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Madhya Pradesh High Court · body

2015 DIGILAW 343 (MP)

Rajendra Prasad Kushwah v. Dalchand Kushwah

2015-03-25

SUJOY PAUL

body2015
ORDER 1. Since these matters are arising out of common order passed in Miscellaneous Civil Appeal No.3/2014, dated 16.4.2014, these petitions were analogously heard on the joint request and decided by this common order. Writ Petition No.5756/2014 is filed by the plaintiff / petitioner against the order dated 16.4.2014. The defendant is also aggrieved by certain portion of this order and filed Writ Petition No.3442/2014. 2. Brief facts necessary for adjudication of these matters are as under :- The plaintiff filed a suit for easementary right declaration and injunction on 26.8.2013. The written statement was filed on 2.9.2013. The defendant asked for permission of construction from Municipal Corporation which was granted on 22.8.2013. As per clause-2 of the said permission, prior to construction intimation is required to be given to the Municipal Corporation. It is contended that no information is given to the Nagar Nigam. The suit was accompanied with an application under Order 39 rules 1 and 2 CPC. Since adjudication of said application was consuming time, another application under section 151 CPC was filed. The said application was decided by order dated 28.10.2013 by the Court below (Annexure P-8) in Writ Petition No.5756/2014). The said order was continued by order dated 29.11.2013. The defendants were restrained from making any construction in the West and North side of plaintiff's house. It is relevant to mention here that before adjudication of application under Order 39 rules 1 and 2 CPC, the plaintiff amended his application preferred under Order 39 rules 1 and 2 and added para 8(a). It is contended in the said para that by taking benefit of Court's vacation, defendant has made certain illegal construction and window and “Moree” of the plaintiff's are illegally closed. 3. Shri Manoj Gupta, Advocate for the plaintiff, strenuously contended that the defendant did not deny the averments of amended para 8(a). The trial Court by order dated 29.11.2013 rejected the application of plaintiff under Order 9 rule 1 and 2. Plaintiff filed the miscellaneous appeal which was decided by order dated 16.4.2014. This order is assailed by both the parties. The grievance of the plaintiff/petitioner is that his specific prayer made by way of amendment in injunction application has not been dealt with and status quo which was prevailing at the time of filing of suit should have been maintained. Plaintiff filed the miscellaneous appeal which was decided by order dated 16.4.2014. This order is assailed by both the parties. The grievance of the plaintiff/petitioner is that his specific prayer made by way of amendment in injunction application has not been dealt with and status quo which was prevailing at the time of filing of suit should have been maintained. Despite specific finding in para 8 of the appellate order, the said Court erred in not restoring his position. 4. Per contra, the stand of Shri Saresh Sharma, Advocate for the defendant/respondent, is that the appellate Court has granted the relief which was not even prayed for. Injunction could have been granted only on the portion which was in dispute. The appellate Court has erred in granting injunction against the entire property. 5. I have heard learned counsel for the parties and perused the record. 6. Learned counsel for the defendant is unable to show any reply to the amended portion of the said application. Appellate Court in para 8 of its order gave a specific finding that prima facie it appears that the window of plaintiff is closed down. However, the appellate Court raised doubt about duration/period during which such alleged construction was made which resulted into closing down of window. The bone of contention of the plaintiff is that when the specific pleadings in the injunction application are not denied, there was no occasion for the Court below to raise doubt about the duration of said construction which resulting into closing of window and “Moree”. 7. I find force in the argument of Shri Manoj Gupta, Advocate for the plaintiff that the appellate Court has not dealt with the specific pleadings of the plaintiff which were inserted by way of amendment. The said pleadings were material to determine the said aspect. There is a clear non-application of mind on the part of the Court below in not considering the relevant material. Thus, to this extent the finding of Court below is perverse in nature. 8. In this view of the matter, I deem it proper to set aside the order dated 16.4.2014 and to direct the Court below to rehear the parties on said application and pass fresh order in accordance with law. It is made clear that this Court has not expressed any view on the merits of the case. 8. In this view of the matter, I deem it proper to set aside the order dated 16.4.2014 and to direct the Court below to rehear the parties on said application and pass fresh order in accordance with law. It is made clear that this Court has not expressed any view on the merits of the case. Parties are free to put forth their stand in accordance with law. Till decision by the appellate Court, the parties shall maintain status quo which is prevailing today. It is expected that Court below will hear and decide the appeal expeditiously, preferably within three weeks. 9. Impugned order is set aside. Petitions are partly allowed. No costs. .