SURJU RAM Vs. SHITLA PARSHAD AND ORS.

JUDGEMENT

(1.) THE petitioner -defendant No. 1 has invoked the jurisdiction of this Court under Article 227 of the Constitution of India seeking to set aside the order dated 1.6.2010 (Annexure P -3) and subsequent order dated 4.1.2013 (Annexure P -6). Plaintiff -respondent No. 1 filed Civil Suit No. 531 of 2009 against the petitioner and respondent No. 2 -Chandigarh Housing Board, Chandigarh for permanent injunction restraining petitioner -defendant No. 1 from constructing toilet and bathroom in front courtyard of House No. 2395/A, New Indira Colony, Mani Majra, UT Chandigarh, belonging to plaintiff -respondent No. 1. This house was allotted to plaintiff -respondent No. 1 on 17.6.1993. There is a courtyard in front and backside of the house of plaintiff -respondent No. 1 and is meant for common purpose of the allottees. House of petitioner -defendant No. 1 adjoins the house of plaintiff -respondent No. 1. The petitioner -defendant No. 1 intended to construct toilet and bathroom by covering 4' land from the front courtyard of plaintiff -respondent No. 1's house with intention to separate two room set, without permission of respondent No. 2 -Chandigarh Housing Board. The version of petitioner -defendant No. 1 in the written statement was that this complex has 5 dwelling units and are in "H" type constructions. The middle of the portion is the house of plaintiff -respondent No. 1 and there are two small courtyards in between these five houses falling on both the sides of the house of the plaintiff -respondent No. 1. In fact, plaintiff -respondent No. 1 wanted to grab both the common courtyards after having lost his case in appeal before the lower Appellate Court for which RSA -2335 -2000 (Shitla Parshad v. Sarju Ram and others,) is pending in this Court. After condoning delay of 206 days, this Court passed an order on 19.9.2000 directing the parties to maintain status quo regarding construction and nature of property. Despite that plaintiff -respondent No. 1 succeeded in covering part of a courtyard by constructing staircase on the wall of petitioner -defendant No. 1. Plaintiff -respondent No. 1 also stated to have covered the common manhole under the staircase and constructed a toilet on the manhole and also affixed a water tap. By making various other averments, the suit was contested. Along with the written statement, the petitioner -defendant No. 1 also filed a counter -claim making a prayer to direct plaintiff -respondent No. 1 to open the door of his house as per layout/site plan towards house No. 2261 and 2262 and close his illegally opened door of his house towards unit Nos. 2395 and 2399. These are the houses in "H" type of construction of five houses, out of which the petitioner -defendant No. 1 is owner of one of the dwelling unit No. 2399.

(2.) CHANDIGARH Housing Board -defendant -respondent No. 2 moved an application under Order VII Rule 11 C.P.C. for rejection of the plaint on the ground that mandatory notice under Section 67 of the Haryana Housing Board Act, 1971 (for short 'the Act') as applicable to Chandigarh was not served. After hearing learned counsel for the parties, the learned trial Court vide impugned order dated 1.6.2010 (Annexure P -3) held that suit was not maintainable against defendant -respondent No. 2 due to non -service of notice and, therefore, directed the plaint to be returned qua all the defendants with liberty to plaintiff -respondent No. 1 for filing a fresh suit after compliance of the aforesaid provisions.

(3.) I have heard learned counsel for the parties and perused the impugned orders as well as the paper -book.