MOON HOTEL PVT.LIMITED Vs. VENU BAKSHI

JUDGEMENT

(1.) By this application, the plaintiff -applicant (here - in after referred to as the applicant) has prayed for restraining the defendant -respondent No.l (hereafter referred to as the respondent) from carrying out any construction/development work whatsoever on Khewat No.21, Khatauni No. 30 min, khasra Nos. 474,475,476 and 477 situate in mauza Mehal Station Ward, Shimla, Up Mohal, Kali Ban, Teh. & Distt. Shimla till the disposal of the suit and mandatory injunction directing her to fill up the pits and take steps to ensure that no water seeps into the retaining wall of the applicant and the foundation of building known as Hotel Palace, Fingask Estate, Shimla. It is averred that the applicant has filed a civil suit for permanent prohibitory and mandatory injunction which discloses that the applicant has a very good prima -facie case which is likely to succeed in all probabilities, that in case stay is not granted irreparable loss and injury will be caused to the applicant which cannot be adequately compensated in terms of money and that the balance of convenience is in favour of grant of injunction as prayed for.

(2.) The suit filed by the applicant, as referred to above, is for permanent perpetual prohibitory and mandatory injunction and damages. The case as made out in the plaint, in brief, is that the applicant is owner in possession of Palace Hotel built on the land comprising khasra Nos. 456 to 460 measuring 300 square yards situate in mauza Up Mohal, Kali Bari, Mohal Station Ward, Bara Shimla, Teh. & Distt. Shimla and the respondent is the owner in possession of immoveable property i.e. a plot of land measuring 661 square yards comprising khasra No.s 474 to 477 abutted and bounded by Hotel Palace, Fingask Estate, a unit of the applicant in the East. The respondent had started construction on the said plot in a haphazard, dangerous and non -technical manner and has dug pits in the manner that large quantity of water has started seeping into the pits and resultantly to the adjoining retaining wall of the plaintiff resulting in damage to the property of the applicant assessed in the sum of Rs.9, 10,195.44 and has also endangered the building known as Hotel Palace, Fingask Estate, which may collapse due to the acts of the respondent. It is more -so because the soil of the area is not fit to sustain heavy structures. It is also claimed that to carry out the construction by the respondent, the pits have been dug at a distance of less than 2 from the retaining wall of the applicant. Earlier, a suit in this regard was instituted in the Court of learned Sub Judge (2), Shimla also. However, the same was subsequently withdrawn because of the higher valuation of the suit. It is also averred that the plans of the construction being raised by the respondent have been passed without application of mind and even the mandatory dry area of 5 meters between the two properties had not been kept whereas technically the respondent is required to construct a deep, concrete water proof RCC counter forte retaining wall immediately behind and near the netaining wall of the applicants hotel and in this regard, expert opinion has also been obtained by the plaintiff and has been filed with the plaint. Against this background, the plaintiff has claimed permanent perpetual prohibitory injunction restraining the respondent from carrying out the construction and development activities till she keeps mandatory setbacks around her building and constructs a deep concrete water proof RCC counter forte retaining wall at a distance of 5 meters from the existing retaining wall of the plaintiff; mandatory injunction directing the respondent to construct such a wall and directing the defendants 2 and 3 to withdraw the present sanction accorded by them in favour of the respondent and a decree for Rs.9,10,195.44 as damages alongwith interest @ 18 per annum from the date of filing of the suit till the recovery of the decretal amount.

(3.) It was alongwith this suit that this application for grant of temporary injunction has been moved.