PRABHU CHAND Vs. MOHD AZIM KHAN

JUDGEMENT

(1.) MOHD. Azim Khan filed a suit in the court of Munsif, Jaipur East on the 17th of November, 1948 against Prabhu Chand and others for an injunction directing the defendant to leave 4-1/2 wide lane between the house of the plaintiff and that of the defendant. The suit was based on Rule 15 of the Municipal Bye-laws framed under sec. 64 (1) (t) and 128 (2) (b) of the Jaipur Municipal Act, 1943. The plaintiff also took shelter under the local practice of the city of Jaipur. During the pendency of this suit the said Rule 15 of the Municipal Bye-laws was repealed. The trial court, therefore, dismissed the suit on the 14th May, 1951. An appeal was filed by the plaintiff in the court of the District Judge, Jaipur City and the learned District Judge held that even though Rule 15 of the Municipal Bye-laws had been repealed, a right which had accrued to the plaintiff cannot be lost on account of the repeal during the pendency of the suit. He, therefore, set aside the decision of the trial court and remanded the suit for disposal on merits under Order 41, Rule 23 of the Civil Procedure Code.

(2.) THE defendant has come in appeal against that order of the learned District Judge and it is urged on his behalf that : - (1) Rule 12 of the Municipal Bye-laws does not confer any right on any holder of the property to confer its application and the plaintiff consequently has no right to file a suit for an injunction requiring the defendant to leave 4-1/2 wide lane between the houses of the parties to the suit. (2) Even if it be accused that Rule 15 confers any right on the holder of the house, to enforce the application of that Rule, since the said Rule is merely a piece of adjective law, it cannot be invoked after its repeal. (3) We have heard learned counsel for both the sides. (4) Rule 15 of the Municipal Bye-laws is as follows : - "a strip of land 4-1/2 wide shall be left vacant from the adjoining existing building where new building is to be created except in cases of reconstruction on old foundation. " THE language of Rule 15 is very plain and no right is conferred by this Rule on any private individual owning a house, property in the city of Jaipur. This Rule is meant for the guidance of the Municipality when sanction of contemplated constructions were to be granted by it. In the present case it is said, the Municipality in its discretion allowed the defendant to make his constructions after leaving a lane 3' wide on one side for an injunction against the defendant. Even assuming for a moment for the sake of argument that the plaintiff had a right to sue for an injunction on account of the said Rule 15, the position which works out today after its repeal is that the defendant is at liberty to make any constructions on his lands without leaving any such lane between the two houses. If the defendant can make a construction today disregarding Rule 15 which has been repealed, there is no reason for the grant of an injunction against him on the basis of the existence of some Bye-laws at the time the suit had been filed. Under these circumstances, no useful purpose would be served by sending the case back to the trial court because the very foundation of the plaintiff's suit has collapsed.