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2013 DIGILAW 1066 (RAJ)

Rafique v. Bismillah

2013-05-23

ARUN BHANSALI

body2013
JUDGMENT 1. - With the consent of the learned counsel for the parties the appeal has been heard finally. 2. This appeal is directed against the order dated 1.12.2011 passed by the trial court, whereby application under Order 39, Rule 1 and 2 Civil Procedure Code filed by the plaintiffs - Bismillah & Anr. has been accepted and the respondents-plaintiffs have been directed to maintain status quo regarding the suit property during the pendency of the suit and the plaintiffs have also been directed to maintain status quo. 3. It is submitted by learned counsel for the appellant that the appellant-defendant while filing his reply to the application under Order 39, Rule 1 and 2 Civil Procedure Code had also filed a counter claim, inter alia with the averments that he has demolished a portion of the suit property and has raised new construction till roof level and, therefore, the plaintiffs be directed not to raise any obstruction in the said construction. The averments regarding irreparable injury and balance of convenience in the said counter claim were also made, however, the learned trial court while deciding the application has not averted to the said application and only on coming to the conclusion that the plaintiffs have a prima facie case directed the parties to maintain status quo. 4. Along with the appeal, an application seeking interim relief has been filed, wherein the appellant has prayed that he may be permitted to construct the toilet and bath-room in his portion and also to complete the construction work, which has already been constructed upto roof level. 5. On direction of this Court on 20.5.2013, the appellant has filed an additional affidavit indicating the portion on map enclosed with the affidavit and marked 'A B C D' - the portion under a stair case where the appellant wants to construct the toilet and bath-room. It is submitted by learned counsel for the appellant that in absence of the toilet and bath-room, the adult members of the family are suffering great hardship and inconvenience, inasmuch as, they are required to go out of the house for the purpose of using the toilet and bath-room. 6. It is submitted by learned counsel for the appellant that in absence of the toilet and bath-room, the adult members of the family are suffering great hardship and inconvenience, inasmuch as, they are required to go out of the house for the purpose of using the toilet and bath-room. 6. The averments and submissions made in this regard are opposed by learned counsel for the respondents and it is submitted that the application was rejected way-back on 1.12.2011 and the appeal was filed belated and now an application seeking preponement of date has been made. Further the averments made in stay application alongwith the appeal, which was filed way-back on 17.8.2012 are also sought to be pressed now only which indicates that in fact, the appellant is not suffering any inconvenience as alleged, otherwise he would have immediately rushed to this Court. It is further submitted that the appellant, in fact, has a toilet and bath-room, which is just outside the house and it is incorrect to say that no such facility exists. 7. Admittedly, the parties are related to each other and even as per the respondents' own submission the appellant is using a toilet and bath-room, which is 'just outside the house'. Every one is entitled to live with dignity and to use a toilet and bathroom within the privacy of one's own home, which is an essential part of living with dignity. 8. The trial court has failed to consider the counter claim filed by the appellant and even if, a prima-facie case has been found in favour of the plaintiffs, still the aspect of balance of convenience and irreparable injury to the appellant also in terms of his application was required to be considered by the trial court while deciding the application and granting status quo, which it has failed to do. 9. In the facts and circumstances of the case, it is deem just and proper to permit the appellant to construct the toilet and bath-room as indicated in the map filed alongwith additional affidavit and marked as 'A B C D' in the said map just under the stair case. For the purpose of completing the roof of the said toilet or bath-room, if few stairs are more required to be placed, the appellant would be free to do that. For the purpose of completing the roof of the said toilet or bath-room, if few stairs are more required to be placed, the appellant would be free to do that. However, the appellant is restrained from raising any further construction beyond creating / constructed a toilet as well as bath-room as indicated in the map filed along with additional affidavit. 10. In that view of the matter, the order passed by the trial court dated 1.12.2011 is modified to the above extent regarding construction of toilet and bath-room as indicated hereinbefore. The parties as directed by the trial court shall thereafter maintain status quo regarding the suit property during the pendency of the suit. 11. The trial court may expedite the hearing of the suit and may try to decide the same as early as possible. 12. The appeal as well as the stay application stands disposed of.Order accordingly. *******