SANDEEP KUMAR Vs. HIMACHAL KHADI ASHARAM

JUDGEMENT

(1.) The serving agency, has, reported that the authorised agent of the respondent, has, refused, to, accept the service of notice, upon, it, hence, the afore refusal tantamounts to his/it becoming served in accordance, with, law, hence, the respondent is proceeded against ex-parte.

(2.) During the pendency of the plaintiff/respondent's herein, suit, hence seeking therethrough (i) rendition, of, a decree, of, permanent injunction, for, restraining the defendants/petitioners herein, from, collecting the debris over the roof top of the demised premises situated over Khasra No. 9888, 989, 990, 991, 996 and 1001, total measuring 213/39 sq. meters, (ii) and, for damaging the roof top of the shop in question built over Khasra No. 991 by collecting heap of debris and waste material thereon, (iii) and, also seeking therethrough a decree for mandatory injunction, for, directing the defendants, to, remove the debris from the roof top of the shop, hence, (iv) an application cast, under, the provisions of Order 39, Rules 1 and 2 of the CPC, stood preferred, before the learned trial Court, by the plaintiff/respondent herein, (v) seeking therethrough, rendition, of, an ad interim injunction, on grounds, para meteria, vis-a-vis, the afores canvassed grounds, in, the afore civil suit. Upon, the afore application, an order was passed by the learned trial Court on 18.12.2017, hence, directing the petitioners/defendants, to, remove the debris, as, kept, on, the roof of the demised premises, hence for obviating the seepage, of, water onto the demised premises, and, also hence for obviating damage becoming encumbered, upon, the stock, kept inside the demised premises.

(3.) Even though, and, even if, breaches, vis-a-vis, the afore orders, arose, and, were, made at the instance, of, the defendants/petitioners herein, yet the afore breaches, are, curable through, an application being cast, under, the provisions of Order 39, Rule 2-A of the CPC, (a) and, apparently are not remediable by the aggrieved plaintiff/respondent herein, through, the latter constituting an application, cast under Section 151 of the CPC, and, seeking therethrough, the purveying, of, police assistance, vis-a-vis, it, hence, for enabling, the, carrying out, of, the repair/re-construction of the damaged wall, of, the room/shop. Upon, the afore application hence, the, impugned affirmative order, stood, rendered on 22.8.2019, and, therethrough, the plaintiff/respondent was permitted to carry out, the, reconstruction, of, the damaged wall, of, the shop occupied by it. Since, the impugned direction, hence, visibly contradicts the relief granted, to, the plaintiff/respondent herein, under, conclusive orders recorded, by, the learned trial Court, upon, Case No. 248/6 of 2017, thereupon, the impugned order, suffers from, a, vice, of, gross non-application of mind, and, constrains this Court, for it, being quashed, and, set aside. Consequently, the impugned order rendered on 22.08.2019, by the learned trial Court, is, quashed and set aside.