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Judgment
Krishna S. Dixit, J
Petitioner being the plaintiff in an injunctive suit in O.S. No. 5249/2018, is knocking at the doors of writ court for assailing the order dated 09.04.2019, a copy whereof is at Annexure - A, whereby the learned XI Addl. City Civil Judge, Bangalore City, having rejected his application I.A.
No. 2 filed u/s 151 of CPC, 1908, for denied interim protection.
After service of notice, the respondent having entered appearance through his counsel, stoutly resists the Writ Petition by making submission in justification of the impugned order; he also brings to the notice of this court that the petitioner is unnecessarily complaining to the police against him leading to further complication.
Having heard the learned counsel for the parties and having perused the Petition Papers, this court is of a considered opinion that some arrangement during the pendency of the suit needs to be made for the following reasons:
(a) petitioner and the respondent happen to be owners of the adjoining properties; between these two properties, admittedly there exist a compound wall which is sought to be removed by the respondent on the assertion that it belongs to him, the petitioner contending to the contrary; the ownership of the wall needs to be gone into by the court below, there being an arguable case for the petitioner;
(b) rightly or wrongly the wall has been in place since decades, is forthcoming from the material on record including the photographs; a small portion of the wall is demolished and the larger portion still remains intact; if the demolished portion is restored by and at the cost of the petitioner, no prejudice would be caused to other side since no equities shall be claimed by the petitioner in the on going suit; and
(c) as already mentioned above, the petitioner shall not seek any equities or cost or the like in the event he looses the suit; however, in the guise of restoring the damaged portion of the subject compound wall, petitioner shall not otherwise interfere with the property of the respondent nor shall he precipitate the police case filed against the respondent, till after the suit is decided finally and subject to result of said suit.
In the above circumstances, this writ petition is partly allowed; petitioner is permitted is restore the compound wall as it was before, at his own cost subject to the observation herein above made.
All contentions of the parties are kept open.
No costs.