NAZIRAHMAD MOHAMMADBHAI DIWAN Vs. SHAIKH MOHMADSIDIQ FATEHMOHAMMAD

JUDGEMENT

(1.) HEARD learned advocate Mr. Nilesh M. Shah for the appellant and learned advocate Mr.Darshan M. Varandani for the respondent.

(2.) APPELLANT is the original plaintiff whereas respondent is original defendant and therefore they are referred in the same capacity. Plaintiff has filed a suit to restrain the defendant from refraining him to utilize the staircase attached to the shop and to remove or destroy such staircase from the place with an ancillary relief to allow the plaintiff to replace such stairs which is old and dilapidated contending that it resulted into inconvenience and disturbance to visitors of plaintiff's shop at first floor. In addition to above relief pertaining to utilization of staircase in question, the plaintiff has also prayed to restrain the defendants from encroaching and trace -passing the portion of staircase even by installing electric meter or such connection and not to disturb the plaintiff from entering into such back or under portion of staircase for repairing and maintenance. Plaintiff is claiming such right pursuant to sale -deed dated 28.02.2011 in his favour by original shop owners. In such sale -deed itself, photographs of staircase is included as a part of the documents which categorically shows that staircase is in existence at the place and that in the sale -deed itself it is categorically stated that, on western side of the premises the staircase is there to reach such premises. In addition to such discloser of right, it is submitted that if staircase is not allowed to be repair then it may resulted into damages to the visitors and property of the plaintiff.

(3.) DEFENDANT has resisted the suit and interim relief. However, during arguments the main and only contention of the defendant is to the effect that allowing such prayer can resulted into allowing the injunction application which is not allowed by the trial Court and that it would also resulted into allowing the entire suit at such interim stage. In support of such submission defendant has relied upon the judgment in case of Ashok Kumar Bajpai v. Ranjana Bajpai, 2004 AIR(All) 107wherein the division bench of the High Court has held that, Court should not grant interim relief, which amounts to final relief. However, when defendant has relied upon such judgment, he should have read the entire judgment. Irrespective of detail reasoning in the judgment, the head -note itself confirms the decisive portion of para 17 that Court may grant such relief in exceptional circumstances when Court is satisfied that ultimately litigant is bound to succeed as well as facts and situation warrants granting such relief. It is further confirm that relief could be granted with only restrictions that the Court must record reasons for passing such order and make it clear as to what are special circumstances for which such relief is granted to a party.