BHAGAWAN CHANDRA LAKHAR Vs. UNION OF INDIA

JUDGEMENT

(1.) - This petition is directed against the judgment and order dated 25.1.93 passed by the learned Asstt. District Judge, No. 1, Kamrup at Guwahati in Misc. Appeal No 61/92. By the said judgment the learend lower Appellate Court set aside the order dated 5.12.92 passed by the learned Sadar Munsif at Guwahati in Misc. (J) Case No. 106/92 arising out of T.S. No. 292/92.

(2.) The suit in question was filed by the present petitioner as plaintiff mainly against the All India Radio and the Executive Engineer, Civil Construction Wing. All India Radio, Guwahati, shortly stated the grievance of the plaintiff is that the All India Radio, Defendant No. 2 has entrusted construction of building to the Executive Engineer, Civil Construction Wing, Defendant No. 3 for construction of staff quarter of the employees of Defendant No. 2 at Guwahati in a plot of land on eastern side of the house of the plaintiff. The building is the R.C.C. building and the first floor has been construted. Plaintiff apprehends that the construction of the building is not up to the mark considering that Guwahati is in the seismic zone and as such in case of earthquake the building of the defendants may fall down endangering humam life of the building now in occupation of the plaintiff and other persons who may visit it. No notice under Sec. 80 C.P.C was served. But the petition was filed under Sub-Section (2) of Sec. 80 Civil Procedure Code. A copy of the petition was served on the defendants and thereafter the learned Munsiff, took up the petition under Order 39, Rules 1 and 2 passed the order on 5.12.92. It may be stated that the said petition was registered as Misc. (J) Case No. 106/92 in a Title Suit. The order runs as follow:

(3.) Against the said order an appeal was filed before the learned lower appellate Court and it was allowed on two grounds namely, that no reasonable opportunity was given under sub-Section (2) of Sec. 80 C.P.C, and that the petition of plaintiff did not make out a prima facie case and irreparable loss. While arriving at this question of prima facia case the learned lower appellate Court noted that between the boundary of the plaintiff and the land of the defendant No. 2, there is a vacant plot of land. It may be stated that plaintiff also enclosed an opinion of Civil Engineer in this respect as stated in the plaint. But it was submitted before the learned lower appellate Court on behalf of the defendant that the Court erred in law in accepting this opinion of a private Civil Engineer.