Lalta Prasad vs Smt. Parvati Devi and Others

Hon''ble Prakash Krishna, J.—Challenging the order dated 3rd December, 2011 passed in Misc. Appeal No. 71 of 2011, the present writ petition is at the instance of the plaintiff of Original Suit No. 43 of 2011. The present writ petition arises out of the proceedings for grant of temporary injunction during pendency of the suit.

The background facts of the case may be noticed in brief.

The petitioner claiming himself as tenant of a shop, filed the suit for permanent injunction restraining his landlord-respondent no. 1 from evicting him otherwise in due course of law. He also filed an application for grant of temporary injunction. The said application was allowed by the trial court by the order dated 17th March, 2011. The said order in appeal has been modified by the impugned order by providing that the petitioner shall not be evicted from the property in dispute otherwise in due course of law. The other part of the order of the trial court directing the parties to maintain status quo has been set aside. The petitioner is aggrieved by this part of the appellate order.

The petitioner-tenant claims himself that he is tenant of the shop, situate in the building in question, for the last about 50 years. The proceedings were initiated by the Nagar Nigam, Varanasi against the owner and the landlord for demolition of the building in question on the ground that it is in dilapidated condition and it amounts public nuisance. The order dated 18th June, 2010 of demolition was passed by the Municipal Commissioner.

The said order was challenged by the petitioner in an earlier Writ Petition No. 37271 of 2010 before this Court on the ground that the order impugned therein dated 18th June, 2010 regarding demolition was passed without giving opportunity of hearing to him. The writ petition was allowed by the judgment dated 11th October, 2010 by providing that respondent no. 2 therein shall pass a fresh order in accordance with law after giving opportunity of hearing to the petitioner as well as respondent no. 3 and other persons and after getting the premises inspected afresh, as expeditiously as possible.

In pursuance of the judgment of this Court, the matter was heard by the Municipal Commissioner again and fresh inspection report was called for. Inspection was carried out in presence of the parties and it was found that the building in question is in dilapidated condition. It requires demolition. Consequently, Municipal Commissioner on 15th April, 2011 passed a fresh order ordering demolition of the building in question.

Appellate Court took a note of the above fact and held that the trial court was not justified in directing the parties to maintain status quo in the face of the order of Municipal Commissioner.

Heard the learned counsel for the petitioner and Shri Imron Syed, Advocate who has filed vakalatnama on behalf of respondents no. 1 to 5. None is present on behalf of respondent no. 6.

Learned counsel for the petitioner submits that the court below was not justified in allowing the appeal in part. He submits that fresh commission be issued by this Court to find out the real state of affairs and/or the suit itself be ordered to be decided expeditiously and in the meantime, the parties be directed to maintain status quo.

Learned counsel for the contesting respondents, on the other hand, supports the impugned order.

Considered the respective submissions of the learned counsel for the parties and perused the record.

It was not disputed before me that the order dated 15th April, 2011 directing the landlord and owner of building in question to demolish it, has attained finality. The said order has not been challenged by any of the parties. The said order has been passed in pursuance of the judgment of this Court after hearing the parties. Validity of the said order cannot be questioned in these proceedings.

In view of the fact that the order dated 15th April, 2011 has attained finality, I do not find any illegality in the impugned order. There is no merit in the present writ petition.

The writ petition is dismissed summarily.