Majidbhai Azizbhai Shaikh vs Maherunnisa Ilyasbhai Hokabaj

Honourable Mr. Justice Rajesh H. Shukla

The present Appeal from Order has been filed under Order 43 Rule 1 of the Code of Civil Procedure, 1908 being aggrieved with the impugned order passed below Exhibits 6 and 7 dated 16.7.2012 by the City Civil and Sessions Court on the grounds stated in the memo of Appeal. Heard learned Advocate Shri Mehul S. Shah for the Appellant. He has referred to the paper book along with photographs and also other documents. He has also referred to the impugned order and the permission dated 19th July 2012 of the Municipal Corporation by the Estate Officer to support his submission that he is required to make construction as per the permission and subject to the limitation and conditions imposed. He has therefore submitted that the order passed by the court below is erroneous and the present Appeal from Order may be entertained and it is going beyond the prayer. He has also referred to the averments made in the plaint as well as the cause of action to support of his submission.

Learned Advocate Shri M.T.M. Hakim for the Respondent has submitted that the sale deeds and other papers, including the photographs and the report of Court Commissioner are required to be considered. He submitted that the court below, having considered all these aspects and also the easementary rights of the plaintiff, prima facie has passed the order granting status quo, which is just and proper. He therefore submitted that the balance of convenience is also in favour of the Respondent and the same may not be disturbed, as it requires appreciation of evidence to decide the issue regarding the easementary right at the trial.

In view of this rival submissions, having considered the photographs, papers, report of the court commissioner and the specific observations made in the impugned order in paragraph 5, it cannot be said that the court below has misdirected or has committed any error in passing the order of status quo while considering the easementary right of the plaintiff-both with regard to the ingress and egress as well as the right of air.

The submissions which have been made by learned Advocate Shri Mehul S. Shah that the cause of action particularly referring to the plaint that even in the cause of action it has not been stated with regard to the right of ingress and egress, are misconceived, as paragraph 3 in detail refers to these aspects. Therefore, there is no reason to interfere in the present Appeal from order and the present Appeal from Order deserves to be dismissed and accordingly stands dismissed. Civil Application No. 8433 of 2012 also stands disposed of accordingly. Notice is discharged.