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2005 DIGILAW 133 (GUJ)

PARSHOTTAM DASSJI MOHATA v. K. B. MAHATA

2005-02-28

C.K.BUCH

body2005
C. K. BUCH, J. ( 1 ) THE present petition, moved under Article 227 of the Constitution of India, is arising out of the order passed below Exh. 5 in H. R. P. Civil Suit No. 785 of 1999. The petitioner-tenant ( hereinafter referred to as the plaintiff) is the orig. plaintiff of the aforesaid Suit. ( 2 ) IT is necessary to state some facts in brief. The plaintiff instituted the Suit for declaration and injunction against the respondent-orig. defendant-landlord (hereinafter referred to as the defendant), who is a successor in title of the property being a new purchaser, in the Small Causes Court at Ahmedabad, seeking injunction from blocking the passage for climbing south-west side staircase leading to the rented premises occupied by the plaintiff. Undisputedly, the plaintiff is using the premises rented to him for business/commercial purpose. By drawing supplementary proceedings under Order 39 Rule I and II of the Civil procedure Code, 1908 (for short the Code), the plaintiff prayed for interim injunction against obstruction, etc. in terms of the main relief of injunction. It is the say of the plaintiff that he is using the suit-passage as a staircase since years prior to when the defendant was not the landlord. The lower court after hearing the learned counsel appearing for the plaintiff granted interim injunction, except for the bracketed portion of the prayer clause. A xerox copy of the application Exh. 5 is fortunately available on record and it would be convenient to reproduce the relevant paragraph :9 (A) of the application, which reads as under:"9 (A) To pass an order of interim injunction in favour of the plaintiff and against the defendant, their agents and others restraining them (from hammering anywhere near the suit-premises which may cause crakes in the suit-premises, from putting any useless articles and trash before the suit-premises.) From cutting the passage portion approaching the suit-premises from the south-west staircase side, not to stop electric lines on the passage so long as suit-premises is open, not to stop water supply in any way to the suit-premises on the line of others, and not to curtail any tenancy rights enjoyed previously, till further orders in the interest of justice. " ( 3 ) THE ex-parte interim injunction in terms of para:9 (A), except for the bracketed portion, of the said application, was granted till 5th July, 1999. " ( 3 ) THE ex-parte interim injunction in terms of para:9 (A), except for the bracketed portion, of the said application, was granted till 5th July, 1999. After hearing the parties, the Court ultimately by final judgment rejected the application Exh. 5 and vacated the ad interim injunction, restraining the obstruction or blocking passage for climbing south-west side staircase leading to the rented premises of the plaintiff, observing that the plaintiff can reach to his premises by another staircase made on south-east side in the very property. It is further observed by the learned Judge that as per the report prepared by the Court commissioner, there were two staircases for going up and the plaintiff was able to use any of these two staircases i am told that the second staircase for which the Suit is filed was a wooden staircase and through that staircase also the plaintiff was able to reach to the rented premises. The plaintiff thereafter approached the appellate Court by filing Appeal From Order and obtained interim relief. But it is clear from the record as to whether pending hearing and disposal of the Appeal From order No. 39 of 2000, any ex-parte or by-parte order in the nature of prohibition or direction was passed by the appellate Court or not. From the compilation given by the plaintiff with the memo of the petition, it emerges that after dismissal of the application Exh. 5 on 31. 3. 2000, the Appeal From Order was prepared on 24th april, 2000 and ultimately, it came to be decided by the appellate Bench on 28th April, 2000. So in a couple of days, the Appellate Bench has decided the Appeal From order and dismissed the same. The Appellate Bench was also pleased to dismiss both the applications and confirmed the order passed below applications at Exhs. 5 and 26. ( 4 ) FEELING aggrieved by the order passed by the appellate Bench of the Small Causes Court, Ahmedabad, the present petition has been moved. It is the say of the plaintiff that to enable him to obtain some interim relief from this Court, the lower Court continued the stay till 19th June, 2000. 5 and 26. ( 4 ) FEELING aggrieved by the order passed by the appellate Bench of the Small Causes Court, Ahmedabad, the present petition has been moved. It is the say of the plaintiff that to enable him to obtain some interim relief from this Court, the lower Court continued the stay till 19th June, 2000. ( 5 ) THE orders passed by the learned Judge, Small causes Court and Appellate Bench of the Small Causes court at Ahmedabad, have been assailed on various grounds mentioned in paragraph:5 of the memo of the petition and it is prayed that both the judgment and orders of the lower Courts may be reversed and this Court should grant the prayer made in terms of paragraph:9 (A) in the application Exh. 5 preferred before the lower Court. ( 6 ) ACCORDING to the plaintiff, this Court granted order of status quo on 19th June, 2000 and this order was conveyed to the defendant; and he was made aware about passing of the status quo order on 3rd July, 2000 and the suit-passage (staircase) was removed and the passage from that side was blocked on or about 28th June, 2000 and the suit-passage (staircase) regarding which the status quo order was very well operating had been clearly removed and there was breach of the order passed by this Court. This is nothing but a breach of injunction and, therefore only, the Civil Application is moved with a prayer that appropriate orders by this Court should be passed under order 39 Rule 2 (A) r/w. Sections 141 and 115 of the Code and this Court should initiate separate proceedings of contempt of Court against the defendant. ( 7 ) IT is the say of the plaintiff that the act of removal of the wooden staircase and thereby closing passage available to the plaintiff is nothing but circumvention of the protection given by the Court and the defendant with a view to overreach the process of court has admittedly removed the wooden staircase on 28th june, 2000. According to Mr. Shah, the status-quo regarding the Suit-staircase ordered by this Court was very well in operation, and removal of the same is an act of commission of breach of interim injunction. According to Mr. According to Mr. Shah, the status-quo regarding the Suit-staircase ordered by this Court was very well in operation, and removal of the same is an act of commission of breach of interim injunction. According to Mr. Shah, it is possible to infer that the defendant has knowingly committed breach and, therefore, he should be directed to restore the situation that was existing on 19th June, 2000, the day on which this Court had granted the order of status quo. It is also submitted that appropriate orders envisaged under Order 39 Rule 2 (A) of the Code may be passed against the defendant and this court may also initiate suo motu contempt proceedings. Unless the defendant purges the contempt committed by it by restoring the status quo about the Suit-staircase, it may not be heard on merit in the petition as well as in the application. Of course, formal restoration was not prayed for by the plaintiff on the day on which present civil Application was moved. However, by a draft amendment, this relief has been inserted in the Civil application. According to Mr. Shah, while placing his say, the plaintiff has referred to the contents of affidavit filed in support his say by Himmatlal L. Langhnojia, who is an advocate. It is submitted that mr. Langhnojia was appearing for the plaintiff in H. R. P. Civil Suit No. 785 of 1999 and also in Appeal From Order no. 39 of 2000. This advocate has a standing of about 50 years and according to him, he is exclusively practicing on Civil Side for the last about 10 years and the say of mr. Shah, therefore, should not be ignored in holding that the defendant has attempted to overreach the process of the Court and thereby, it has removed the Suit-staircase ignoring the order asking it to maintain status quo. ( 8 ) MR. S. M. SHAH, learned counsel appearing for the plaintiff, has drawn attention of the Court to certain documents produced by the defendant in the reply affidavit i. e. photographs and other documents which are at page nos. 44 and 46 of the memo of the petition. While developing the arguments on the strength of the footnote in the labour bill at page no. 46 of the memo of the petition, it is submitted that even on 29th June, 2000, the work must not have been completed. 44 and 46 of the memo of the petition. While developing the arguments on the strength of the footnote in the labour bill at page no. 46 of the memo of the petition, it is submitted that even on 29th June, 2000, the work must not have been completed. Even as per the labour contractor, he had started removal of wooden staircase in question on 28th June, 2000 and that too after 02-00 p. m. So there was no reason to prepare the bill on 30th June, 2000. It is the say of Mr. Shah that as it is a case of two concurrent findings of facts on the point of prima facie case and balance of convenience in favour of the plaintiff, this Court should direct the defendant to restore the status quo-ante and thereafter, the lower Court should be directed to hear and decide the suit on merit granting interim injunction in terms of application Exh. 5 of the Suit. According to Mr. Shah, there is sufficient evidence on record to show that the order of status quo passed by this Court was conveyed by post to the defendant; and the advocate appearing in the lower Court had intimated the learned counsel appearing for the otherside about the order passed by this Court. However, this letter was written and despatched is also narrated by the petitioner. A xerox copy of the certificate of posting is also produced in support of the say of the advocate Mr. Langhnojia. ( 9 ) IN support of his say, Mr. Shah has placed reliance on the decision in the case of Bhupatlal govindji v. Bhanumati Dayalal, reported in 1983 (2) GLR 1137 and it is submitted that the ratio of the decision of this Court squarely supports the facts of the present case. In this cited decision, this Court has observed that :"8. . . . . . The argument, no doubt, is to be considered with concern, but whenever it appears to a court of law that a party is shrewd enough to over-reach the legal process, the Court should put its foot down and see that this shrewdness does not stand rewarded. In other words, if necessary, the clock should be made to move back in order to restore the legal position which would have continued, had that party not taken benefit of that intervening period. In other words, if necessary, the clock should be made to move back in order to restore the legal position which would have continued, had that party not taken benefit of that intervening period. " ( 10 ) THIS cited decision is passed while dealing with the Second Appeal, where specific question of law was placed before the Bench and while answering the question framed in paragraph no. 5 (A) of the cited decision, the court has held that if a party is shrewd enough to over-reach the legal process, the Court has ample powers to see that this shrewdness is not rewarded and the Court is entitled to restore the legal position. The ratio, therefore, is that the Court is entitled to issue such direction and pass an order of mandatory nature. So on facts, at an interlocutory stage and that too in a supplementary proceeding, such a relief of mandatory nature should be granted or it is necessary to grant such relief is the question, which requires to be answered appreciating the facts and other circumstances emerging from record. ( 11 ) THE second decision cited by Mr. Shah is in the case of Dhirajlal Vithaldas Kavaiya v. Rasiklal chahdulal Patel, reported in 1993 (1) GLR 206 . In this cited decision, the Court was dealing with Civil Revision application and by allowing application Exhs. 5 and 15 for mandatory order, this Court directed the defendant to hand over the possession of the Suit-shop. The facts of the cited decision are that on an application Exh. 5 preferred under Order 39 Rule I and II r/w. Section 151 of the Code, the order of status quo was granted but the defendant broke open the lock and applied his own lock and sealed the shutters by welding them. The application exh. 15 praying for mandatory relief was filed and the question answered by the Court is whether the Court below were justified in directing the defendant to hand over possession of the Suit-shop to the plaintiff during the pendency of the proceedings by breaking open the lock and welding applied by the defendant on the shutter of the suit-shop. This Court confirmed the direction issued in the nature of mandamus and refused to interfere with the findings in any manner. Even request for modification has also not been accepted. This Court confirmed the direction issued in the nature of mandamus and refused to interfere with the findings in any manner. Even request for modification has also not been accepted. Undisputedly, in ennumber of decisions, High Courts of the country have held that in such circumstances by exercising inherent powers under section 115 of the Code, the Court can direct a party who is at fault to remedy wrong committed by him by granting appropriate relief to the aggrieved party. The facts of the cited decision are sharply different than of the present case. ( 12 ) MR. S. M. Shah, learned counsel appearing for the plaintiff, has also placed reliance on the decision of this Court, wherein the Division Bench of this Court has observed that :" xxx xxx xxx on the expiry of the two months period permitted by the decree, respondent no. 1 took out execution proceedings and obtained a warrant for possession. In the said execution proceedings, a statement was made to the effect that no appeal has been preferred against the judgment and decree passed in the suit. A warrant for possession was issued and the same was executed on 19th April, 1985. Intimation regarding the execution of the warrant for possession was given to the appellant whereupon the applicant appears to have contacted his advocate at Ahmedabad who hurriedly obtained an order for maintenance of status quo from our learned brother Gheewala, J. , as the Division Bench was not available at that point of time. However, before that order could be communicated, the possession of the land was delivered to the first respondent at about 12. 45 p. M. on 19th April, 1985. The panchnama drawn up on the occasion is produced at annexure a to the petition. The applicant then filed an application in the trial Court for restoration of possession but the same was not entertained and was rejected by the learned trial Judge on 10th may, 1985. He, therefore, preferred this application indicating the circumstances in which the learned advocate for the applicant could not obtain interim orders from this Court in time, that is, before the execution of the warrant for possession. " ( 13 ) ULTIMATELY, the Division Bench has held that "in view of particular facts, we are of the opinion that status quo ante as on 18th April, 1985, ought to be restored. " ( 13 ) ULTIMATELY, the Division Bench has held that "in view of particular facts, we are of the opinion that status quo ante as on 18th April, 1985, ought to be restored. We direct that the same be restored, that is to say, that the possession of the land be restored to the applicant of which he came to be dispossessed under panchnama dated 19th April, 1985. " ( 14 ) THE above cited decision would not help the plaintiff because as stated in the above quoted paragraph, the learned counsel appearing for the decree holder had made a statement before the Executing Court that "no appeal has been preferred against the judgment and decree passed in the Suit" and, therefore, warrant for possession was issued. In fact and in reality, the facts were totally different and the decree holder was served with the Caveat Application and he was aware of the institution of the First Appeal preferred in this court and the same was posted for hearing on 17th April, 1985, and it was listed for hearing on 18th April, 1985 and 19th April, 1985; but no order could be obtained from this Court as the advocates of this Court abstained from work. ( 15 ) IN the present case, the plaintiff had approached the Court for interim relief as mentioned hereinabove and a qualified ex-parte ad interim relief was granted and for stating facts mainly in paragraph:4 of the injunction application; alleging in paragraph:3 of the application that he is being harassed by the defendant, new owner of the property. While recording findings, both the lower courts were pleased to consider the facts mentioned in the application Exh. 5 mainly and it would be beneficial to reproduce the relevant paragraph nos. 4 and 5 of the application Exh. 5, which are as under :"4. THE defendants have already taken a view for renovations of their building by removing structures as per their requirements, for which the plaintiff has no objection, so far as his tenancy rights are not affected adversely. there are two stair-cases in the building for coming to the suit-premises. One on the eastern side and another on the western side. On the eastern side stair-case, was also utilised by the plaintiffs staff etc. for passages. there are two stair-cases in the building for coming to the suit-premises. One on the eastern side and another on the western side. On the eastern side stair-case, was also utilised by the plaintiffs staff etc. for passages. Defendants have removed this stair case for making alterations in the structures, for which they have no objection as western side stair-case is available for our passages and which is only used by us mainly. The defendants are interested to remove this stair-case completely so that their office area may increase by removing the passage portion of approach to the suit premises, for which we have our objections, highly, but it is to a deaf ear. Eastern side stair-case is mostly completed, though not complete yet. 5. PLAINTIFF apprehend that the defendants without obtaining the sanction of Ahmedabad municipal Corporation have started for altering the structures of the building. As per plaintiffs knowledge when any changes are to be sanctioned by the Corporation, their men are coming to see personally and contact the persons affected thereby. If our objections were invited by the Corporation, we would have objected highly, as our tenancy rights are highly affected and plaintiff would have taken action against corporation, if defendants influences would have prevailed over Corporation by way of injunction, which is declared hereby. " ( 16 ) AFTER hearing the parties, the lower Court has modified the order allowing the application in part and; directed and restrained the defendant from making any obstruction in water supply and electricity supply to the premises rented to the plaintiff till final disposal of the Suit and vacated the rest of the injunction which was granted earlier ex-parte. Simultaneously, granting application Exh. 19 filed by the plaintiff and the defendant was directed to make the repairs of the cracks in the Suit premises. One application preferred by the plaintiff at Exh. 26 also came to be dismissed by the said order, saying that the plaintiff has prayed for injunction of mandatory nature and there is no substance in the application Exh. 26. It emerges from record that there were two staircases; one of which is wooden staircase. The main dispute between the parties is qua this very wooden staircase. The plaintiff claims that he is entitled to use both these staircases i. e. he has also privilege to use the wooden staircase in question. 26. It emerges from record that there were two staircases; one of which is wooden staircase. The main dispute between the parties is qua this very wooden staircase. The plaintiff claims that he is entitled to use both these staircases i. e. he has also privilege to use the wooden staircase in question. It is not the say of the plaintiff that this wooden staircase was the only way to reach to his office located on the first floor i. e. the rented premises consisting of one room. It is found that the plaintiff has suppressed certain facts including the existence of one another staircase and the same is being used by him or it is possible to use the another staircase and he is not conferred with any exclusive right to use the wooden staircase in question and on the day on which the Suit came to be filed, it was possible to use both the staircases by the users of the premises on the first floor. In this fact situation, there was no scope to argue that the plaintiff is entitled to or otherwise enjoying any "easement right" in the eye of law as pleaded nor there is any curtailment in the tenancy right qua the premises rented to him i. e. one room on the first floor. It was possible, as observed by the lower courts, to use another staircase. It emerges that at one point of time, the learned counsel appearing for the plaintiff has tried to convince the lower Courts that as per his belief and faith in "vastu Shashtra", he would like to continue to use the wooden staircase in question. But in view of the development that had taken place qua the repairing and alteration in the entire building, the lower Courts have not given weightage to this submission; as such belief would not make or create any right in his favour; or a right attached with the tenancy right. ( 17 ) THE Appellate Bench while dealing with the Appeal from Order filed by the plaintiff confirmed the order passed below Exhs . 5 and 26. The appeal came to be dismissed on 28th April, 2000. But on that day by an order below Exh. ( 17 ) THE Appellate Bench while dealing with the Appeal from Order filed by the plaintiff confirmed the order passed below Exhs . 5 and 26. The appeal came to be dismissed on 28th April, 2000. But on that day by an order below Exh. 14, the Appellate Bench placed the operation of the order of dismissal of Appeal under suspension till 19th June, 2000, despite of objections by the learned counsel appearing for the defendant. On 19th june, 2000, the learned counsel appearing for the plaintiff again approached the Appellate Bench for extending the stay for one month stating that the plaintiff may take more time in getting the certified copies of the judgment and decree as the same had been applied; and it may take some time in studying the order passed by the Appellate Bench with a view to approach the higher forum. It is contended in the application that it is necessary to study the judgment to initiate proceedings before the High Court. This application was strongly objected by the learned counsel appearing for the defendant. The certified copy of this application exh. 16 is on record and the Appellate Bench was informed that the plaintiff has already received the certified copy of the judgment and decree and the plaintiff was supposed to prefer Revision Application before the High court and obtain necessary orders from the High Court. Even then the Appellate Bench extended stay till 26th june, 2000. So the order passed by the Appellate Bench dismissing the Appeal can be said to be placed under suspension for all legal and practical purposes till 26th june, 2000. The crucial submission made before this court by Mr. S. B. Vakil, learned counsel appearing for the defendant, is that the order of suspension passed by the Appellate Bench would not by itself revive the ex-parte injunction granted on 30th June, 1999. Even otherwise, the defendant was prevented from "cutting the passage" portion approaching the premises rented to the plaintiff from the south-west staircase side. As observed earlier and the findings recorded by both the lower Courts, the easternside staircase was very well renovated and the same was in a usable condition on the date of filing of the Suit. Even otherwise, the defendant was prevented from "cutting the passage" portion approaching the premises rented to the plaintiff from the south-west staircase side. As observed earlier and the findings recorded by both the lower Courts, the easternside staircase was very well renovated and the same was in a usable condition on the date of filing of the Suit. There was no relief specifically granted to the plaintiff qua the wooden staircase allegedly used mainly by the plaintiff and the plaintiff was granted a very limited relief and it was further restricted by the learned Judge. So the order of status quo granted was effectively operating qua water supply and electricity supply; and the defendant was not supposed to put any articles or useless things in the passage used by the plaintiff for reaching to the rented premises. Undisputedly, on 19th June, 2000, at two places the plaintiff had attempted to obtain interim prohibitory relief. It would not be appropriate at this stage to comment upon on the aspect as to whether the plaintiff was aware about filing of the Revision application in the High Court by the advocate engaged by him before 19th June, 2000, or not. The Revision application was listed before this Court undisputedly on 19th June, 2000. So technically, whether the plaintiff was entitled to have an order of extension of stay granted earlier, would be a question. But without touching this technical aspect, it can be inferred reasonably that the learned counsel appearing for the plaintiff in the lower Court was also not aware about the development that had taken place in the High Court i. e. within the city of Ahmedabad and though he was aware, had prayed for extension of stay of order from the Appellate bench, stating the facts which can be said to be not exact and / or true. As no interim relief was granted by the Appellate Bench, for some days there was no prohibitory order against the defendant. So the defendant had rightly restrained themselves in putting other work of alteration and repairing till 27th June, 2000, respecting the order passed by the Appellate Bench. It emerges from record that the work of removal of wooden staircase had taken shape on 28th June, 2000. Of course according to Mr. Shah, this has been done on receipt of communication of the order of status quo granted by this court. It emerges from record that the work of removal of wooden staircase had taken shape on 28th June, 2000. Of course according to Mr. Shah, this has been done on receipt of communication of the order of status quo granted by this court. It is not a matter of dispute that the defendant was not served with the process of this Court till 29th june, 2000 and on 3rd July, 2000, on the first day of hearing, the defendant has clarified his position and the development that had taken place in the period in between. It is clearly averred that the process of removal of Suit-staircase had commenced on 28th June, 2000 at about 02-00 p. m. and during working hours of the plaintiffs office. It is also neither averred nor proved by filing affidavit or producing documents that either the defendant or the persons engaged in work or removal of Suit-staircase were told specifically to refrain from work undertaken; at least a telegram could have been made but it seems that probably the plaintiff was also not aware about the order passed by the High court or the fact at least that the defendant is not served with the process. On 3rd July, 2000, the defendant has placed his cards open and on plain reading of the document, it seems that no game of hide and seek has been played quo removal of the Suit-staircase. It also emerges from documents that even the plaintiff indirectly attempts that the Suit-staircase was removed on issuance of process on 28th June, 2000. There was serious controversy as to why despatch of intimation of order of status quo granted by this Court and this can be resolved by leading evidence. If the staircase is removed even in part on 28th June, 2000, the gap coming to that staircase from the first floor by way of abandoned caution, it must have been the necessity to close that gap; even otherwise it may lead to a serious accident. If the staircase is removed even in part on 28th June, 2000, the gap coming to that staircase from the first floor by way of abandoned caution, it must have been the necessity to close that gap; even otherwise it may lead to a serious accident. ( 18 ) IT is easy to infer prima facie that there is no element of deliberate disobedience; otherwise the suit-staircase would have been removed in absence of any formal stay by the Appellate Bench because on institution of the Appeal, the stay granted or even extended by the lower Court would not remain effective and respecting the orders passed by the Appellate Bench, nothing was done by the defendant till 27th June, 2000 and the order passed by the Appellate Bench below Application Exh. 16 has been obeyed. When the process was not served till 29th June, 2000, whether activity undertaken by the defendant on 28th June, 2000, at about 02-00 p. m. i. e. during working hours can be said to be an activity undertaken surreptitiously and to put the plaintiff in a helpless condition is the question, which needs answer and it is possible in view of facts and circumstances emerging from record that the same can be answered at the termination of the trial and on the strength of the evidence that may be led by the parties. ( 19 ) IT is difficult for this Court to say that any punishable wrong within the meaning of Order 39 Rule 2 (A) of the Code has been committed by the defendant. Ultimately, the defendant had succeeded in two courts and the plaintiff has been branded as a litigant who has suppressed some facts and also the litigant who has not approached this Court with clean hands. So for some days, it was possible for the defendant to wait and to see that the order is appropriately modified or vacated by this Court. The Court is not in agreement with the submission of Mr. Shah, learned counsel appearing for the plaintiff, that the defendant had attempted to overreach the process of the Court because though there was scope to circumvent, placing technicalities ahead, the defendant had not done it. The Court is not in agreement with the submission of Mr. Shah, learned counsel appearing for the plaintiff, that the defendant had attempted to overreach the process of the Court because though there was scope to circumvent, placing technicalities ahead, the defendant had not done it. The phraseology "overreaching the process" has been used and interpreted by various courts in ennumber of decisions but the findings in most of the cases have been recorded on available concrete facts and mainly in the cases that had reached the stage of ultimate conclusion. So that a wrongdoer cannot take an advantageous position or a favourable situation for ever or the ends of justice may not feel frustrated. The word "overreach" is relevant in interpreting the phrase "overreaching the process". As per the Blacks dictionary ( Seventh Edition: pg. 1129), "overreaching" means : (i) the act or an instance of taking unfair commercial advantage of another especially by fraudulent means; (ii) the act or an instance of defeating ones own purpose by going too far. The second meaning according to me would be relevant because the defendant of the present case is a litigant who had completed the repairing of another staircase, which according to the plaintiff is being used by him and his staff members and also the persons visiting his office premises. The entire building is being used for business purpose. As discussed hereinabove, the defendant has tried to respect the orders passed by both the lower Courts including the order passed below Exh. 16 and the order of this Court was not served till 29th June, 2000. The activity of removal of Suit-staircase had commenced on 28th June, 2000, and that too during working hours at about 02-00 p. m. , which might have been completed in the early hours on 29th june, 2000. But will be very early for this Court to record a final finding that in view of bills prepared by the agency which had undertaken work of removal of suit-staircase that the same was removed after service of process or after receipt of communication of the orders of status quo passed by this Court. Unless the Court is able to record that the defendant has attempted to go too far and that too with a view to defeat ones own purpose, he cannot be said to be a circumventor. Unless the Court is able to record that the defendant has attempted to go too far and that too with a view to defeat ones own purpose, he cannot be said to be a circumventor. As such, there was specific prohibitory order as to removal of suit-staircase is also an aspect which cannot be ignored at this stage. The plaintiff can still amend the plaint and pray for mandatory injunction as to restoration of the original position on the date of the Suit and the defendant can be directed not to put any permanent structure in the part where the Suit-staircase was existing till appropriate further orders are passed by the lower Court. In absence of very exceptional circumstances, it would be either justice or legal to pass an order of mandatory nature directing the defendant to restore the position prevailing on 19th June, 2000. I would like to quote relevant part of one of the decisions cited by Mr. S. B. Vakil in the case of M/s. Shree chamundi Mopeds Ltd. v. Church of South India Trust association, Madras, reported in AIR 1992 SC 1439 (Re. para:10), which is as under :"10. IN the instant case the proceedings before the Board under Ss. 15 and 16 of the Act had been terminated by order of the Board dated april 26, 1990 whereby the Board, upon consideration of the facts and material before it, found that the appellant-company had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-company under S. 25 of the Act against said order of the Board was dismissed by the appellate Authority by order dated January 7, 1991. As a result of these orders, no proceedings under the Act was pending either before the Board or before the Appellate authority on February 21, 1991 when the Delhi high Court passed the interim order staying the operation of the Appellate Authority dated january 7, 1991. The said stay order of the High court cannot have the effect of reviving the proceedings which had been disposed of by the appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the appellate Authority would be restored and it can be said to be pending before the Appellate authority after the quashing of the order of the appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because inspite of the said order, the order of the appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated january 7, 1991 and it cannot be said that after february 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned single Judge of the karnataka High Court for winding up of the company or on November 6, 1991 when the Division bench passed the order dismissing O. S. A. No. 16 of 1991 filed by the appellant company against the order of the learned single Judge dated august 14, 1991. Section 22 (1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant company. The said appeal, therefore, fails and is liable to be dismissed. " ( 20 ) IN view of this set of facts and circumstances, the ratio of the decisions cited by Mr. Shah is not found helpful to the plaintiff. It is also important that even restoration of the situation on 19th June, 2000, has been prayed at a belated stage and that too in the month of january, 2005. It is true that if the Court is of the view that its order has been deliberately violated the status-quo-ante can be ordered by the Court and there is no doubt as to entitlement of the Court to pass such orders; especially when the Revision Application has been converted into a substantive petition, this Court can direct the parties to act in a particular manner to see that the ends of justice prevail; but in the present case, no such necessity is emerging from record. A party who has lost on facts in two lower Courts whether should be granted a relief of his desire on such technical aspects and that too on seriously disputed facts is also a question and the answer according to me obviously is in the negative. ( 21 ) IN view of above observations, both, the Civil application and Special Civil Application are hereby dismissed. ( 21 ) IN view of above observations, both, the Civil application and Special Civil Application are hereby dismissed. When the main proceedings were initiated as civil Revision Application, the plaintiff was granted interim relief and the Court is told that the parties have maintained status quo in the intervening period i. e. after conversion of the Revision Application into Special civil Application. In view of some of the observations made by this Court in this judgment, the defendant shall maintain status quo for the area where the Suit-staircase was existing. However, this may not come in the way of the defendant to put area in a descent or better look as the entire building is used as a commercial premises. In view of above direction, the interim relief is vacated. Notice is discharged. .