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SANDEEP SHARMA, J. (ORAL) –

Instant petition filed under Article 227 of the Constitution of India, lays challenge to judgment dated 3.9.2021, passed by learned Additional District Judge, Sarkaghat, District Mandi, H.P, in Civil Misc. Appeal No.3 of 2020, affirming order dated 7.12.2019 passed by learned Civil Judge (Sr. Division) Court No.1, Sarkaghat, District Mandi, H.P, whereby an application having been filed by the respondent/plaintiff (hereinafter referred to as ‘plaintiff’) restraining the petitioners/defendants (hereinafter referred to as ‘defendants’) from causing nuisance on the suit land by discharging dirty and filthy water towards the house of plaintiff, came to be allowed.

2. Precisely, the facts of the case as emerge from the record are that the plaintiff filed a suit for permanent prohibitory and mandatory injunction restraining the defendants from throwing/discharging dirty/filthy and rainy water towards his house. Apart from above, plaintiff also sought decree of mandatory injunction directing the defendants to divert the flow of water through sewerage pipes in the land comprised in Khewat No.195/19, khatauni No.343 min/328, khasra No.659, measuring 0-10-00 hectares, situated at village Behar, Illaqua Suranga, Tehsil Sarkaghat, District Mandi, H.P (hereinafter referred to as ‘suit land’). Plaintiff averred that the suit land detailed hereinabove is Abadi Deh upon which, houses of the parties exist. He alleged that he had left space for ingress and egress of his house beneath his ground floor as indicated in the site plan, but defendants are throwing their entire dirty and rainy water on the passage and as such, nuisance is being caused to him and his family member. He also alleged that earlier the defendants had dug out a pit in their own land adjoining to their bathroom for discharge of dirty and rainy water, but now same is being discharged towards the house of the plaintiff, as a consequence of which, there is moisture and seepage of water towards the house of the defendants and house can collapse at any time. Alongwith the aforesaid suit, plaintiff also filed an application under Order 39 Rules 1 and 2 CPC praying therein, ad-interim injunction restraining the defendants from throwing their dirty and rainy water towards passage leading to his house during the pendency of suit. The aforesaid claim set up in the plaint as well as application for stay filed by the plaintiff came to be refuted by defendants by way of filing written statement as well as reply to the stay application, wherein they claimed that they had constructed their house in the year 1992 partially and remaining construction was done in the year 1997, which is prior to the construction of the house of the plaintiff. The defendants alleged that plaintiff himself damaged the path constructed by the Nagar Panchayat and raised construction in the month of November, 2012 as a result of which, natural flow of water as well as the water of rainy season has been blocked. They alleged that the water earlier used to flow by the side of such path, which exists on khasra No.715 and passes through khasra No.659 and then goes to main ‘nallah’. The defendants alleged that said ‘nallah’ covers the whole dirty water of ward Nos.6 and 7 and water of the house of plaintiff also flows through the said path towards ‘nallah’. Defendant further alleged that plaintiff did not allow Nagar Panchayat, to lay down the pipes for discharge of the water and deliberately stopped the natural flow of water of house of the defendant with an intention to cause damage to the house of the defendants, as a result of which, they were compelled to file complaint under Section 133 Cr. P.C., in the competent Court of law. On the basis of aforesaid pleadings adduced on record by the parties to the lis, learned trial Court allowed the application filed by the plaintiff under Order 39 Rules 1 and 2 CPC and restrained the defendants from discharging dirty/filthy/rainy water towards the passage leading to the house of the plaintiff.

3. Being aggrieved and dissatisfied with aforesaid order, the defendants preferred an appeal in the Court of learned Additional District Judge, Sarkaghat, District Mandi, but the same was dismissed vide judgment dated 3.9.2021. In the aforesaid background, defendants have approached this Court in the instant proceedings, praying therein to set aside the aforesaid order.

4. Having heard the learned counsel representing the parties and perused material available on record vis-a-vis reasoning assigned in the impugned order/judgment, this Court finds no illegality or infirmity in the same and as such, no interference is called for.

5. Careful perusal of the pleadings and the material available on record clearly reveal that the suit land, as detailed hereinabove, is recorded as ‘Abadi deh ‘upon which houses of the parties exist. It is also not in dispute that houses of the parties to the lis are adjoining to each other. The main grouse of the plaintiff is that he had left the space for ingress and egress of his house beneath his ground floor as indicated in the site plan, but the defendants are throwing their entire dirty and rainy water on the said passage and as such, nuisance is being caused to him as well as his family members. Though, pleadings as well as the documentary evidence adduced on record by the plaintiff, clearly suggests that flow of natural water and dirty water coming from the house of the defendant flows towards the house of the plaintiff but claim of the defendants is that the plaintiff has raised unauthorized construction on the alleged passage. Though qua the aforesaid illegal act if any, of plaintiff, defendants had filed complaint under Section 133 Cr. P.C, but same was dismissed. The documents having taken note by the learned Courts below clearly reveals that passage was left by the plaintiff for his ingress and egress of his house beneath his ground floor as indicated in the site plan. There is no material adduced on record by the defendants suggestive of the fact that passage was constructed and thereafter maintained by the Nagar Panchayat.

6. To the contrary, site plan placed on record clearly suggests that passage was actually left for ingress and egress of the house of the plaintiff, but now dirty and filthy water coming from the house of defendants flows from the same. Photographs adduced on record clearly suggest that on account of discharge of dirty water by the defendants, water is flowing towards the site in dispute, which is admittedly in front of the house of the plaintiff. Though, defendants tried to set up a case that water had been flowing through ‘nallah’ constructed by Nagar Panchayat, but no cogent and convincing evidence qua the aforesaid fact ever came to be led on record by the defendants. Though, defendants set up a case that the plaintiff did not permit the Nagar Panchayat to lay pipe for discharge of filthy water, but no document, if any, qua the sanction, if any, given by the Nagar Panchayat for laying pipe for discharge of filthy water, ever came to be placed on record by the defendants.

7. Leaving everything aside, the defendants have not been able to prove that passage as being referred in the written statement as well as reply to the stay application is a property of Government and same is being unauthorizedly used by the plaintiff. Since, the afore, plea as has been taken by the defendants in the case at hand already stands rejected by SDM, Sarkaghat, in a complaint filed by the plaintiff under Section 133 Cr. P.C, learned Courts below rightly held prima facie case to be in favour of the plaintiff, who successfully proved on record that prior to discharge of dirty water towards his house, the defendants had dug the pit for discharge of filthy water, but yet same is being discharged towards house of the plaintiff. There is another aspect of the matter that defendants by filing petition under Section 133 Cr.P.C., tried to set up a case that nuisance is being caused by the plaintiff on the public property. But, since SDM, Sarkaghat, having taken note of the averments contained in the complaint as well as report called by him from the Police Station concerned, rejected the complaint, learned Court below rightly concluded that site in question is not a public property, if it is so, plaintiff is right in contending that in the event of discharge of flow of water, his house would collapse at any time. The Courts while deciding application for ad-interim stay are required to take three important factors in consideration i.e. prima facie case, balance of convenience and irreparable loss and they all must co-exist that too in favour of the party seeking restraint order. Since in the case at hand, all the afore factors co-exist in favour of the plaintiff, no illegality can be said to be found by the learned Courts below while passing the impugned order.

8. Consequently, in view of the aforesaid discussions made hereinabove, this Court finds no illegality and infirmity in the impugned order passed by the learned Court below, and as such the same is upheld and present petition is dismissed being devoid of any merit.

9. Learned counsel for the parties undertake to cause presence of their respective clients before the court below on 2nd August, 2023, enabling it to proceed with the matter forthwith. Since matter is hanging fire for quite long, this court hopes and trusts that learned Court below shall make all out efforts to conclude the matter expeditiously, preferably within a period of eight months. Needless to say that learned Court below will also take into consideration the inspection report given by the Presiding Judge, dated 30th January, 2018 as well as Local Commissioner report while deciding the main suit.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone.

Order accordingly.

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