KALYAN CHAND Vs. ANITA ARORA

JUDGEMENT

(1.) THIS petition is directed against the order dated 18.08.2010 passed by the learned trial Court rejecting the application filed under Section 151 Code of Civil Procedure for demolition of the structure raised by the Defendant.

(2.) THE Plaintiff filed a suit claiming that the Respondent had raised two pillars on a portion of the suit land which belongs to the Plaintiff and that the Defendant was intending to encroach upon the land of the Plaintiff. A stay order was passed in the main suit restraining the Defendant from raising any construction over the suit land. Some construction has been raised by the Defendant and proceedings under Order 39 Rule 2A are also going on. The stand of the Defendant is that the construction has not been raised on the suit land but on the land which belongs to the Defendant herself. During the pendency of the suit and proceeding under Order 39 Rule 2A Plaintiff moved an application under Section 151 Code of Civil Procedure praying that the construction raised by the Defendant be ordered to be demolished since it has been raised in violation of the stay order. The learned trial court held that this application was not maintainable since it would virtually amount to allowing the suit itself as well as proceedings under Order 39 Rule 2A. This order is under challenge.

(3.) IN my view the order passed by the learned trial court is fully justified. The first question which has to be decided is whether the Defendant has raised the construction on the suit land or not. This issue can only be decided after evidence is led either in the main suit or in proceedings under Order 39 Rule 2A but without such an allegation being proved on record no order of demolition can be passed especially when there is no such prayer in the main suit itself. Therefore, there is no merit in the petition, which is accordingly rejected. No order as to costs.