ASHARAM KISAN SHELAR Vs. HARAKCHAND

JUDGEMENT

(1.) This is a revision filed by the original defendants 1 to 6 against the order of the Assistant Judge, Aurangabad, allowing Misc. Civil Appeal No. 1 of 1983 on his file and passed the following order : "The appeal is allowed and the respondents-defendants are hereby restrained and prohibited from obstructing the appellant-plaintiff in replacing the wall and also in the enjoyment of the premises in question pending the suit. The order made by the lower Court stands reversed." This order is challenged by the original defendants in this Revision Application.

(2.) The respondent No. 1 is the original plaintiff and the respondent No. 2 is the original defendant No. 7 the Town Municipal Committee at Vaijapur. The petitioners are the original defendants 1 to 6. The present respondent No. 1 the tenant filed a suit against the landlords and the Municipal Committee. He contended that a wall around a house was pulled down by the landlords and therefore the tenant filed a suit for mandatory injunction directing the landlords to construct the wall and place it in its former position immediately and in this very suit he applied for temporary injunction. The landlords appeared in the suit and resisted the plaintiffs application for temporary mandatory injunction. Upon consideration of the material before him the trial Court dismissed the application for the temporary injunction. Feeling aggrieved the plaintiff went in appeal to the District Court and it was Misc. Civil Appeal No. 1 of 1983. This was an appeal by the tenant against the landlords and the learned Assistant Judge passed the impugned order which I have already reproduced.

(3.) For several reasons the order of the lower Appellate Court cannot be sustained. It is now stated before me by both sides that after the order passed by the lower Appellate Court the entire house has come down and it is no use merely giving the relief to the plaintiff as is given by the lower Appellate Court. When the whole house has come down it will be of no use to construct only one wall of the said house and therefore by virtue of an incident which has taken place subsequent to the order passed by the lower Appellate Court the relief granted by the lower Appellate Court has become futile and does not survive at all. Moreover, the reliefs that were prayed by the tenant-plaintiff were as follows : "B. The A. T. I. order in mandatory form may be issued against the defendants ordering them to reconstruct and build the said East-West wall immediately within 24 hours and put it in same position as it was before 10-12-82. C. The defendants may be ordered to put tins on the roof of the said shop." Whereas the relief which is granted by the lower Appellate Court is as already reproduced by me. This relief granted by the lower Appellate Court is beyond the scope of the prayer of the plaintiff made in the application for temporary injunction in the Trial Court. Hence in view of these findings the order of the lower Appellate Court deserves to be quashed.