KAMBHAMPATI SAVAMMA Vs. G RADHAKRISHNA MOOORTHY

JUDGEMENT

(1.) The petitioner is the defendant in the Lower Court. The revision arises against the order in I.A. No. 1735/82, filed under Section 151 C.P.C. to direct the respondent to demolish the wall and eves constructed by him in the first floor of the suit building.

(2.) The admitted facts are that the respondent was residing in the house bearing No. 11-31-27, Park Road, Vijayawada as a tenant. The petitioner filed suit O.S. 1546/80, in the lower court for perpetual injunction restraining the landlord of the respondent from interfering with the possession and making any further constructions. In I.A. No 6002/80 the trial Court issued temporary injunction on December 6, 1980 restraining the landlord of the respondent from making any constructions. The respondent claiming to be the tenant in the plaint schedule property under an oral lease he was authorised to construct A B wall and eves at C D and when he made arrangements by stocking the material for construction thereof the petitioner was interfering with the construction, filed the suit, O.S. 1521/80 for permanent injunction to restrain the petitioner and her men from interfering with his possession of the portion marked A B C D and F E in the plaint plan and not to obstruct the construction of the wall at point A B and eves at C D by the respondent. He also filed two applications, one for temporary injunction and another, being I.A. 5914/80 for appointment of a commissioner to supervise the construction of the wall at point A B and the eves at C D and to file his report and plan. These applications have been ordered exparte on December 8, 1980. In pursuance thereof, A B wall was constructed with the eves at C D under the supervision of the Commissioner and he submitted his plan and report. The suit was posted from time to time. Ultimately it was dismissed on December 1, 1981, as not pressed reporting that the respondent-plaintiff vacated the premises. Four and half months thereafter i.e., on April 15, 1982, the petitioner filed the present application and also another application, being I.A. 1734/82 for exemplary costs. The lower court dismissed the application on the sole ground of delay to approach the court. Petitioner also averred in his affidavit, that a photostat copy of the injunction order in I.A. 6002/82 was brought to the notice of the Commissioner yet without stopping further construction he facilitated the respondent to proceed with the construction. Accordingly the construction was completed.

(3.) In this revision it is contended that the lower court having facilitated the respondent for construction of the wall at a A B and eves C D, ought to have made an order to restitute the position which the parties occupied prior to the institution of the suit. The failure to exercise this power constitutes error of jurisdiction. It is also the case of the petitioner that the acts of the respondent constitute gross abuse of the process of the Court and that abuse cannot be allowed to be perpetrated.