TOOLIKA AGARWAL Vs. ROHIT MATHUR

JUDGEMENT

(1.) THIS appeal has been filed against the order dated 05th February, 2009 passed by the Court below in Suit No. 2093 of 2008 (Rohit Mathur and others Vs. Mrs. Toolika Agarwal and others) granting injunction in favour of the plaintiffs-respondents. The suit is for permanent injunction. An application for temporary injunction was also filed which has been granted in favour of the plaintiffs/respondents herein. The appellants preferred this appeal by saying that the order of injunction and the decree in respect the suit are one and the same. However, we find from the submissions of Mr. P.S. Baghel, learned Counsel appearing for the appellants, that the appellants are going to install a lift for their exclusive purpose on a particular place shown in the map particularly for the use of old ailing father of the appellant no. 2 who is residing in the second floor. On the other hand, it has been contended by Mr. Ravi Kiran Jain, learned Senior Counsel duly assisted by Mr. S.K. Tyagi, learned Counsel appearing for the respondents, that there is no second floor in the sanctioned plan to raise any construction far to say about lift, therefore, it has to be opposed particularly when they are inhabitants of the first floor and the ground floor. We have considered the pros and cons and seen the map, which, according to the appellants, is the sanctioned map. Therefore, we allowed to Mr. P.S. Baghel and Mr. S.K. Tyagi, both learned Counsel appearing for the contesting parties, to sit together and try to settle the issue amongst themselves in presence of their respective clients, who are present before the Court. Particularly when they will remain as neighbours, they should live peacefully amongst themselves. Accordingly, the appeal was adjourned yesterday i.e. on 14th May, 2009. Today, Mr. P.S. Baghel and Mr. S.K. Tyagi, both leaned Counsel appearing for the contesting parties, in presence of Mr. Ravi Kiran Jain, who is leading Mr. Tyagi, contended before this Court that they have arrived at a compromise that lift will be installed at an alternative place, as proposed by Mr. Tyagi's client. Mr. Jain is independently agreeable only to the extent of installation of lift but not for the others like Mr. Tyagi, even they appeared for the same parties. So far as illegal construction is concerned, Mr. Jain has made an independent submission by saying that the suit is not only restricted to installation of lift but also about the illegal construction allegedly being made by the appellants herein. He has drawn our attention to paragraph-7 of the plaint to establish that the sanctioned map dated 05th April, 2002 has already expired and the defendant no. 1 (appellant herein) without getting the map renewed can not legally raise construction on the second floor. As against this submission, Mr. Baghel has submitted before this Court that the appellants are not inclined to raise any construction but they are only inclined to complete the interior work of the second floor. Even to that extent initially Mr. Jain was not agreeable particularly in view of the letter dated 08th May, 2008 of the Kanpur Development Authority, being the sanctioning authority. But when on the basis of the supplementary affidavit it has been stated by Mr. Baghel that on 27th January, 2009 the appropriate Development Authority has inspected the premises and compounded the small variations, if any, therefore, there can not be any justification not to pass any order to complete the finishing work, etc. as per the letter of the Development Authority dated 27th January, 2009, he agreed to that extent. So far as use and enjoyment of common space or area is concerned, each and every party will allow the other in respect of use and enjoyment of respective common portions of the ground floor and first floor, stair case as well as parking space in question. There should not be any restraint with regard to utilisation of water by every inhabitants from the existing overhead tank even if it has been now replaced over and above the second floor. We hold so and pass such order in the form of compromise arrived at amongst the parties. Therefore, in view of the aforesaid, this appeal arising out of the order is disposed of on the informal papers as also agreed upon by the parties, however, without imposing any cost. Signatures of the respective parties and their learned Advocates will also be put by the side of each page of this order. In view of such circumstances, nothing remains in the suit, therefore, the suit is also treated to be compromised and accordingly it will be informed to the Court below under the signatures of the respective parties along with the countersignatures of the respective learned Advocates to record it formally.