RAP MEDIA LIMITED Vs. NIRMAL SINGH

JUDGEMENT

(1.) THE revision petitioner is the defendant in suit against whom the trial court and the appellate court granted an interim prayer for mandatory injunction for construction of retaining a wall to a length of about 900 feet along the boundary dividing the property of the plaintiffs and the defendant. The defendant was a purchaser of the land from the plaintiffs and had, in an attempt to dig foundation for a multiplex (complex of buildings) dug out soil that caused subsidence on the plaintiffs' property and the lateral support which the plaintiff was entitled to secure from the adjoining owner having been withdrawn, suffered serious soil erosion and damage to the crops raised upon their own property. The Local Commissioner, who had been appointed, noticed that there had been a digging of earth of approximately 30 to 40 feet along the entire property and there was soil erosion in the property of the plaintiffs due to the activities of the defendant. Finding a prima facie case available to the plaintiffs, both the courts have granted a relief of interim mandatory injunction.

(2.) THE revision petitioner had obtained an order of stay but would claim that whatever damage had been done, had been on account of unprecedented rains that took place in the year 2009 and the damage to the plaintiff's property could not have taken as resultant to the defendant's action. However, without prejudice to the contentions to be taken in defence, the petitioner -Company would contend that they have shored up the subsidence that was caused by sufficient embankment all along the boundary. As of now, there is no particular damage. At the previous hearing before the arguments got underway, I asked the Senior Counsel for the petitioner whether there could be a via -media that could satisfy the interest of the plaintiff so that the issue of whether the defendant's acts either constituted damage and whether any further damage to the property could be stopped, could be decided at the time of disposal of the case. The revision petitioner through its authorized representative has filed an affidavit setting out its contention that there is a well defined path approximately 10 to 15 feet along the boundary. The plaintiffs' own property is slightly at a lower level and the damage that has resulted cannot be attributed to the defendant Company. It is also contended that the defendant has spent about Rs. 9 lacs to fill up the soil to maintain good relations and subsequent to the defendant's acts of reparation, there has been no damage to the plaintiffs' property for a period of 6 years. It is contended in the affidavit that without prejudice to the stand taken by the defendant that if ever there is any abnormal or unprecedented rain and any seepage takes place from the side of the land of the defendant towards the plaintiffs' land through the pathway that exists between the respective lands, the defendant would restore the seepage so that no further damage is caused.

(3.) THERE is no doubt in my mind that prima facie, as found by the court below, that the defendant's act of digging of foundation has caused subsidence and the lateral support which the plaintiff is entitled to has been withdrawn causing some damage. The relief of mandatory injunction is an extraordinary relief, for, it could result in securing for the plaintiff a relief even before the trial and can put serious prejudice to a defence that is taken. Courts have always thrown enormous caution and looked for special circumstances when such an extraordinary relief could be granted. There are at least two circumstances which have been addressed, one by the High Court of Kerala and yet another by the Himachal Pradesh High Court, providing for mandatory relief of lateral support when it had evidence that the subsidence of land had resulted in caving in of portions of the land of the adjoining owner. In the decision in Dr. I.K.J. Jacob Versus K. Nandagopalan and others - : AIR 1983 Ker 177, the Kerala High Court was upholding the right recognized by the appellate court for lateral support to the plaintiff but, while modifying the relief which was declined by the lower appellate court, the High Court held, any person, who is threatened with injury to his right of lateral support, could seek an injunction from a civil court to restrain such an act and in appropriate cases where the injury had already been caused, a mandatory injunction might also issue to restore the lateral support by any means that the court finds feasible. In the decision in the Himachal Pradesh High Court in Anjani Kumar Versus Desh Raj and others - : 2013(3) ShimLC1577, the court was allowing for a preventive injunction against the respondents from lowering the level of the land that could cause subsidence. The learned senior counsel for the respondents would cite some other decisions which I do not think necessary to refer, which are on general principles of law relating to interim orders.