URMILABEN ISHWARBHAI MODH Vs. KAUSHALIYABEN CHAMANBHAI BHAVSAR

JUDGEMENT

(1.) RULE . Mr J.A. Adeshra, learned Advocate for the respondent waives service of Rule.

(2.) THE facts of the case in brief are that the original defendant owns his residence behind the "Khanchali" of the plaintiff. The defendant started construction of the first floor without obtaining permission from the Municipality. The defendant constructed the said construction on the wall owned by the plaintiff violating easementory rights of the plaintiff. So the plaintiff filed suit on 9.4.2012 to remove the construction made and also requested to grant permanent injunction. The trial court passed interim injunction order vide order dated 30.4.2012 on Exh.5 permitting the present petitioner to make construction on his side leaving the disputed wall. The respondent filed Exh. 36 dated 14.6.2012 complaining breach of the interim order. Learned Principal Senior Civil Judge passed order dated 15.10.2012 for contempt of the court. The petitioner preferred Misc. Civil Appeal No. 21/2012 before the learned 4th Addl. District Court, Surendranagar who passed the judgment and order dated 20.2.2013 confirming the judgment and order dated 15.10.2012 of the trial court. Hence this petition is filed.

(3.) I have heard the learned Advocates for the parties. Learned Advocate Mr A.G. Vyas appearing for Mr D.J. Chauhan, learned Advocate for the petitioner submitted that the petitioner has made the construction on his side without causing any disturbance to others and for that no damage has been caused and the said construction is not going to cause any prejudice to the respondents herein. He has submitted that the old wall was 59" in height and later on, prior to the receiving the order dated 30.4.2012 by the court in the concerned suit the petitioner has already raised the wall upto 77" and thereafter, after receiving the process of the court and the injunction order, no breach has been committed by the petitioner. He has further submitted that in fact the petitioner -defendant herein has also constructed bathroom and toilet on his side but while passing the order, both the courts have not properly appreciated the material facts that the construction of bath room and toiler near the wall on the petitioner's side would not constitute any breach of contempt. He, then submitted that in fact the construction in question made is the joint wall/common wall between the parties and it would not constitute contempt of the court and as such the petitioner -defendant has made construction on his side by leaving space of 4 inches. The learned Advocate has submitted that so far as the process related to Regular Civil Suit No. 17 of 2012 is concerned, the same has already been served to the other side. Drawing attention to the deposition at Exh. 48, more particularly, to the cross -examination at paragraph No.4, learned Advocate for the petitioner has submitted that the defendant's property is situated on the western side of the plaintiff's property and the space of 4 inch have been left by the defendant on the eastern side, during the course of their construction and also admitted that on the disputed wall, no construction has been carried out. If any construction be carried out on the wall, then it was not an intentional one, but a bona fide lapse on the part of the petitioner -defendant herein. It is further submitted that the petitioner -defendant has not made any breach of the injunction order. In spite of that, both the courts below have erred in coming to the conclusion that the petitioner -defendant herein has constructed on the wall in violation of the injunction order. So far as the order dated 15.10.2012 is concerned, the petitioner -defendant has complied the part of the order and deposited the amount of Rs. 5,000/ - before the Tribunal. Moreover, during the course of hearing of the appeal, as per the order passed by the appellate court, an amount of Rs. 10,000/ - has also been deposited by way of costs. The learned Advocate has further submitted that the dispute related to joint compound wall is yet to be decided and prior to that the respondent -plaintiff herein has asked for demolition of the said wall cannot be permitted in the eye of law. In support of his submissions, learned Advocate for the petitioner, placing reliance on a reported decision in Vaidya Trambaklal Purshottam v. Madhavji Premji, 1973 0 GLR 194, submitted that if at all the court comes to the conclusion that any breach has been committed by the petitioner -defendant herein, then consider the same as a technical breach and considering the fact the the petitioner being a lady, a sympathetic view is requested to be taken. He, therefore, prays that the impugned order dated 20.2.2013 passed by the court of 4th Additional District Court, Surendranagar in Misc. Civil Appeal No. 21/2013 confirming the order below Exh. 36 dated 15.10.2012 passed in Regular Civil Suit No. 17/2012 passed by the learned Principal Senior Civil Judge, Surendranagar allowing the said application Exh. 36 be quashed and set aside being unjust, arbitrary and illegal.