SUDESH RANI Vs. SUBHASH NARANG

JUDGEMENT

(1.) The petitioner-plaintiff has approached this court impugning the order dated 12.5.2012, passed by the learned Civil Judge (Junior Division), Chandigarh whereby the order regarding status quo passed by the court earlier on 9.5.2012, was vacated.

(2.) The suit was filed by the petitioner restraining the respondentdefendant to dug the basement adjoining to the foundation wall of the house of the petitioner-plaintiff. The petitioner-plaintiff is resident of H. No. 1231, Sector 22-B, Chandigarh, whereas the respondent had dug out and was constructing basement in H. No. 1232, Sector 22-B, Chandigarh. Learned counsel for the petitioner submitted that the petitioner is owner in possession of H. No. 1231, Sector 22-B, Chandigarh. The respondent purchased adjoining H. No. 1232, Sector 22-B, Chandigarh, which was already constructed upto 2-1/2 storey. After dismantling the construction, the respondent started reconstruction from the basement upwards. Earlier there was no basement in the house in question. For the purpose, he is using heavy machinery like JCB. As a result of digging for construction of basement and with the removal of earth, the foundation of the corner wall of the house of the petitioner has been exposed. The digging has been done in excess of the permissible limits under the rules. As the request of the petitioner, who is a widowed lady for not removing the earth, which could result in endangering the safety of the house owned by the petitioner, was not acceded to by the respondent, the suit was filed. Initially, while issuing notice in the suit on 9.5.2012, status quo regarding digging out of the basement was granted. In compliance of Order 39 Rule 3 CPC, the petitioner had placed on record postal receipt. The respondent, in fact, avoided service as he did not receive the summon. The same was received with the report "Mr. Subhash was not present in the office hence the summons have not been received by him." When the matter was listed before the court on 12.5.2012, despite the fact that the petitioner was not at fault, still the learned court below while issuing fresh notice to the respondent for 21.5.2012, vacated the status quo order passed on 9.5.2012. The fact that notice had been served on the respondent is even evident from the fact that instead of appearing in the suit in question, he filed a suit for permanent injunction against the petitioner inter-alia claiming relief restraining the petitioner from interfering into the construction being carried out at the spot in question. It was further submitted that a complaint was also made to the Estate Office regarding the violations being conducted by the respondent, however, no action was taken.

(3.) To appreciate the contentions being raised by learned counsel for the petitioner and also to ascertain the fact as to whether the construction was being raised by the respondent in violation of the sanctioned plan and also the rules and regulations, applicable for digging out the earth for basement and the manner of construction thereof, this court, while passing the following order on 21.5.2012, requested Mr. Sanjay Kaushal, Senior Standing Counsel, U. T., Chandigarh to get the site inspected and report to this court: