CHANDER SINGH Vs. GYAN PRAKASH

JUDGEMENT

(1.) The petitioner-defendant has filed this revision petition under Sec. 115, CPC feeling aggrieved by the order dated 2-4-97 passed by Additional District Judge No. 2, Udaipur in Civil Misc. Appeal No. 13/97 reversing the order dated 13-2-97 passed by the learned Additional Civil Judge (J.D.)-cum-Judicial Magistrate No. 1, Udaipur in Civil Misc. Case No. 19/96.

(2.) The non-petitioner-plaintiff filed a suit for injunction against the petitioner-defendant seeking a relief that the petitioner-defendant be restrained from raising construction over the plot in dispute particularly in the area earmarked for the set-backs. It may be stated that the learned Addl. District Judge No. 2, Udaipur in his order ordered for maintaining status quo in the set-back area of 10 ft. The case of the petitioner is that after passing of the above order maintaining status quo, the petitioner did not go ahead with any new construction but after lapse of long period after passing of the above order, the structure began to deteriorate. He, therefore, moved an application under Order 39, Rule 4, CPC seeking permission of the Court for carrying out a finishing work like plaster etc., which was absolutely necessary for the maintenance of the structure already made. The petitioner-defendant never intended to make any construction in the garb of the above application. The application was resisted by the plaintiff- non-petitioner. The learned trial Court vide its order dated 13-2-97 allowed the application of the petitioner-defendant and permitted the defendant to carry out necessary finishing work etc. for maintenance of the structure without making any new construction. The defendant was also asked to complete the same within a period of 15 days. The plaintiff-non-petitioner felt aggrieved and filed an appeal before the learned appellate Court. The learned appellate Court by the impugned order reversed the order of the trial Court mainly on the ground that the trial Court committed an error in exercising its jurisdiction inasmuch as the case of the petitioner-defendant did not fall within the ambit of Order 39, Rule 4, CPC. The learned appellate Court categorically made reference to the fact that the defendant-petitioner had some grievance at the time of passing the impugned order which he now agitated by filing an application purporting to be under Order 39, Rule 4, CPC.

(3.) I have heard Mr. Prakash Tatia, learned counsel for the petitioner and Mr. V. D. Vyas for the non-petitioner.