P&H HC | Litigants to exercise due diligence in pursuing remedy when judgment and decree already assailed before lower appellate court

Punjab and Haryana High Court: Amit Rawal J., dismissed the second appeal petition on the ground that there was no substantial question for determination.

The regular second appeal was preferred at the instance of the appellant/defendant against the decretal suit against the injunction order to her to not to interfere in the subject land.

The respondent-plaintiff alleged that plaintiff and defendant had joint land which was purchased by the plaintiff for Rs 1 lakh for the purpose of passage. The defendants were extending threats for construction on the land including 1 biswa and perpetually requested but resulted into celandra under Section 107(151) of Code of Criminal Procedure, 1973.

Sanjiv Gupta, counsel for the appellant/defendant submitted that suit for the injunction prima facie as per the record of local commissioner reflecting the possession of 1 biswa more than her ownership, was not maintainable. In the absence of relief of mandatory injunction, decree qua relief of possession could not be moulded under the provisions of Order 7 Rule 7 of Code of Civil Procedure, 1908.

The defendant opposed the suit and denied the averments and stated that she was the owner of the land measuring six biswa as per the registered sale deed.

Court opined that “litigants are required to exercise the due diligence in the pursuing the remedy particularly when the appellant had assailed the judgment and decree of the trial Court before the Lower Appellate Court. There is no equity on the person who has been found to be in alleged encroachment” Thus, the petition was dismissed.[Sabri v. Gulzar Ahmed, 2019 SCC OnLine P&H 708, decided on 24-05-2019]

Join the discussion

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.