RAM KALAP Vs. IV ADDL DIST JUDGE GORAKHPUR

JUDGEMENT

(1.) While the matter relating to the continuance of the ad interim order dt. 27 Nov., 1987 is under consideration, the petitioner, plaintiff before the Munsif, Bansgaon, in Suit No. 188 of 1987 Ram Kalap Verses Surender, has moved an application that he does not press his petition while accepting that the respondent 2, the defendant, may continue in possession over the property in dispute but be restrained from making any fresh constructions.

(2.) It is contended on behalf of this respondent that while the petitioner will be free not to press the petition there should not be any order from the Court that he may be restrained from making any constructions. It is correct that should the petition be not pressed it will remain pending awaiting decision on issues raised between the parties. Let the issues be examined. These are; that while the suit had been instituted and an interim injunction was sought from the trial Court to the effect that the defendant respondent be restrained from raising any further construction during the pendency of the suit, amongst other reliefs sought, the trial Court granted an ad interim injunction, to the petitioner. The appellate Court upset this injunction; hence the writ petition. Thus, the only question in the writ petition is whether the ad interim injunction granted by the trial Court ought to remain or the order of the, appellate Court by which the injunction has been set aside. The other aspect is that even if the petitioner was not to press the petition what would be the law or equity applicable between the parties.

(3.) Should the second question be answered in favour of the petitioner, then the answer to the first question would not arise. The answer to the second question is now available from a judgment of the Supreme Court laying down the principle on what ought to be the appropriate order when one party restrains the other from raising constructions over the property in suit. The Supreme Court in the matter of Harish Chander Verma v. Kayastha Pathshala Trust, reported in Judgments Today (1988) 1 JT 625 (2), held that where a decree for permanent injunction has been sought it would not be appropriate to permit the defendant to raise constructions subject to the condition that in the event of the decree being affirmed, the construction shall be pulled down. The Supreme Court observed, apart from the convenience of the parties and equity arising in the facts of the case, a larger principle is involved in the matter. On the face of a decree for permanent injunction is it appropriate for the appellate Court to allow it to be nullified before the appeal is disposed of ? We are of the view that the answer has to be in the negative. "