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2002 DIGILAW 355 (HP)

BHARAT BHUSHAN v. TRIBHUVAN KUMAR

2002-12-27

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J. - This civil revision under Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code) against the order dated 27.4.20CH passed by the learned Additional Sessions Judge, Shimla in Civil Misc. Appeal No. 2-S/14 of 1997 has been preferred by the petitioner-plaintiff (hereinafter referred to as the petitioners). 2. Brief facts leading to the presentation of this petition are that the petitioners instituted a suit for permanent injunction restraining they respondent-defendant (hereinafter referred to as the respondent) from carrying out any repair, additions, and alteration in the ground floor off the building known as House No. 6, Alley No. 12, Lower Bazar, Shimla1 without providing proper and effective support to first floor of the. Building. The case of the petitioners in short is that they are the | owners of the first floor of the aforesaid building. It is not in dispute that by virtue of a compromise decree between the parties, the respondent is in possession of the ground floor and the petitioners are in possession of the first floor. As per the terms of the compromise decree, the parties are duty bound to keep their respective portions of the premises in good, sound and perfect state and the petitioners have the right to support their respective portion of the building from the ground floor allotted to the respondent and in case of any renovation or reconstruction to be carried out by the parties, the same has to be carried out in a manner that does not affect the peaceful, convenient living and user of the parties. It is further cases of the petitioners that in the month of May, 1994, the respondent taking advantage of their absence started making unplanned additions and alteration in the ground floor in a manner so as to endanger the safety of the first floor which is in possession of the petitioners. Hence, the suit. 3. The respondent contested the suit on preliminary objections regarding maintainability, estoppel, valuation, cause of action and the suit being false and frivolous. On merits, it has been pleaded in the written statement that the construction work was carried out in accordance with the sanctioned plan and that appropriate precautions to the statability and safety of the first floor were taken. Thus, the claim of the petitioners has been denied. 4. On merits, it has been pleaded in the written statement that the construction work was carried out in accordance with the sanctioned plan and that appropriate precautions to the statability and safety of the first floor were taken. Thus, the claim of the petitioners has been denied. 4. Alongwith the plaint, the petitioners filed an application under Order 39 Rules 1 and 2 of the Code summarily reiterating therein the claim as made out in the plaint and further alleging that the construction work is being carried out by the respondent in a manner that there is eminent danger to the property of the petitioner and in violation of the compromise decree, therefore, an ad interim injunction restraining the respondent from carrying out the additions, alterations, renovation, digging and dismantling of the gourd floor of the premises had been prayed for. 5. The application was also resisted by the respondent. In the reply filed by the respondent, the averments made in the application regarding endangering the safety of first floor were denied and it was claimed that the petitioner No. 1 is bent upon to harass the respondent by making false and frivolous allegations and complaints and the construction has already been completed in accordance with the sanctioned plan and that balance of convenience was not in favour of the grant of ad interim injunction prayed for and in the event of such grant, the respondent would suffer irreparable loss and injury. 6. After hearing the parties, the learned trial Judge vide his order dated 8.11.1996 granted interim injunction restraining the respondent from carrying out the additions, renovations etc. in the premises till the disposal of the suit. 7. Being aggrieved, the respondent preferred the appeal which was heard and decided by the learned Additional District Judge and was partly allowed to the extent that the blanket interim injunction granted by the trial Court being indegoration of the rights of the affected party to enjoy the property was set aside and the respondent was permitted to make additions, alternations and renovation of the ground floor without causing any loss or danger to the petitioners and the suit property in their possession. 8. Feeling aggrieved by the impugned judgment, the petitioners have preferred the present revision petition. 9. I have heard the learned Counsel for the parties and have also gone through the relevant material. 10. 8. Feeling aggrieved by the impugned judgment, the petitioners have preferred the present revision petition. 9. I have heard the learned Counsel for the parties and have also gone through the relevant material. 10. It may be pointed out at the very outset that as per the condition of the compromise decree, the parties are duty bound to keep their respective portion of the building in good, sound and perfect state. To ensure such a state repairs etc. may be required. Moreover, the owner of the property has a right to develop, expand and preserve {it in a manner he likes. The only restraint which can be put upon him is that in the process of maintaining his property, he cannot cause nuisance or damage to the person or property of others. The impugned order has been passed by the learned Additional District Judge within the scope of the aforesaid settled position in law. 11. The operative part of the impugned judgment reads as under: "12. It is well settled principle of law that a person who is owner of a property has every right to enjoy it in a peaceful manner without causing any damage or detriment to the property of other co-owners or adjoining owners. To my mind the blanket stay order passed by the trial Court restraining the defendant from transferring or handing over the possession of the premises in question or making any kind of additions and alterations, renovation is completely indegoration of the rights of the affected party to enjoy the same. Therefore, the impugned order dated 8.11.1996 is partly hereby set aside. It is made clear that the defendant shall have the right to make addition, alteration and renovation in the ground floor of his premises without causing any loss or damage to the plaintiffs, suit property, i.e. the first storey of the suit property, which is in occupation of the plaintiffs. The order of the trial Court is modified to that extent only. Point No. 1 is answered accordingly." 12. The above quoted operative part of the judgment when read against the background of the case as already set out hereinafter, apparently is neither illegal nor without jurisdiction. 13. It is well settled that scope of interference by the High Court in exercise of its revisional jurisdiction is very narrow. Such an! interference may be justified only when the subordinate Court passing! 13. It is well settled that scope of interference by the High Court in exercise of its revisional jurisdiction is very narrow. Such an! interference may be justified only when the subordinate Court passing! the order has exercised the jurisdiction not vested in it or failed to exercise the jurisdiction vested in it or has exercised the jurisdiction vested in it illegally or with material irregularity. Therefore, to succeed in a petition under Section 115 of the Code, a party has to show that the Court passing the order had committed some jurisdictional error. This view is fully supportable on the basis of the ratio in Managing Director (MIG) Hindustan Aeronautics Limited, Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (P&S), Hindustan Aeronautics Limited, AIR 1973 SC 76 and Shiv Ram v. State of H.P. and others, Latest HLJ 2000 (H.P. 1024. 14. In Managing Director (MIG) Hindustan Aeronautics Limited (supra) the Honble Apex Court held as follows :- "5. In opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction, to make the order that it made. The order of the first appellate Court may be right or wrong : may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code : See the decision of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, 1966(1) SCR 102 : AIR 1966 SC 153 and D.L.F. Housing and Construction Co. (P) Ltd., New Delhi v. Sarup Singh, 1970(2) SCR 368 : AIR 1971 SC2324." 15. In Shiv Rams case (supra), this Court has held as under:- "12. It is thus evident from the above that the scope of interference by the High Court with the concurrent findings of the Courts below in exercise of its powers under Section 115 of the Code is very narrow. In Shiv Rams case (supra), this Court has held as under:- "12. It is thus evident from the above that the scope of interference by the High Court with the concurrent findings of the Courts below in exercise of its powers under Section 115 of the Code is very narrow. However, the interference by the High Court with the concurrent findings of the Court below will be justified only where such courts have exercised the jurisdiction not vested in them by law or have failed to exercise the jurisdiction vested in them or have acted in the exercise of such jurisdiction illegally or with material irregularity." 16. Since in passing the impugned order, the appellate Court below has not committed any jurisdictional error, therefore, in view of the above stated position in law, the impugned order does not call for any interference by this Court. 17. As a result, this revision petition merits dismissal and it is accordingly dismissed. 18. No order as to costs.