MUNNU KHAN Vs. NAGAR PALIKA PARISHAD, SANWER

JUDGEMENT

(1.) THIS Second Appeal has been filed by the defendant against the judgment dated 10.2.1982 of the Additional Judge to the District Judge, Indore, by which the suit filed by the respondent Municipal Council for permanent injunction and mandatory injunction, has been decreed by the learned Judge after setting aside the judgment passed by the learned Civil Judge, Class II Sanwer in CS No. 24A/79. It is not disputed between the parties that a plot of land measuring 15'x12' near bus -stand at Sanwer, was let out to the' appellant by the respondent/ Municipal Council at monthly rent of Rs. 18/ - under the agreement dated 4.4.1979 (Exh. P/1). Thereafter, on 13.6.1979, an agreement Exh. P/2 was executed by the defendant.

(2.) THE Municipal Council (respondent) filed a suit for perpetual and mandatory injunction on the ground that in violation of the condition on which the lease was granted to the appellant (defendant), the defendant had commenced erection of permanent structure which he had not removed despite notice dated 13.7.1979 having been issued by the Municipal Council. The suit was resisted by the appellant (defendant) on the ground that the condition to the effect that the defendant shall be entitled only to erect temporary structure had been incorporated in the agreement by practising fraud, although the defendant had already erected permanent structure upto the plinth level before execution of the said agreement. It was also averred by the defendant that he had obtained requisite permission from the Municipal Council and further that on the neighbouring plots of land, permanent structures had already been erected by the lessees of the Municipal Council. It was also pointed out that since the construction had already been completed, injunction could not have been granted against the defendant. The trial Court on the basis of the pleadings and the evidence adduced, dismissed the suit of the plaintiff, inter alia, holding that without determining the lease, the plaintiff was not entitled to seek mandatory injunction. The trial Court, however, found that the defendant did violate the condition by making a permanent structure and negatived the plea of fraud raised by him. In appeal, however, the judgment and decree of the trial Court has been reversed and the learned Judge has by injunction directed the defendant to remove the permanent structure and not to make any construction without the permission of the plaintiff. Against the said judgment of the lower appellate Court, this second appeal has been filed which has been admitted on the following substantial question of law :

(3.) COUNSEL for the appellant has submitted that learned lower appellate Court has committed an error in granting permanent injunction and mandatory injunction in the facts and circumstances of the case and in reversing the judgment and decree passed by the trial Court. Learned counsel submits that in any case now the sanction having been granted by the Municipal Council by the order submitted alongwith the application under order 41 Rule 27 CPC the plaintiff was divested from seeking any injunction. From the order passed by the learned lower appellate Court, it is clear that while directing injunction for removal of the structure which had been erected in violation of the conditions on which the said plot of land had been let out, the Court has directed that the defendant shall not make any construction without permission of the Municipal Council. The permission now relied upon by the appellant as per the sanction submitted alongwith the application under Order 41 Rule 27 CPC does not relate to regularisation of the construction already made with regard to which injunction has been issued by the learned lower Court. Since in the impugned judgment itself, it has been clarified that the defendant shall not make any construction without the permission of the Municipal Council, in so far as subsequent construction is concerned, the order passed by the learned ADJ does not come in the way of the defendant if on the strength of the sanction granted by the Municipal Council, he is entitled to build on the plot leased out to him. However, since even as per the case of the appellant, the sanction on which reliance has now been placed is not with regard to regularisation of the structure against which the suit for injunction had been filed, the evidence with regard to subsequent sanction is not necessary for any purpose connected with the disposal of this appeal. The application under Order 41 Rule 27 CPC is, therefore, rejected. 4. Coming to the merits of the case, learned counsel for the appellant has not been able to show as to how for violation of the conditions of the agreement regulating the tenancy of the defendant, it was necessary to determine the lease and obtain possession and that the plaintiff could not have filed a suit for injunction for removal of the structure constituting such violation. Learned counsel for the appellant, has however, submitted that since subsequently permission has been granted for making construction on the plot of land let out to the defendant in so far as existing construction is not inconsistent with the permission subsequently granted, mandatory injunction to that extent needs to be modified. Since it is not clear from the permission on which reliance has been placed as to which portion of the present structure, if any, has been regularized, no modification in the injunction passed against the defendant appears necessary. Learned counsel submits that the appellant may be granted one month's time to remove the present structure. Learned counsel for the respondent/Municipal Council has no objection to the time being granted for compliance of the decree passed by the learned lower appellate Court.