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1995 DIGILAW 218 (GUJ)

Rajam Babu Gulam v. Sunderben Anandji Gala

1995-04-05

S.D.SHAH

body1995
JUDGMENT : S.D. Shah, J. 1. This CRA under Section 115 of Civil Procedure Code is filed by the original defendant against the respondent-plaintiffs to challenge the legality and validity of the order passed in Civil Misc. Appeal No. 39/94 by the Extra Asst. Judge, Kutch-Bhuj. 2. There is no dispute about the fact that the present respondents (original plaintiffs) instituted RCS No. 30/89 in the Court of Civil Judge (JD), Mandra and prayed for temporary injunction restraining the petitioner- defendant from in any way interfering with the work of construction of wall in question which was then demolished and which was to be reconstructed. It appears that the trial Court after "hearing the parties, and after taking into consideration the pleadings of the parties granted temporary injunction as prayed for according to which the respondent-plaintiffs were permitted to put up construction in house bearing Gram Panchayat No. 6/105 at Vadala and the petitioner-defendant was restrained from, in anyway, interfering with such work including the work of demolition of wall and reconstruction of wall. Said injunction has become final. 3. It appears that consistent with the said injunction respondent- plaintiff already reconstructed the whole building including the disputed wall and the plaster of the whole building excepting the plastering on the Northern side of the wall in question is allowed. Admittedly, Northern side of the wall in dispute is within the premises of the petitioner-defendant. For the purpose of plastering of said wall on the Northern side respondent-plaintiffs are required to enter into the premises of the petitioner-defendant and then only the Northern side portion of the wall in question could be plastered. The petitioner-defendant did not permit the entry to the respondent-plaintiffs for the said purpose and, therefore, application was given to the trial Court under Order 39 Rule 2A of Civil Procedure Code read with Section 151 of Civil Procedure Code for permitting the plaintiffs to enter into the premises of the petitioner-defendant for the purpose of carrying out plastering work on the Northern side of the wall or in the alternative it was prayed that action should be taken for contempt of court against the petitioner for not complying with the order of injunction initially granted by the trial Court. 4. Said application preferred by the plaintiffs at Exh. 30 came to be rejected by the trial Court by its judgment and order, dated 17.1.1994. 4. Said application preferred by the plaintiffs at Exh. 30 came to be rejected by the trial Court by its judgment and order, dated 17.1.1994. Being aggrieved by the said order the plaintiffs preferred Civil Misc. Appeal No. 39/94 in the Court of Extra Asst. Judge, Kutch-Bhuj who has dismissed the said appeal and passed the impugned order which is the subject-matter of this revision application. 5. To be fair to the Extra Asst. Judge, it must be stated that he was conscious of his jurisdictional limitation. He has, therefore, very clearly stated in detail in para 3 of the impugned judgment that by the injunction which was granted by the trial Court the original plaintiffs were permitted to put construction and the defendant was restrained from obstructing the work of such construction. He also noted that plastering of wall is part and parcel of the construction for building which permitted but when such plastering of building required entry into the house of other side or opposite party no specific direction in this regard is sought from the trial Court nor the trial Court has given specific direction permitting the plaintiffs to enter the house of the defendant for the purpose of plastering the wall of Northern side. He, therefore, took the view that it cannot be said that the petitioner-defendant was committing breach of the order of injunction granted by the trial Court, and, therefore, no action could be taken against the petitioner-defendant for breach of injunction. However, taking charitable view of the matter, he was of the opinion that since both the parties were neighbours ends of justice would be met if the plaintiffs are permitted to enter into the house of the defendant during specific period for the purpose of plastering the Northern side wall. It is this part of the order which aggrieved the defendant and he has approached this Court under Section 115 of Civil Procedure Code. 6. Having heard Mr. Y.S. Mankad, Ld. Advocate for petitioner as well as Mr. C.C. Kamdar for respondents-plaintiffs I have no manner of doubt in my mind that what the lower appellate Court Judge has done is not permissible in a Court of law which is acting within the four corners of law. It is not an extraordinary jurisdiction which the civil Court is exercising unlike the High Court under Article 226 of the Constitution of India. It is not an extraordinary jurisdiction which the civil Court is exercising unlike the High Court under Article 226 of the Constitution of India. It is a dispute of civil nature between the two parties. While the right to reconstruct the house of the plaintiff is accepted by the trial Court and the plaintiff is permitted to reconstruct the house the injunction granted by the trial Court and not disturbed by any other court can be well said to be within the jurisdiction of the Court. However, when the question arises as to whether for the purpose of complying with such direction the party-plaintiff can be permitted to enter the house of opposite party a wider question of civil nature would arise as to whether there could be right of entry into the house of another party in civil law. In absence of any specific acceptance of such right by the opposite party the Court of law cannot in an application for breach of injunction propound the said right and accept such right in favour of plaintiff and against the defendant more so because in so doing it is clearly exceeding its jurisdiction. Had such a relief been claimed in the application for temporary injunction or in the suit and had the Court accepted such right in favour of plaintiff, the different outcome could be there, but in the absence of any pleading as well as prayer of this nature the common right of entry into the house of defendant in an application for breach of temporary injunction, in my opinion, would amount to exceeding the jurisdiction vested in the Court of law. In fact, the lower appellate Court Judge has rightly realised that fact and has clearly stated that no breach of injunction is committed by the defendant, but then in the anxiety to do substantial justice he has proceeded to issue direction which unfortunately has no jurisdiction to do. It is in these circumstances that the order of the lower appellate Court is required to be interfered with and same is required to be quashed and set aside. 7. In the result, this CRA succeeds. Judgment and order of the Extra Asstt. It is in these circumstances that the order of the lower appellate Court is required to be interfered with and same is required to be quashed and set aside. 7. In the result, this CRA succeeds. Judgment and order of the Extra Asstt. Judge, Kutch-Bhuj, dated 12.8.1994 insofar as it permits the plaintiff to enter into the house of the defendant between 8.00 a.m. to 6.00 p.m. for the purpose of plastering the wall from Northern side is hereby quashed and set aside. Rule is made absolute accordingly. No costs. Revision allowed.