SANTOSH ARORA Vs. MOHAN LAL ARORA

JUDGEMENT

(1.) THE petitioners have impugned an order dated 5th May, 2012 which dismissed their application under section 151 Code of Civil Procedure seeking restoration of the puccawall, as it existed on 11.3.2002, from points P to Q of the rear periphery of the suit premises, as shown in the site plan in the suit documents. Facts:

(2.) THE facts are that suit bearing No.172/11/2002 was filed by the petitioner (plaintiff) seeking permanent and mandatory injunction against the respondent (defendant) apropos property bearing no. 128, Sarojini Nagar Market, New Delhi. In the plaintiffs ' application under Order XXXIX rules 1 and 2 of the CPC the Trial Court ', on 11.03.2002, directed the parties to main status quo qua possession of the room in the rear courtyard and to use the courtyard and the toilet therein jointly, till the disposal of the application. The Local Commissioner who was appointed by the aforesaid order prepared a Rough Sheet on 11.3.2002 around 7.20 pm and submitted it alongwith her report on 13.3.2002. The report mentions a locked shutter which was opened by the plaintiff; an almirah placed on a heap of malba(building waste material) - which both parties claimed to be theirs; of obstructions being created by the defendant No. 1 (present respondent); a room without any electric light - - in which some miscellaneous old items including plastic moulded chairs, two legs of a sewing machine, etc. were found; of obstruction being created by the malbain the opening of the shutter put up by the plaintiffs; of the door at the site marked 'Y ' not having any latch in the passage outside for ingress into the courtyard and the door being inoperable as there appeared to be some obstruction behind it from inside the courtyard; of ultimately accessing the courtyard from the front -side of the shop after removal of the obstructions which had jammed the plaintiffs ' shutter from the back side. Interestingly, neither of these reports mention about any broken courtyard wall. The Local Commissioner finally concluded inter alia: ''And whereas adjoining the store I found a toilet which was the only toilet in this shop. There is a small staircase at a distance of about 2/3 feet from the toilet marked as ''B '' in the site plan. '' ''And whereas the door marked ''Y '' opens only from the inside of the courtyard. The same could not be opened easy the due to obstructions by the malba. '' ''And as well as on inspection it revealed that the plaintiff is in possession, use and control of the open courtyard on the ground floor of the suit premises marked ''C '' in the site plan and the store room appeared to be used by the defendant. ''

(3.) THE application which was dismissed by the impugned order was filed in September 2009. It merely sought the restoration of the rear peripheral wall, which according to the petitioner, had been illegally broken by the defendants. The petitioners contend that a complaint was registered with the police on the date of damage to the wall on 30 April 2002; and that with a view to maintain the security and safety of the suit premises a barrier was created with bamboo sticks affixed to bricks to prevent encroachment and unauthorised access by unscrupulous elements; more specifically the Court 's intervention was sought in order to maintain the status quo as ordered by the Court earlier. The criminal complaint came to be disposed off on 4th September 2002 on the ground that the dispute between the parties was of civil nature and that there was no threat of breach of peace.