PARSHOTTAM DASSJI MOHATA Vs. K B MAHATA

JUDGEMENT

(1.) The present petition, moved under Article 227 of the Constitution of India, is arising out of the order passed below Exh.5 in H.R.P. Civil Suit No.785 of 1999. The petitioner-tenant ( hereinafter referred to as 'the plaintiff') is the orig.plaintiff of the aforesaid Suit.

(2.) It is necessary to state some facts in brief. The plaintiff instituted the Suit for declaration and injunction against the respondent-orig.defendant-landlord (hereinafter referred to as 'the defendant'), who is a successor in title of the property being a new purchaser, in the Small Causes Court at Ahmedabad, seeking injunction from blocking the passage for climbing south-west side staircase leading to the rented premises occupied by the plaintiff. Undisputedly, the plaintiff is using the premises rented to him for business/commercial purpose. By drawing supplementary proceedings under Order 39 Rule I and II of the Civil Procedure Code, 1908 (for short 'the Code'), the plaintiff prayed for interim injunction against obstruction, etc. in terms of the main relief of injunction. It is the say of the plaintiff that he is using the suit-passage as a staircase since years prior to when the defendant was not the landlord. The lower Court after hearing the learned counsel appearing for the plaintiff granted interim injunction, except for the bracketed portion of the prayer clause. A xerox copy of the application Exh.5 is fortunately available on record and it would be convenient to reproduce the relevant paragraph :9(A) of the application, which reads as under:

(3.) The ex-parte interim injunction in terms of para:9(A), except for the bracketed portion, of the said application, was granted till 5th July, 1999. After hearing the parties, the Court ultimately by final judgment rejected the application Exh.5 and vacated the ad interim injunction, restraining the obstruction or blocking passage for climbing south-west side staircase leading to the rented premises of the plaintiff, observing that the plaintiff can reach to his premises by another staircase made on south-east side in the very property. It is further observed by the learned Judge that as per the report prepared by the Court Commissioner, there were two staircases for going up and the plaintiff was able to use any of these two staircases I am told that the second staircase for which the Suit is filed was a wooden staircase and through that staircase also the plaintiff was able to reach to the rented premises. The plaintiff thereafter approached the Appellate Court by filing Appeal From Order and obtained interim relief. But it is clear from the record as to whether pending hearing and disposal of the Appeal From Order No.39 of 2000, any ex-parte or by-parte order in the nature of prohibition or direction was passed by the Appellate Court or not. From the compilation given by the plaintiff with the memo of the petition, it emerges that after dismissal of the application Exh.5 on 31.3.2000, the Appeal From Order was prepared on 24th April, 2000 and ultimately, it came to be decided by the Appellate Bench on 28th April, 2000. So in a couple of days, the Appellate Bench has decided the Appeal From Order and dismissed the same. The Appellate Bench was also pleased to dismiss both the applications and confirmed the order passed below applications at Exhs.5 and 26.