JAGDISH RAM Vs. VED PRAKASH

JUDGEMENT

(1.) The present petition is maintained by the petitioner-plaintiff (hereinafter referred to as 'the petitioner') against the order of learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, H.P. passed in CMA No. 15-G/2005/2004, dated 30.11.2006, whereby the order of learned Civil Judge (Junior Division), Court No. 2, Dehra, District Kangra, H.P., passed in application under Order 39, Rule 2A CPC, with respect to removal of iron stairs by the respondent, was set aside.

(2.) Briefly stating the facts giving rise to the present petition are that the petitioner instituted a suit against the defendant (hereinafter referred to as 'the respondent') seeking permanent prohibitory injunction, wherein it was averred that defendant has raised construction by encroaching upon a common passage used for ingress and egress. The petitioner had also sought alternative relief of mandatory injunction, in case the defendant succeeds in raising the construction. The suit was filed along with application under Sec. 39, Rule 2-A Civil Procedure Code for interim stay order, wherein the learned Trial Court, vide order dated 30.09.2004, directed the respondents to remove the iron stairs with immediate effect and file an undertaking in the Court within 24 hours to the effect that he has removed the said iron stairs and further that he would not cause any hindrance on the disputed path till the disposal of the main suit. Despite the orders of the learned Trial Court, the defendant continued with the construction. The Local Commissioner also visited the spot and submitted the report. On the assurance of the parties, the learned Trial Court, vide order dated 30.12.1999, directed the parties to maintain status quo qua nature of the suit land and path. However, the defendant in the month of Nov., 2002, erected the iron stairs, blocking the path of the petitioner and also in utter disregard to the order of the learned Trial Court.

(3.) The respondent, by filing reply to the application, admitted that status quo order had been passed by the learned Trial Court. It is also averred that report of Shri V.S. Gill, Advocate, was improper. The defendant was not present in the village during third week of Nov., 2002, and his family members by supplanting old bamboo stairs, which got damaged, tethered iron stairs. The defendant has further averred that the stairs were not supplanted over the path (deodi) and the existence of deodi was to be decided in the civil suit. The defendant prayed for dismissal of the application.