JUDGMENT : Sureshwar Thakur, J. 1. The instant Regular Second Appeal stands directed by the plaintiff/appellant against the impugned rendition of the learned Additional District Judge, Mandi camp at Karsog whereby he accepted the appeal of the defendant/respondent herein and also reversed the decree of mandatory injunction rendered by the learned Civil Judge (Senior Division), Karsog), District Mandi, H.P., whereby the latter Court directed the defendant to erect a boundary wall adjoining the land of the plaintiff. The plaintiff/appellant herein stands aggrieved by the judgment and decree of the learned Additional District Judge, Mandi, camp at Karsog. His standing aggrieved, he has therefrom preferred the instant appeal before this Court for seeking from this Court an order reversing the findings recorded therein. 2. Briefly stated the facts of the case are that the plaintiff is owner in possession of land comprising Khata Khatauni No.111 min/175, khasra No.21, measuring 0-3-0 bighas situated in Mohal Nagroan, Tehsil Karsog, District Mandi, H.P. (hereinafter referred to as the “suit land”). The house of the parties and other persons are situtated in the adjoining abadideh land comprising Khata/Khatauni No.135 min/220 min, Khasra No.19, measuring 0-9-8 bgihas situated in Mohal Nagroan/198. The aforesaid abadideh land bearing khasra No.19 is about 7ft. below the suit land of the plaintiff bearing khasra No.21. The defendant had constructed his house over a portion of Abadideh land bearing Khasra No.19. While raising construction, the defendant encroached upon 3 ft., area out of the suit land. The defendant had proposed to raise additional construction over abadideh land as well as on the suit land of the plaintiff. The proposed construction of the defendant was likely to erode the suit land of the plaintiff by erosion and thus, danger of land sliding of boundary wall of the plaintiff land was caused. Hence the suit. 3. The defendant contested the suit and filed the written statement, wherein preliminary objections have been raised qua resjudicata, estopple and maintainability. On merits, it was alleged that the defendant has not encroached upon the suit land. The defendant had constructed his new house on his own land bearing khasra No.19 about eight years back after dismantling the old house. The construction of the house was complete in the year 2003. The plaintiff had previously filed a similar civil suit against the defendant which was dismissed on 19.8.2003. The defendant had constructed his new house on his own land bearing khasra No.19 about eight years back after dismantling the old house. The construction of the house was complete in the year 2003. The plaintiff had previously filed a similar civil suit against the defendant which was dismissed on 19.8.2003. In nutshell, the defendant refuted the entire case of the plaintiff and he prayed for dismissal of the suit. 4. The plaintiff/appellant herein filed replication to the written statement of the defendant/respondent, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed? OPP. 2. Whether the suit is barred by resjudicata? OPD 3. Whether the plaintiff is estopped by his own act, conduct and deeds from filing the suit? OPD 4. Whether the suit is not maintainable? OPD 5. Whether the defendant has raised the construction on their own land and plaintiff has no cause of action? OPD 6. Relief. 6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court rendered a decree for mandatory injunction upon the defendant/respondent. In an appeal, preferred therefrom by the defendant/respondent herein, the learned first Appellate Court allowed the appeal. 7. Now the plaintiff/appellant has instituted the instant Regular Second Appeal before this Court assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 24.05.2007, this Court, admitted the appeal against the judgment and decree, rendered by the learned First Appellate Court as instituted by the plaintiff/appellant, on the hereinafter extracted substantial questions of law:- 1. Whether there has been misreading of evidence by the learned first appellate court particularly in regard to documents Ex.PW5/A and Ex.PW5/D? 2. Whether the learned first appellate court has misconstrued the pleadings of the parties and granted the relief wrongly? Substantial questions of Law No.1and 2: 8. The plaintiff had instituted a suit against the defendant praying therein for a relief of permanent prohibitory injunction besides had canvassed therein the relief of mandatory injunction. 2. Whether the learned first appellate court has misconstrued the pleadings of the parties and granted the relief wrongly? Substantial questions of Law No.1and 2: 8. The plaintiff had instituted a suit against the defendant praying therein for a relief of permanent prohibitory injunction besides had canvassed therein the relief of mandatory injunction. In the relevant paragraph No.3 of the plaint, the plaintiff has averred of the defendant while holding construction upon land owned and possessed by him, his encroaching upon a portion of land owned and possessed by the plaintiff comprised in khasra No.21. He also averred therein of in the defendant succeeding to erect pillars over khasra No.21, his land would suffer erosion besides his boundary wall would collapse with a sequeling effect of his land suffering erosion. Apparently, the plaintiff had not claimed in his suit qua a decree of mandatory injunction being rendered in his favour, decree whereof stood accorded by the learned trial Court. So far as the factum of encroachment at the instance of the defendant upon land comprised in khasra No.21 is concerned, land borne whereon uncontrovertedly stands owned and possessed by the plaintiff, the demarcation report comprised in Ex.PW5/A accompanied by tatima, Ex.PW5/B, holds no apposite reflections therein in portrayal of the defendant while holding construction upon land exclusively owned and possessed by him, his proceeding to encroach upon land comprised in khasra No.21, land borne whereon uncontrovertedly stands exclusively owned and possessed by the plaintiff. In sequel, with the defendant not subjecting to construction any portion of land borne on khasra No.21, land borne whereon stands exclusively owned and possessed by the plaintiff, the prayer made by the plaintiff qua the defendant being restrained from erecting pillars thereon was not amenable to its standing accorded. Consequently, the concurrently recorded renditions of both the learned Courts below of the plaintiff standing not entitled for any relief of permanent prohibitory injunction for restraining the defendant to hold construction upon his land given his purportedly subjecting to construction a portion of the land owned and possessed by the plaintiff, does not merit any interference. 9. Consequently, the concurrently recorded renditions of both the learned Courts below of the plaintiff standing not entitled for any relief of permanent prohibitory injunction for restraining the defendant to hold construction upon his land given his purportedly subjecting to construction a portion of the land owned and possessed by the plaintiff, does not merit any interference. 9. The learned counsel appearing for the plaintiff contended with vigour of the relief of mandatory injunction as stood accorded in favour of the plaintiff by the learned trial Court, inasmuch as its enjoning the defendant to raise a boundary wall in the manner as reflected in the operative portion of the judgment and decree rendered by the learned Civil Judge (Senior Division), Karsog was not amenable to its standing reversed by the learned first Appellate Court. He contends of the rendition of the learned First Appellate Court while reversing the judgment and decree of the learned Civil Judge (Senior Division), Karsog whereby it had afforded to him a relief of mandatory injunction, inasmuch as of the defendant standing mandated to erect a retaining wall to the extent of 26 feet in length and 8 feet in height to protect the land of the plaintiff, stands not anvilled upon a proper appreciation of the manifestations occurring in Ex.PW5/A, manifestations whereof display of the defendant while subjecting to construction land exclusively owned and possessed by him, his excavating a trench holding a depth of 8 feet also its embodying the factum of a boundary wall holding a depth of eight feet existing on the borders of the contiguously located lands of the parties at lis facing the threat of its standing dismantled. He contends of the aforesaid reflections when palpably unveil the factum of hence imminent endangerment ensuing to the land of the plaintiff located above the land of the defendant, the learned trial Court while revering the apposite manifestations occurring therein had tenably proceeded to afford a relief of mandatory injunction in favour of the plaintiff. He also contends of despite the plaintiff not in conformity with the decree of mandatory injunction accorded in his favour by the learned trial Court making a prayer qua it in his plaint yet with the apposite unfoldments occurring in Ex.PW5/A of imminent endangerments ensuing to the land of the plaintiff arising from construction activity carried by the defendant on the land owned and possessed by him. for obviation whereof besides for protecting the land of the plaintiff occurring above the land of the defendant, the factum aforesaid when remained non existent at the time of the institution of the suit rather came into existence during the pendency of the suit, necessarily it was tenable for the learned trial Court to thereupon despite the apposite relief of mandatory injunction not standing asked for by the plaintiff in the plaint to mould the relief to bring it in concurrence with the manifestations in Ex.PW5/A. The learned counsel appearing the plaintiff places reliance upon a decision of the Hon'ble Apex Court reported in Pasupuleti Venkateswarlu versus The Motor & General Traders, (1975) 1 SCC 770 , the relevant paragraph No.4 whereof stands extracted hereinafter:- “4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into S. 10 (3) (iii) itself. We are not disposed to disturb this approach in law or finding of fact.” (pp.772) 10. The learned counsel appearing for the plaintiff also places reliance upon another decision of the Hon'ble Apex Court reported in Om Prakash Gupta versus Ranbir B. Goyal, (2002) 2 SCC 256 , the relevant paragraphs No.11 and 12 whereof stand extracted hereinafter:- “11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take a note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied : (i) that the relief as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. The Motor and General Traders, AIR 1975 SC 1409 , this Court held that a fact arising after the lis, coming to the notice of the Court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the Court cannot be blinked at. The Court may in such cases bend the rules of procedure if no specific provision of law or rule of fair-play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that Court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned : (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautions, and (iv) the rules of fairness to both sides should be scrupulously obeyed. 12. Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6, Rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Messrs. Trojan and Co. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Messrs. Trojan and Co. v. R.M.N.N. Nagappa Chettiar, AIR 1953 SC 235 , this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao v. Sita Ram Kesho and others, (1898) 25 Indian Appeals 195 (PC), their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted.” (pp. 262-263) 11. However, both the decisions as relied upon by the learned counsel appearing for the plaintiff to bring this Court in agreement with his submission of despite the apposite relief of mandatory injunction which stood afforded to him by the learned trial Court, not standing asked for by the plaintiff in his plaint, yet the defendant not subjecting PW-5 to cross-examination qua the relevant embodiments occurring in Ex.PW5/A of imminent endangerment ensuing to the land of the plaintiff spurring from the act of the defendant excavating his land occurring beneath the land of the plaintiff upto a depth of eight feet, excavation whereof would imminently erode the land of the plaintiff, wherefrom the learned counsel for the plaintiff canvasses of hence the defendant acquiescing to the manifestations in Ex.PW5/A also he thereupon erects a submission of the defendant not standing taken by surprise rather it was apt for the learned trial Court to for obviating endangerment ensuing to the land of the plaintiff to mould relief vis-a-vis the plaintiff in the manner occurring in its pronouncement. However, both the decisions of the Hon'ble Apex Court which stand relied upon by the learned counsel appearing for the plaintiff though expostulate the trite proposition of law of Courts of law holding empowerment to mould relief given the occurrence of events subsequent to the institution of a suit. However, both the decisions of the Hon'ble Apex Court which stand relied upon by the learned counsel appearing for the plaintiff though expostulate the trite proposition of law of Courts of law holding empowerment to mould relief given the occurrence of events subsequent to the institution of a suit. However, in both the verdicts of the Hon'ble Apex Court, the power of the court to in concurrence with subsequent events mould relief stands mandated therein to be not a plenary power rather it being subjected to imposition thereon of statutory fetters enjoined in the procedural laws. In the verdict of the Hon'ble Apex Court reported in Pasupuleti Venkateswarlu's case (supra) it has been with specificity pronounced therein of any statutory deterrent factors impeding the Court concerned wherebefore an event subsequent to the institution of the plaint/suit occurs to afford relief in tandem thereof also concomitantly baulk it from moulding relief to bring it in concurrence with supervening events. Also in the judgment of the Hon'ble Apex Court reported in Om Prakash Gupta's case (Supra) a similar principle stands encapsulated therein of the Court concerned though holding jurisdictional vigour to take notice of supervening events vis-a-vis institution of the suit, especially when the event subsequent to the institution of the suit displays of variance in law occurring subsequent to the institution of the suit whereupon the Court concerned would proceed to mould relief to bring its verdict inconformity with the subsequent occurrence of a change in law vis-a-vis the institution of the plaint uptill the pronouncement of the verdict by the court concerned. Imperatively, hence, even though occurrence of any variation/change in law since the institution of the suit uptill the rendition of a verdict upon the apposite lis by the court concerned is the relevant subsequent event which solitarily is to be borne in mind by the court concerned. Also it is the solitary subsequent event since the institution of a suit uptill the rendition of a verdict thereupon by the Court concerned which is enjoined to be borne in mind by it for its according relief in tandem therewith besides empowers it to mould relief in concurrence therewith. Also it is the solitary subsequent event since the institution of a suit uptill the rendition of a verdict thereupon by the Court concerned which is enjoined to be borne in mind by it for its according relief in tandem therewith besides empowers it to mould relief in concurrence therewith. However, when therein it has also been propounded qua occurrence of an event subsequent to the institution of the suit when is not an event which constitutes a change in law rather is an event which has a factual tenor, eruption whereof is enjoined to be incorporated in his plaint by the plaintiff by motioning the court concerned under the apposite provisions of the Code of Civil Procedure for leave standing accorded to him for introducing it in his pleadings, would not render any eruption of a fact other than variation in law, eruption whereof occurs subsequent to the institution of the suit to hold any vigour dehors its standing un-incorporated in the suit by the plaintiff by his resorting before the court concerned to the appropriate statutory procedural mechanism nor would the plaintiff hold any leverage to thereupon canvass of his without asking for leave of the Court to beget an apposite amendment to the plaint his standing entitled to a decree for mandatory injunction nor can the plaintiff contend of the aforesaid apposite principle of the Hon'ble Apex Court as relied upon by him, holding any sinew predominantly when the decree of mandatory injunction not stood prayed for in the plaint nor when he with the leave of the court concerned, concerted to beget an apposite amendment in the plaint to bring the rendition of the learned trial court in conformity therewith, as a corollary any moulding of relief by the court concerned for bringing it in conformity with the subsequent events is hence a principle of law which does not warrant any conflict with the apposite statutory mechanism embodied in Order 6, Rule 17 of the Code of Civil Procedure nor it can subtract its vigour. Consequently, the verdict of the learned trial Court to proceed to afford to the plaintiff the relief of mandatory injunction even when it stood not prayed for by the plaintiff in his suit merely by its paying reverence to the manifestations in Ex.PW5/A has subtracted the vigour also has denuded the might of the provisions of Order 6, Rule 17 of the Code of Civil Procedure, provisions whereof even in the verdict of the Hon'ble Apex Court rendered in Om Prakash Gupta's case (supra) stand enjoined to be put in play by the plaintiff for introducing in his plaint any supervening event vis-a-vis the institution of the suit for hence validating the decree in consonance therewith rendered by the Court concerned. 12. The learned counsel appearing for the plaintiff has contended of the apt factual supervening events otherwise, dehors the aforesaid discussion wherefrom the imminent fact emerges to the forefront of the plaintiff not holding any vestige of any right to ask for moulding of relief by the Court concerned in consonance therewith without amending his pleadings for bringing them inconformity with the changed factual scenario manifested in Ex.PW5/A, per se purveying him leverage to yet espouse hereat qua the verdict of the learned Civil Judge (Senior Division), Karsog holding validation, predominantly, with precise reflections occurring in Ex.PW5/A and in Ex.PW5/B qua the excavation activity carried out by the defendant on his land located in contiguity to the land of the plaintiff rendering it amenable to its peeling off besides its facing an imminent threat of erosion. Be that as it may, even otherwise with the manifestations occurring in Ex.PW5/A of imminent endangerment ensuing to the land of the plaintiff which stands located above the land of the defendant, rather with the manifestations occurring therein standing prepared on 19.7.2004, whereas, since then uptill now no motion standing made by the plaintiff before the courts concerned qua the imminent endangerment to his land ensuing from the construction activity held beneath it by the defendant, sequels an inference of the purported apposite imminent threat not assuming any realistic proportion rather hence the grievance, if any, reared by the plaintiff being surmisal. Consequently, it appears of the manifestations occurring in Ex.PW5/A being wholly surmisal also palpably with the authours of Ex.PW5/A not holding the expertise of a geologist , who alone by holding the relevant tests for determining the erosive capacity of the land of the plaintiff, his revelations in his apposite report qua the land of the plaintiff suffering an imminent threat of erosion would conclusively display of the reflections occurring in Ex.PW5/A qua the endangerment ensuing to the land of the plaintiff arising from construction activity held beneath it by the defendant hence garnering vigour. Contrarily when the best evidence of the geologist qua the facet aforesaid stands unadduced by the plaintiff no imputations of credibility can stand fastened to the manifestations occurring in Ex.PW5/A, more so reiteratedly when since 2004 uptill now with the land of the plaintiff not suffering any erosion rather galvanizes an inference of the land of the plaintiff standing not endangered by any construction activity held beneath it by the defendant. Consequently, with the subsequent event aforesaid manifested in Ex.PW5/A while not carrying any tenacity, any reverence thereto by the learned trial Court dehors the aforesaid discussion is wholly inapt. 14. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are based upon a proper and mature appreciation of the evidence on record. While rendering the apposite findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Accordingly, both the substantial questions of law are answered in favour of the defendant/respondent and against the plaintiff/appellant. 15. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgment and decree rendered by the learned Additional District Judge, Mandi camp at Karsog is maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.