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2013 DIGILAW 69 (JK)

Amlok Singh & Anr. v. Madan Lal

2013-02-04

MANSOOR AHMAD MIR

body2013
1. Through the medium of instant Revision Petition, the challenge is thrown to the order dated 02-09-2009 (hereinafter referred to as the impugned order) passed by the learned Sub-Judge, Jammu in suit titled 'Madan Lal v. Mulkh Singh & ors.' whereunder Status-Quo Ante has been granted and Tehsildar (Executive Magistrate, Jammu) was commanded to implement the order dated 22.11.2005 which has attained finality and to demolish the obstruction/construction raised by the non-applicants (petitioners herein) leading to residential house of the plaintiff/respondent and the pathway having dimension of 70 ft. x 6 ft. be restored as existed on 22.11.2005. 2. Brief facts; Plain tiff/respondent namely Madan Lal resident of Mishriwala, Tehsil and District Jammu filed a Suit under Specific Performance Act for easementary rights and injunction on the ground that defendants (petitioners herein) be restained from blocking/encroaching upon the pathway of plaintiff/respondent which existed to his house and connected to the Main Road Mishriwala-Jhiri falling under Khasra Nos. 1196 and 1196/1 situated at Mishriwala Patwar Halqa Bhalwal, Tehsil & Distt. Jammu. Alongside the Suit, an application for temporary injunction was also made and the learned trial Court after hearing learned counsel for the plaintiff, vide its order dated 22.11.2005, subject to objections from the other side, directed the defendants/petitioners not to block the pathway of the plaintiff. It appears that defendant No. 2 appeared in person on 29-11-2005 and contested the suit. Thereafter despite service, she had chosen to remain absent and, accordingly, ex-parte proceedings were drawn against both of the defendants vide order 21.11.2006 and plaintiff was directed to lead evidence and interim direction granted was made absolute vide order dated 08-03-2007. 3. It is evident from the record that the defendants have not questioned the said order dated 08-03-2007 till today and has attained finality. However, defen-dant-2 had moved an application for setting aside the ex-parte proceedings drawn in the main Suit. Ex-parte proceedings drawn against defendant No. 2 were set aside vide order dated 26.4.2007 by the learned trial Court. 4. Plain tiff/respondent herein laid a motion before the learned trial Court under Order-39 Rules-1 & 2 read with Section 151 CPC with the allegations that the defendants have during the pendency of main Suit and in breach of order passed by the learned trial Court on 22-11-2005 read with order dated 08.03.2007 blocked the pathway of the plaintiff/respondent by raising construction. 5. 5. The trial Court examined the report of the Naib-Tehsildar who has reported that the defendant-Amlok Singh have violated the Court direction and blocked the Pathway of the plaintiff/respondent which is the only approach/access to the plaintiff from his house to the main Road and plaintiff in order to approach the public road has to walk on the roof of the house(s) of neighbour and for doing so, he has to take the help of ladder. The trial Court vide impugned order dated 02-09-2009 granted Status-Quo Ante and directed the Revenue agency (Tehsildar) to demolish the construction raised by the defendants and to restore the pathway. 6. The moot question for consideration by this Court is as to whether the impugned order is legal or otherwise, and also whether the learned trial Court has powers to grant Status-Quo Ante by way of interim relief restoring the Pathway of the plaintiff as it existed on 22.11.2005. The answer is in affirmative for the following reasons; 7. It is the duty of all the Courts to see that the orders passed by the Courts are implemented in letter and spirit and any person who commits breach or acts in violation of the Court orders is to be dealt with sternly and the position which was existing on the date of issuance of interim direction is to be restored. 8. In the instant case, admittedly the defendants/petitioners were restrained temporarily from blocking the Pathway of plaintiff. But despite, clear cut restraint order, it appears that defendants have willfully violated the Court direction and stopped the Pathway of the plaintiff/respondent by raising construction. 9. Keeping in view the order dated 22.11.2005 which has attained finality, the report submitted by the Naib-Tehsildar, proceedings drawn under Section 133 Cr.P.C and the fact that the defendants had also filed the suit restraining the Revenue agency (Tehsildar) from proceeding in terms of Section 133 Cr.P.C, which stands dismissed, the trial Court had no option, but to pass the impugned order. 10. The Hon'ble Apex Court in the case reported as 'M/s. Joy Auto Works and Ors. v. Sumer Builders (P) Ltd. and Anr/, 2009 AIR SCW 3462, paras-27,28 and 29 whereof are relevant. For facility of reference, it is apt to reproduce these paras as under:- "27. 10. The Hon'ble Apex Court in the case reported as 'M/s. Joy Auto Works and Ors. v. Sumer Builders (P) Ltd. and Anr/, 2009 AIR SCW 3462, paras-27,28 and 29 whereof are relevant. For facility of reference, it is apt to reproduce these paras as under:- "27. It would not be appropriate on our part to make any observation on the merits of the case of the parties since the same is yet to be decided. We are only required to ensure the balance of convenience and inconvenience and the equities between the parties at this stage. We are also required to consider if any of the parties will suffer irreparable loss and injury unless an interim order, as prayed for by the appellants, is allowed or denied. This is not one of those cases where the appellants may be suitably compensated by damages in case their suit succeeds. 28. Having considered the submissions advanced on behalf of the respective parties, including that of the Bombay Municipal Corporation, we are of the view that ad- interim protection, as prayed for by the appellants, should be given in the facts and circumstances of the case. 29. We, therefore, direct that the appellants/plaintiffs will be entitled to a motorable access from the main road to Plot No. 878 through Plot No. 879 and the portion of Plot No. 879 in their possession either till the disposal of the suit or till the construction of the 40 feet wide D.P. Road running adjacent to Final Plot No. 878 by the Bombay Municipal Corporation in terms of the assurance given by it on 7th August, 1984, in Writ Petition No. 1667 of 1984 and also in terms of the directions given in Writ Petition No. 2443 of 2006 filed by the Respondent No. 1 before the Bombay High Court, whichever is earlier. However, once the said 40 feet wide D.P. Road is constructed by the Bombay Municipal Corporation, giving clear motorable access to Plot No. 878, the Respondent No. 1 should no longer be deprived of the full enjoyment of its property and will be entitled to move the Trial Court to get the right of way through Plot No. 879 granted by this order revoked and this order will not stand in the way of such an order being passed by the Trial Court, if it is satisfied that sufficient motorable access is available to the appellants on account of construction of the 40 feet wide D.P. Road. We also make it clear that the right of motorable access to Plot No. 878 through Plot No. 879 granted by this order to the appellants will not preclude the Bombay Municipal Corporation from taking any action as it may be entitled to under the 1966 Act or other relevant enactments in relation to the Town Planning Scheme No. IV, Mahim. Furthermore, subject to any order to the contrary that may have been passed in any other proceeding, the Bombay Municipal Corporation must implement the assurance given by it on 7th August, 1984, when the Writ Petition No. 1667 of 1984 was permitted to be withdrawn, regarding construction of the 40 feet wide D.P. Road adjacent to Final Plot No. 878, with utmost expedition". 11. By applying the test of aforesasid judgments to this case, it is found that the learned Trial Court has rightly passed the impugned order. It is the duty of all the Courts to pass effective orders and to punish the person who is in breach or violates the Court direction. The Courts have wide powers to pass a direction(s) in order to do justice. 12. Now the question is as to whether the learned trial Court has powers to direct demolition of the encroachment/construction raised in violation of Court order by the defendants. The Hon'ble Apex Court in case reported as 'Jaskirat Datwani v. Vidyavati and others', AIR 2002 SC 2180 , held that Courts are within their powers to pass interim directions in Mandatory form and do justice. It is apt to reproduce, whatever held in para-12 below:- “In our view, Mr. Mishra is right. The Hon'ble Apex Court in case reported as 'Jaskirat Datwani v. Vidyavati and others', AIR 2002 SC 2180 , held that Courts are within their powers to pass interim directions in Mandatory form and do justice. It is apt to reproduce, whatever held in para-12 below:- “In our view, Mr. Mishra is right. If a wall is constructed as directed then the Appellant's access to the garage and the servant quarters gets completely blocked. At the same time, pending the final hearing of the suit, Respondents 1 to 6 cannot be dispossessed from the annexe. They must also be given access to the annexe building through the main gate of the property. In our view the walls/jallis constructed around the annexe (at points A to C and B to Gate D) block light and air and prevent ingress and egress to the annexe. The right to use the annexe necessarily means that there must be reasonable space, say 5 feet, available all around the annexe. We, therefore direct that the Appellant and Respondents 7 to 9 shall permit access to the Respondents 1 to 6 and/or their guest through the main gate of the property. The Appellant shall forthwith remove the existing wall/jallis at points AtoC and B to Gate D on the plan annexed to the Order. The Gate D shall also be removed. The Appellant shall ensure that Respondents 1 to 6 have a space of at least 5 ft all around the annexe. That access should be such that it would provide access to the water coolers and to the gate marked "N". The Appellant and Respondents 7 to 9 shall not put up any gate or wall or Jalli within the said passage and not prevent light or air to the annexe by planting any trees or in any other manner. It is, however, clarified that apart from the use of the said passage Respondents 1 to 6 shall not be entitled to use any further or other areas. Thus Respondents 1 to 6 shall not use the lawn in front of the annexe. Respondents 1 to 6 would be permitted to park one car inside the compound next to the annexe. However, cars of the guests will have to be parked outside". 13. In the given circumstances, it is held that the impugned order is legal one and needs no interference. Respondents 1 to 6 would be permitted to park one car inside the compound next to the annexe. However, cars of the guests will have to be parked outside". 13. In the given circumstances, it is held that the impugned order is legal one and needs no interference. Accordingly, revision petition is dismissed alongwith connected CMA(s).