BANARASIDAS Vs. RAMKRISHNA

JUDGEMENT

(1.) A suit bearing CO.S. No. 7A of 1994 is pending in the Court of VIIth Civil Judge Class II, Gwalior. In this suit an application under O.39, R.1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) was filed. This was to the effect that the plaintiff may not be dispossessed from a piece of land admeasuring 2 ft. x 23 ft. This piece of land is located at a place known as Jiyajee Chowk in Gwalior. It was alleged that the Municipal Corporation Gwalior is threatening to demolish the structure which is admittedly raised on a drain by the side of a public street. There is some dispute regarding the nature of the structure so raised. According to Shri Roman, learned counsel for the petitioner, this structure was of permanent nature. This position is disputed by the counsel for the Municipal Corporation and also by the respondent-defendant Nos. 1 to 5.

(2.) In the application under O.39, R.1 of the Code interim injunction to the effect that the plaintiff shall not be dispossessed or the structure raised by him shall not be removed was granted by the trial Court. This injunction order was however vacated on 18/04/1994. An appeal was preferred against this order and the IVth Additional Judge to the Court of District Judge, Gwalior, who vide his order dated 18-4-1994 dismissed the appeal in limine without calling for the records. The present revision petition has now been filed in this Court challenging the orders of the courts below.

(3.) It may be seen that the position as it obtains today is that the structure raised by the plaintiff/ petitioner no longer exists. This was demolished on 19/04/1994, that is, immediately after the trial Court vacated the injunction order. The petitioner/ plaintiff accordingly submits that he is entitled to restoration and for this he invokes the principles applicable to matters arising under S.144 of the Code.