SHIV POOJAN RAI Vs. KAMLA RAI

JUDGEMENT

(1.) Leave granted to convert the petition into one under Article 227 of the Constitution of India.

(2.) By an order dated 29th July, 1999 passed by the learned Civil Judge (Junior Division), Azamgarh in original Suit No.211 of 1998 an order of injunction was passed in favour of the defendant on the basis of an application under Section 151 of the Code of Civil Procedure to the extent that the plaintiff is directed to remove the earth clogging the drain at the sough of the wall. This order was challenged by the plaintiff in civil Revision No. 158 of 1999 since been allowed, reversing the order dated 29th July, 1999 by an order dated 9th August, 1999 passed by the learned District Judge, Azamgarh. These orders have since been challenged in this petition.

(3.) Mr. Murli Dhar, learned counsel for the petitioner contends that the order that has been passed cannot be treated to be mandatory injunction. It was only maintenance of the exiting drain as was found in the Second Commissioner's report. Therefore, it was not hit by the order of injunction granted by the appellate court on an earlier occasion restraining the defendants from constructing a new drain. He also contends that unless that clogging of the drain is removed, the water through the drain could not be discharged, which used to be discharged so long. He further contends that the earth that had clogged the drain are fresh earth, which requires to be removed.