M ZEENATH BEGAM Vs. P PATTAYE

JUDGEMENT

(1.) The suit in O.S.No.449 of 2017 has been laid by the plaintiffs for permanent injunction restraining the first defendant to stop the ongoing building construction work in the suit B-Schedule property until getting due building plan approval and building permission as mandated under law from the defendants 2 and 3 and after getting such permission not to violate the building plan permission in anyway particularly without leaving the open space on all four sides of the construction and for mandatory injunction directing the defendants 2 and 3 not to allow the first defendant to construct the new building construction in the suit B-Schedule property without getting building permission and particularly without leaving any prescribed open space on all the four sides of the building even after getting due building permission and also for mandatory injunction directing the first defendant to remove the drainage pipe line installed further on the southern boundary limit of her suit B-Schedule property encroaching into the plaintiffs' suit A-Schedule property forthwith and on failure to do so cause removal of it through Court Amin at the cost of the first defendant.

(2.) Pending suit, it is seen that the plaintiffs have preferred an application I.A.No.404 of 2017 seeking an order of ad interim injunction as regards the relief-B sought for in the main suit. It is, therefore, found that the plaintiffs endeavour is to seek the main relief itself sought for in the suit by way of the application preferred in I.A.No.404 of 2017. I.A.No.403 of 2017 has been preferred by the plaintiffs seeking for an order appointing an Advocate Commissioner and directing him to note down all the features and existing stage of the ongoing construction work in the suit B-Schedule property of the revision petitioner / first defendant and also to take necessary measurements and to file a report and plan. It is found that the Commissioner's application was resisted by the revision petitioner / first defendant. However, it is seen that the Court below was pleased to appoint an Advocate Commissioner with a direction to him to inspect the suit properties with the help of the qualified surveyor and file a report in the Court. The above said order is seen to have been passed on 12.06.2017. In this situation, it is to be noted that for the relief of the appointment of the Advocate Commissioner, the plaintiffs after alleging certain violations said to have been committed by the revision petitioner in putting up the construction in the suit B-Schedule property without obtaining due plan and building permission from the defendants 2 and 3, have also pleaded that the revision petitioner / first plaintiff has put up the concrete pillars to raise her building exactly on the southern limit of her suit B-Schedule property, which is not legally permissible as no vacant open air space is left and it will cause injury in the enjoyment of the adjoining property owners and in order to make known the existing initial stage of the construction and such violation of the building rules prescribed that are made in the suit site, the inspection by an Advocate Commissioner to note down all the features and taking necessary measurements of the B-Schedule property are essential to decide the case and hence, prayed for the appointment of an Advocate Commissioner. Therefore, it is found that even according to the plaintiffs, only on the inspection of the property concerned by the Advocate Commissioner it could be ascertained as such as to whether the revision petitioner / first defendant has put up construction in her property in violation of the building rules so as to cause detriment and injury to the enjoyment of the adjoining property owners, particularly, the plaintiffs. As adverted above, the relief sought for by the plaintiffs in I.A.No.404 of 2017 is akin to the relief - B sought for in the plaint. In such view of the matter, it is impliedly admitted by the plaintiffs that the Commissioner's report and plan sought for by them in I.A.No.403 of 2017 are essential to decide the relief sought for in I.A.No.404 of 2017.

(3.) In such view of the matter, it is found that after the appointment of the Advocate Commissioner, inasmuch as the Court had endeavoured, according to the revision petitioner, to proceed with I.A.No.404 of 2017, it is the case of the revision petitioner that she has been necessitated to lay an application in I.A.No.437 of 2017 for a limited relief i.e., to stay the further proceedings of the application in I.A.No.404 of 2017 till the filing of the report by the Advocate Commissioner. The revision petitioner has pleaded in the said application that inter alia the Court has no jurisdiction at all to stop the ongoing construction work in her property and also the Court has no jurisdiction to direct the defendants 2 and 3 to stop her construction work inasmuch as her application for permission is pending before them and they are the competent authorities to decide the issues / disputes involved in the matter and the same cannot be prevented by the plaintiffs in the guise of filing an application in I.A.No.404 of 2017 and also pleaded that inasmuch as the Court has ordered the appointment of the Advocate Commissioner and as the Court had felt that the report of the Commissioner is essential to decide the issues involved in the matter as put forth by the plaintiffs, according to her, only on the filing of the report by the Advocate Commissioner the Court should take up the further enquiry in I.A.No.404 of 2017 and hence, prayed for limited stay in the application i.e., in I.A.No.437 of 2017.