Dinesh v. Lalauva @ Udai Singh

Court No. - 6 Case :- MATTERS UNDER ARTICLE 227 No. - 5163 of 2023 Petitioner :- Dinesh Respondent :- Lalauva @ Udai Singh Counsel for Petitioner :- Anoop Srivastava Counsel for Respondent :- Jaleel Ahmad Hon'ble Rajnish Kumar,J.

¶1Heard Sri Anoop Srivastava, learned counsel for the petitioner and Sri Jaleel Ahmad, learned counsel for the respondent.

¶2Submission of learned counsel for the petitioner is that the final relief claimed in the suit filed by the respondent for permanent injunction has been granted by the interim injunction by the trial court by means of the order dated 09.04.2021 passed in Regular Suit No.710 of 2018(Lalva versus Dinesh). The petitioner had preferred an appeal but the same has also been dismissed by the District Judge, Unnao by means of the order dated

11.08.2023 without considering the grounds raised by the petitioner. Therefore the petitioner is constrained to approach this Court by means of the present petition. He relies on State of Uttar Pradesh and others versus Ram Sukhi Devi;2005 ALJ 214.

¶3Per contra, learned counsel for the respondent submits that interim injunction has rightly been passed after considering the prima facie case, balance of convenience and irreparable loss to the respondent. Therefore the impugned orders have rightly been passed in accordance with law. He further submits that the grounds taken by the petitioner before this Court were not taken before the appellate court. The appellate court had dismissed the appeal after considering the grounds raised by the petitioner.

¶4Having considered the submissions of learned counsel for the parties, I have perused the records.

¶5The respondent has filed a suit for permanent injunction against the petitioner with a prayer that petitioner may be directed not to make any drainage for discharge of rain water and polluted water towards the house of the respondent. Before the trial court, no objection was filed by the petitioner against the application for interim injunction. Learned trial court, after considering the grounds raised by the respondent and affording opportunity to the petitioner as well considering the Commission report found that there is prima facie case and balance of convenience in favour of the petitioner and in case the drainage is made, the respondent would suffer irreparable loss and the petitioner, if wants to discharge polluted water and rain water he may connect a drainage from his house to pond and accordingly granted an interim injunction by means of the order dated 09.04.2021.

¶6The petitioner preferred an appeal against the said order on the ground that the said drainage is not in the ownership of anybody and on the basis of same, no prima facie case, balance of convenience or irreparable loss can be caused to anybody. However, ground has been taken that unless the commission report is proved, the same cannot be relied. Considering the grounds raised by the petitioner in the appeal, the appellate court has dismissed the appeal, by means of the order dated 11.08.2023 passed in Civil Appeal No.50 of 2022, recording a finding that in case the drainage is made for discharge of polluted water or rain water, the respondent would suffer irreparable loss during pendency of the Suit. The relevant portion of the order passed by the appellate court in paragraph 11 is extracted herein-below: "11. इस ्ቚककार पतकावलली कके अवललोकन सके स्प्ቖ हहै कक अपलीलकारर/्ቚकतिवकादली नक्शका नजरली वकादपत मम अ्ቌर अ, ब, स, द सके दकशरति ्ቚत्यरर / वकादली कके सहन, जलो उसककी भभूकम नम्बर 434 कका जजुज भकाग हहै, सके नवशके मम दकशरति अ्ቌर स, द ,य ,र स्रकान सके नकालली कनककालनका चकाहतिका हहै। उ्ሹ अकभवचन शपर पत 8 ग सके समरररति हहै तिरका ्ቚत्यरर / वकादली दकारका अपनके करन कके समररन मम नकल नक्शका चकबबंदली व इबंतिखकाब खतितौनली ्ቚस्तिजुति ककी गई। अपलीलकारर/्ቚकतिवकादली ककी ओर सके उ्ሹ अकभवचनोሪ कके खण्डन मम कलोई आपरቈኌ एवबं ्ቚकति शपर पत ्ቚस्तिजुति नहीሻ ककयका गयका हहै। ऐसली सस्रकति मम इस स्तिर पर ्ቚ त्यरर / वकादली कके अकभवचन अखसण्डति हहै। य्ቕकप अपलीलकारर/्ቚकतिवकादली ककी ओर सके अपलील ककी पतकावलली पर नकालली कनमकारण कके सम्बबंध मम पभूवर ्ቚधकान कके ्ቚमकाण-पत ्ቚस्तिजुति ककयके गयके हह, रजनकके सबंबबंध मम कनष्करर सकाቌኚय अकभरलरखति ककयके जकानके कके उपरकान्ति, वकाद कके अबंकतिम कनस्तिकारण कके समय हली कदयका जका सकतिका हहै। वकाद कके तिथ्य एवबं पररसस्रकतियोሪ कके दृक्ቖगति ्ቚरम दृ्ቖयका ककेस एवबं सजुकवधका कका सबंतिजुलन ्ቚत्यरर / वकादली कके प्ቌ मम बननका ्ቚतिलीति हलोतिका हहै। यकद दतौरकान वकाद अपलीलकारर/्ቚकतिवकादली दकारका ्ቚत्यरर / वकादली ककी भभूकम सके नकालली बनकाकर गबंदका एवबं बरसकातिली पकानली बहकायका जकातिका हहै, तिलो ्ቚत्यरर / वकादली कलो अपभूणरनलीय ्ቌकति हलोनके ककी सबंभकावनका सके इन्ककार नहली ककयका जका सकतिका हहै। जहकाबं तिक अपलीलकारर/ ्ቚकतिवकादली ककी ओर सके ्ቚस्तिजुति तिकर कक नकालली ककसली व्यक्ሹ ककी व्यक्ሹगति कमलककयति नहीሻ हलोतिली हहै तिरका कमलीशन आख्यका 16 ग पजुक्ቖककति नका हलोनके कके ककारण, उसकका अवलम्ब नहीሻ रलयका जका सकतिका हहै, सकाቌኚय कका कवरय हहै। रजस पर वकाद कके अबंकतिम कनस्तिकारण कके समय हली मबंतिव्य व्य्ሹ ककयका जका सकतिका हहै। उपरलो्ሹ कववकेचन सके न्यकायकालय इस कनष्करर पर पहहबंचतिली हहै कक कवदकान अवर न्यकायकालय दकारका पकाररति आ्ቌकेकपति आदकेश मकामलके कके तिथ्योሪ कका सम्ቇ पररशलीलन कके उपरकान्ति कवरधनजुसकार पकाररति ककयका गयका हहै। रजसमम ककसली ्ቚककार कके हस्तिका्ቌकेप ककी आवश्यकतिका ्ቚतिलीति नहली हलोतिली हहै। तिद्नजुसकार ्ቚस्तिजुति ्ቚककीणर अपलील कनरस्ति ककयके जकानके यलोग्य हहै।"

¶7In view of above, it is apparent that the ground raised by the petitioner before this Court was not raised before the appellate court. So far as the grounds raised by the petitioner is concerned, this Court is of the opinion that the trial court has passed the order after coming to the conclusion that prima facie case and balance of convenience are in favour of the respondent and in case the interim injunction granted by the trial court is not granted, he would suffer irreparable loss and injury. Learned counsel for the petitioner failed to challenge the said findings or argued anything in regard to the aforesaid findings recorded by the trial court as well as recorded by the appellate court considering the grounds raised by the petitioner.

¶8So far as the judgment relied by learned counsel for the petitioner in the case of State of Uttar Pradesh and others versus Ram Sukhi Devi (Supra) is concerned, the Hon'ble Apex Court has observed that the interim relief may not be granted for no better reason than that of a prima facie case has been made out without being concerned about the balance of convenience, the public interest and a host of other considerations. On repeated query being put to learned counsel for the petitioner, he failed to indicate as to what other interim injunction could have been granted in the aforesaid facts and circumstances of the case in which, in case of discharge of polluted water or rain water towards the house of any body may cause hazardous situation of spreading of diseases causing irreparable loss and injury, learned counsel for the petitioner failed to answer the same. Even otherwise the option of making a drainage towards pond has not been disputed.

¶9In view of above and considering the overall facts and circumstances of the case this court is of the view that there is no illegality or error in the impugned order.

¶10At this stage, learned counsel for the petitioner submits that aforesaid suit was filed in the year 2015 and more than 5 years have passed, therefore a direction may be issued for expeditious disposal of the suit. To which there is no objection by the other side. However, copy of the order sheet has not been placed on record. Learned counsel for the parties have also failed to indicate the stage of the Suit.

¶11This court on administrative side has already issued directions to the court below to obtain zero pendency of cases which are more than five years old. In view of directions already issued on administrative side, this court is not inclined to pass any further order on judicial side.

¶12However, it is always open for the petitioner to move appropriate application before the court before which the matter is pending for expeditious hearing. In case any such application is moved within two weeks from today the same shall be considered and disposed of within two weeks thereafter and endeavour shall be made to decide the Suit within a time frame.

¶13With the aforesaid, the petition is dismissed.

¶14No order as to costs. Order Date :- 1.11.2023 Akanksha High Court of Judicature at Allahabad, Lucknow Bench