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1998 DIGILAW 247 (MP)

Beni Prasad Sahu v. Mayabai

1998-03-19

S.P.SRIVASTAVA

body1998
JUDGMENT The defendant-applicant feels aggrieved by an order passed by the lower appellate Court in an appeal filed by them directed against an order passed by the trial Court granting an ad interim temporary injunction whereunder while upholding the finding of the trial Court returned against the present applicant the injunction has been confined to the passage having a width of 4 feet only with a direction for removal of the constructions, if any, obstructing this passage. I have heard the learned counsel for the defendant-applicant as well as the learned counsel representing the plaintiff-respondent and have carefully perused the record and the orders passed by the trial Court as well as the lower appellate Court. The suit giving rise to the impugned order had been filed praying for a decree for permanent prohibitory injunction restraining the defendants from interfering in the user of the land in dispute by the plaintiff as a passage and flow of water. The land in dispute was shown to have a width of 13 feet and the length of 20 feet. During the pendency of the suit an application seeking an ad interim injunction in terms of the decree prayed for was filed by the plaintiff. The trial Court by its order dated 2.9.1997 allowed the application filed by the plaintiff and granted an ad interim injunction as prayed for. On an appraisal of evidence and material on record the trial Court found that the passage claimed by the plaintiff was the only passage available' to her for the ingress and egress of the house in dispute. However, it was found that the defendants have raised constructions over the land in dispute which had already been completed. A perusal of the order passed by the trial Court indicates that it had prima facie accepted the claim of the plaintiff about the easement of necessity set up by her and the whole purpose of the suit was likely to be frustrated in the event of the refusal of the grant of ad interim injunction prayed for. The defendants had challenged the aforesaid orders passed by the trial Court and in appeal as already noticed hereinabove. The appellate Court endorsed the findings of the trial Court but had modified the injunction so as to confine it to a passage having a width of only 4 feet. The defendants had challenged the aforesaid orders passed by the trial Court and in appeal as already noticed hereinabove. The appellate Court endorsed the findings of the trial Court but had modified the injunction so as to confine it to a passage having a width of only 4 feet. The grievance of the appellant is that although no relief in regard to the grant of any mandatory injunction has been prayed for by the plaintiff yet the appellate Court has issued a mandatory injunction requiring the removal of the construction raised by the defendants on the land in dispute which even according to the trial Court had been completed. The contention is that no such mandatory injunction in the circumstances of the case should have been granted especially when by the time the interim injunction had been granted by the trial Court the construction, which according to the defendants, had been' raised prior to the filing of the suit, were already completed. The suit had been filed by the plaintiff in the month of August 1997. Considering the totality of the circumstances brought on record, I am of the opinion that the suit itself deserves to be decided finally expeditiously. The learned counsel for the parties have also jointly, requested that an appropriate direction in this regard be issued. In the meanwhile, the status quo in respect of the property in dispute as on today be maintained. In the aforesaid view of the matter, this appeal is disposed of finally with the direction to the trial Court to ensure that the suit itself is disposed of finally within a period not later than six months from the date of production of certified copy of this order before it. In the meanwhile for the aforesaid period the status quo regarding the property in dispute as on today be maintained. It is made clear that the views expressed and the observations made in the impugned judgments will be taken as only with reference to the stage of the proceedings and will not in any manner imply or mean reflections or comments on the merits of the case which shall be decided by the trial Court after considering the evidence led by the parties in the suit in support of their respective cases. There shall, however, be no order as to costs.