KAILASHWATI SHARMA Vs. ADDL DISTRICT JUDGE HAPUR

JUDGEMENT

(1.) The petitioner as plaintiff had filed a suit being O. S. No. 378 of 1998 before the learned Civil Judge, Junior Division, Hapur, Ghaziabad against the Opposite Party No. 3 and one Nagesh Tyagi as defendant Nos. 1 and 2 respectively for injunction restraining the defendants from demolishing the disputed wall as shown in the plan for the purpose of using the property as ingress and egress for the defendants' property. In connection with the said suit, an application for injunction was filed. The learned Civil Judge had passed an order of status quo initially by an order dated 24th April, 1999. Aggrieved the defendant No. 1 filed an appeal against the said order dated 24th April, 1999 being the Misc. Civil Appeal No. 36 of 1999. By an order dated 25th August. 1999 passed by the learned Additional District Judge, Hapur, the appeal was allowed. It is this order which has since been challenged.

(2.) Mr. Anil Kumar Bajpai, learned counsel for the petitioner contends that the order of the Appeal Court suffers from perversity and as such, is liable to be set aside. According to him, the property belongs to one Ashok Housing Society and that the wall also belonged to the said society. The said land was appurtenant to the property of the plaintiff which he used for his ingress and egress and if the defendant is permitted to use the same in that event, the privacy of the plaintiff would be interfered with and that the defendant has no right to use the said property. He also claims easement right over the said properly.

(3.) Mr. S. S. Tyagi, learned counsel for the opposite party, caveater on the other hand contends that by reason of U. P. amendment of Rule 2 of Order XXXIX. no injunction could be granted tn the suit as framed. He also contends that the suit is not maintainable in view of Section 38 read with Section 41 of the Specific Relief Act and as such, prima facie the plaintiff has not been able to make out a case. He also contends that the necessary parties have not been impleaded in the suit and that no relief can be had against the defendants without Impleading the Ashok Housing Society whom the plaintiff himself had admitted to be the owner of the land used as road and the alleged wall. He further contends that on a consideration of payment of Rs. 25.000 to the said Housing Society, the Housing Society had undertaken the development of the said road permitting the defendant to use the road for his ingress and egress from his property. In such circumslances. no relief could be had against the defendant since it was the Housing Society who is the owner of the property and had permitted the defendant to use the same in view of the consideration as is apparent from the material placed before the learned appeal court which is not a disputed proposition.