding a dispute over demolition of an obstructing house, this court held that a civil suit cannot validly challenge an order under Section 133 Cr.P.C. and restored the lower court's order allowing the demolition.

What did the court decide?

Impugned order of Additional District Judge reversed; Trial Court order restored; Main suit to be disposed within three months.

Bheem Sain and Anr. Vs Arjun Singh and Ors. — Property and Title | Punjab & Haryana HC (2009)

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Civil Revision No.5767 of 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.5767 of 2008 Date of decision: 17.04.2009.

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Bheem Sain and another

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Petitioner

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Versus

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Arjun Singh and others

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...Respondents

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CORAM: HON'BLE MR. JUSTICE S.D.ANAND.

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Present: Mr. A.K.Chopra, Senior Advocate with Mr. Rajnish Chauhan, Advocate for the petitioners

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Mr. A.K.Khunger, Advocate for the respondents No. l

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S.D.ANAND, J.

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The learned Trial Court negatived the plaintiffrespondent's plea for the restraint of defendants-respondents from demolishing a part of his house which allegedly obstructed the passage. It was held by the learned Trial Court that “the defendants are only trying to vacate the encroached portion of the passage leading to their land.”

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In appeal, however, the learned Additional District Judge reversed the finding and ordered the restraint of defendantspetitioners “from demolishing any part of the house of the plaintiff/appellant on the basis of the order dated 24.3.2006 passed

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Civil Revision No.5767 of 2008

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by the SDM, Abohar forcibly and illegally, except in due course of law.”

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It is apparent from the record that the defendantsrespondents had applied for the invalidation of the impugned order passed by the learned S.D.M. vide which the removal of the impugned encroachment had been ordered in terms of provision of Section 133 of the Cr.P.C. It is apparent from a perusal of the plaint (copy whereof has been shown at the time of arguments before this Court) that the factum of that order had not been called into question. It is only in the course of the presentation before this Court that the learned counsel for the plaintiff-respondent argues that the entire exercise is a political managed affair and that even the application, on the basis whereof the proceedings had been taken is not available on the record. No such averment finds mention in the plaint. A plea to that effect cannot be allowed to be raised in revision in the absence of pleadings at the trial.

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If the plaintiff-respondent has a grievance qua the validity of the impugned order (on an averment that provision of Section 133 Cr.P.C. had not been complied with), he may take recourse to the remedy available to him in the form of an appeal or revision. Sub Section 2 of Section 133 Cr.P.C. prima-facie appear to the filing of a suit to challenge of an order of that category. If the affected party has a grievance with regard to the validity of an order under Section 133 Cr.P.C., the challenge thereto has to be filed before the competent Court of law on the appellate or revisional side by that party. That

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Civil Revision No.5767 of 2008

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party cannot validly file a civil suit against the order passed by the S.D.M. in the proceedings under Section 133 Cr.P.C.

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In the light of foregoing discussion, the petition shall stand allowed. The impugned order passed by the learned Ist Appellate Court shall stand reversed. The order passed by the learned Trial Court shall stand restored.

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However, in the circumstances of the case, it is deemed just and appropriate to order that the learned Trial Court shall dispose of the main suit itself within three months from the next date of hearing. The learned counsel for the parties state at the bar that the parties shall extend all possible cooperation in concluding their respective evidence at the trial at an early date.

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Disposed of accordingly.

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April 17, 2009 (S.D.Anand) Pka Judge

Bheem Sain and Anr. v. Arjun Singh and Ors.

Case brief

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Bheem Sain and Anr. v. Arjun Singh and Ors.

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