KARNAL IMPROVEMENT TRUST Vs. ISHWAR CHANDER

JUDGEMENT

(1.) Plaintiff-respondent filed a suit for permanent injunction restraining the defendant-Improvement Trust, not to demolish the portion shown as 'E B C F' in the site plan attached with the plaint. Along with the suit, he also filed two applications under Order 39, Rules 1 and 2 of the Code of Civil Procedure (for short "the Code") seeking interim injunctions. In one application, the plaintiff prayed for temporary injunction restraining the defendant not to demolish the portion shown as E B C F in the site plan during the pendency of the suit and in the another application, a prayer was made for granting ad interim injunction, restraining the defendant not to demolish the portion shown as EBCF in the site plan and further, not to take forcible and illegal possession of the same from him till the decision of the suit. The trial Court on a consideration of the matter, directed the parties to maintain status quo regarding the state of affairs existing at the spot. Defendant filed written statement controverting the averments made in the plaint. During the pendency of the suit, as per the allegations of the plaintiff, the defendant demolished the boundary wall and some portion of the house in dispute. The plaintiff, therefore, moved an application for amendment of the plaint for adding a relief of mandatory injunction for directing the defendant to restore the boundary wall and the house in the same condition as it was before, in its original condition. Amendment was allowed as prayed.

(2.) Meanwhile, the plaintiff also moved an application under Order 39, Rule 4 read with Section 151 of the Code with the allegations that the defendant had demolished the boundary wall and some portion of the house illegally and due to demolition of the boundary wall, the house had become unsafe as it is situated in such a locality where any crime of theft etc. could take place any time. It was also stated that the wife of the plaintiff is mental and a young daughter of twenty years was also residing with the plaintiff in the said house. Therefore, in order to provide safety to the house and the family, the order of status quo passed earlier may be modified and the plaintiff may be permitted, ad interim, to reconstruct the boundary walls of the house in question, in the interest of justice and equity. The application was resisted. It was stated that if the prayer made in the application was granted, it would amount to granting the final relief claimed in the suit, which cannot be done until the suit is decided on merits.

(3.) On a consideration of the matter, the trial Court came to the conclusion that application under Order 39, Rule 4 of the Code was not maintainable because under these provisions, no permission could be granted to reconstruct the boundary walls. The defendant demolished the boundary wall alleging it to be an encroachment on its land, which fact stood corroborated from the site plan, which was a part of the sale deed dated 15-7-1994 in respect of the property of the plaintiff. Trial Court also came to the conclusion that in the site plan as well as in the sale deed the portion was not shown to have been sold to the plaintiff and only a plot was shown to have been sold to him, which was lying adjacent to the property in dispute. As such the plaintiff was not the owner of the property in dispute. Trial Court further observed that construction raised by the plaintiff in the shape of boundary wall on the land of the defendant was certainly an encroachment and giving permission to the plaintiff to reconstruct the boundary wall would mean giving permission to him to encroach upon the land of the defendant. Thus finding no merit in the application, the same was dismissed by the trial Court by order dated 2-6-1998.