Arun Kumar vs Sunder Lal Gupta

G.S. Singhvi, J.—Aggrieved by the orders dated 6.4.1994 and 28.11.1994 passed by Sub Judge 1st Class, Ferozepur and Additional District Judge, Ferozepur respectively rejecting his prayer for grant of temporary injunction, the petitioner has filed this revision petition and has prayed that the impugned orders be set aside and his application for grant of temporary injunction be accepted.

When the case was heard initially on Feburary 9, 1995 the court observed that there was no merit in the claim made by the petitioner for grant of injunction in respect of the common staircase. Therefore, the revision petition was dismissed with regard to the prayer made by the petitioner for restraining the defendant from blocking the stair case marked as ABCD. Notice was however issued to the respondent on the second prayer by the petitioner that the defendant be restrained from erecting the wall in the common courtyard so as to deprive the plaintiff from the user of the common court-yard.

I have heard the learned counsel for the parties and perused the impugned orders as well as the record of the Courts below.

The only argument advanced by Shri Chhabra, the learned Counsel for the petitioners that the Court below altogether overlooked the claim made by the petitioners for the grant of temporary injunction restraining the defendant from erecting a wall in the common compound and, therefore, to that extent, the orders of the Courts below are perverse.

Learned counsel for the respondent argued that both the Courts have properly appreciated the rival contentions and have concurrently refused injunction to the petitioner and, therefore , this Court should not exercise its revisional jurisdiction in favour of the petitioner.

Ordinarily, this Court does not exercise its revisional power to interfere with the orders passed by the Courts below on an application filed u/s 39 Rules 1 and 2 read with Section 151, Civil Procedure Code, but after having carefully looked into the record of the case, I am fully convinced that present one is fit a case for interference by this Court in so far as the prayer of the petitioner for the grant of injunction against the construction of wall in the common courtyard is concerned.

A look at the impugned orders passed by Sub Judge as-well as by the Additional District Judge, Ferozepur shows that both the Courts have restricted the examination of the prayer of the petitioner to the staircase and have found no substance in the plea raised by the petitioner that respondent should be restrained from using the stair-case. There is total absence of consideration of the claim made by the petitioner that the defendant should be restrained from raising construction in the common court-yard. The site plan produced by the petitioner before the trial Court (page 33 of the record of the trial Court) shows that there is a common court-yard between the houses of the petitioner and the respondent. There is no indication of any existing construction in the common court-yard, but despite the fact that the petitioner had made a specific prayer for the grant of injunction to the effect that the defendant - respondent should be restrained from raising construction in the common court-yard, the Courts below have not decided it. In the Sale Deed through which the petitioner purchased the property in dispute, there is clear indication that there is a common court-yard between the properties of the petitioner and the respondent. The issue whether the petitioner is entitled to an order of permanent injunction or not will be decided by the competent Court after detailed examination of pleadings and evidence, but keeping in view the situation of the property and particularly the site plan, there is sufficient justification to pass an order that the parties should maintain status quo regarding common court-yard and should not raise any construction in it. The failure of the Courts to consider this aspect has resulted in substantial failure of justice requiring interference of this Court,

Consequently, the revision petition is partly allowed. Orders passed by the Court below regarding the user of stair-case are maintained, but the defendant-respondent as well as the plaintiff are directed to maintain status quo regarding common court-yard and are restrained from raising any construction over the common court-yard during the pendency of the suit.

Records of the Courts below be sent back immediately.