KATHURIA BROS Vs. AMBA PRASAD SHARMA

JUDGEMENT

(1.) This revision petition is directed against an order in appeal restraining the defendants from putting any stool in the passage having width 3" x 8".

(2.) The defendants/petitioners have a shop No. 5665, Chowk Gandi Market, Sadar Bazar and in front of that shop there is a passage having width of 3' x 8". Across the passage, the plaintiff has been vending his wares on a 'phar'. Earlier the plaintiff wanted to raise the height of his wooden stool which might have obstructed the view of the shop of the defendants. After a suit was filed an agreement was reached between the parties at that stage that neither the plaintiff should keep any opening of his 'phar' towards the passage in front of the shop defendant nor would he raise the height of his 'phar'. The plaintiff/respondent has filed the present suit subsequently for grant of injunction restraining the defendant from putting any wooden stool or ice box or any other articles in the common passage existing between the shop of the defendants and the 'phar' of the plaintiff. Initially in junction was granted after hearing both the parties holding that it was a public passage and the defendant was restrained from putting any article in the common passage shown red in the site plan behind 'Phar' No. 2 of the plaintiff.

(3.) After passing of the aforesaid order the defendant-petitioner, moved an application for modifying the aforesaid stay under Order 39 Rule 4. The learned Sub-Judge on the basis of the site plan filed by the plaintiff-respondent showing one ice box of the size of 1.5' x 1.5', three stools of 2' x 2.5' adjoining their shop and accepting version of the defendant-petitioner took the view that defendants were keeping it for the last 25 years a fact which was not considered by the Court earlier. Thus allowed the defendant/petitioner to place three stools only just adjacent to their shop in common passage adjoining to their shop.