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2018 DIGILAW 170 (RAJ)

MAHIPAL SINGH v. SAJJAN SINGH

2018-01-15

DINESH MEHTA

body2018
JUDGMENT : Dinesh Mehta, J. The present Misc. Appeal under Order XLIII rule 1(r) of the Code of Civil Procedure has been filed by the appellant oppugning the order dated 16.09.2017 whereby, the learned Trial Court had rejected appellant's application dated 06.07.2017, seeking certain repairs/modification in a wall. 2. Succinctly stated, the facts apropos for deciding the appeal at hand are that the plaintiffs (respondents herein) filed a suit for recovery of possession against the appellant-defendant, wherein an ad interim order came to be passed by the learned Trial Court on 04.05.2002, directing the parties to maintain status-quo, which application under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure came to be finally decided, vide order of the Trial Court dated 16.07.2014. 3. It would be apt to reproduce the short, yet agreed order passed with the consent of the parties by the learned Trial Court, which runs as under :- **odqyk; i{kdkjku~ mifLFkr nksuksa i{k bl ckr ij lger gS fd ewy okn ds fu.kZ; rd nksuksa i{k ekSds dh ;FkkfLFkfr cuk;s j[ksaxs] vr% nksuks i{kksa dh lgefr ds vk/kkj ij ;g vkns'k ikfjr fd;k tkrk gS fd nksuksa i{k gh ewy okn ds fuLrkj.k gksus rd ;FkkfLFkfr cuk;sa j[ksaxs] i=koyh Qsly 'kqekj gksdj ewy okn ds layXu jgsA** 4. In the changed circumstances, realising that a wall, mentioned and marked at B to G, G to E and E to D, in Annexure-A, filed along with the said application, is in a dilapidated condition which might crumble down at any time, the appellant-applicant filed an application under Order XXXIX Rule 4 of the Code of Civil Procedure, for modification of the aforementioned status-quo order, with the prayer that he be permitted to repair the wall. In para-9 of the application, the appellant-applicant had given complete particulars of the proposed repair/modification of the wall, while giving an unqualified undertaking, that if such construction/repairs is permitted, the appellant would claim any equity based upon such construction/modification. 5. It may be noticed that the aforesaid application was filed by the applicant under the caption of "Application under Order XXXIX Rule 4 read with Section 151 of the Code of Civil Procedure". 6. 5. It may be noticed that the aforesaid application was filed by the applicant under the caption of "Application under Order XXXIX Rule 4 read with Section 151 of the Code of Civil Procedure". 6. The plaintiffs opposed such application filed by the defendant-applicant tooth & nail and filed a detailed reply, inter alia, contending that such application under Order XXXIX Rule 4 of the Code of Civil Procedure is maintainable, particularly because the order dated 16.07.2014 was passed with the consent of the parties and in terms of provisions contained under Order XXIII Rule 3 of the Code of Civil Procedure such, an order passed with the consent of the parties cannot be modified, or altered. 7. The learned Trial Court rejected the appellant's such application, vide its order dated 16.09.2017, essentially on the ground that the same was maintainable, as the order of maintaining status-quo was granted with the consent of the parties and there is no substantial change in the circumstances. 8. 7. The learned Trial Court rejected the appellant's such application, vide its order dated 16.09.2017, essentially on the ground that the same was maintainable, as the order of maintaining status-quo was granted with the consent of the parties and there is no substantial change in the circumstances. 8. It would be out of place to reproduce the relevant part of the said order dated 16.09.2017, which reads thus :- **12 & izkFkhZ us ;g izkFkZuk i= vUrxZr vkns'k 39 fu;e 4 flfoy izfdz;k lafgrk ds rgr is'k fd;k gSA vkns'k 39 fu;e 4 flfoy izfdz;k lafgrk esa ;g izko/kku gS fd O;kns'k ds fdlh Hkh vkns'k dks ml vkns'k ls vlarq"V fdlh i{kdkj }kjk U;k;ky; ls fd;s x;s vkosnu ij ml U;k;ky; }kjk izHkkoksUeqDr fd;k tk ldrk gS] mlesa QsjkQsj fd;k tk ldrk gS ;k mls vikLr fd;k tk ldrk gSA 13 & bl ekeys esa Lohd`r :i ls iwoZ esa O;kns'k dk vkns'k Lo;a izkFkhZ dh lgefr ls ikfjr fd;k x;k Fkk blfy, bl vk/kkj ij ;g ugha dgk tk ldrk fd izkFkhZ iwoZ ds vkns'k ls vlarq"V FkkA blds vykok orZeku esa Hkh izkFkhZ dh vksj ls ;g ugha crk;k x;k gS fd izkFkhZ iwoZ ds O;kns'k ds vkns'k ls vlarq"V gS] ,slh ifjfLFkfr esa bl vk/kkj ij Hkh iwoZ ds vkn'sk esa QsjkQsj ugh fd;k tk ldrk gSA 14 & vkns'k 39 fu;e 4 flfoy izfdz;k lafgrk ds izksfotk esa ;g Hkh izko/kku gS fd tgka fdlh i{kdkj dks lquokbZ dk volj fn;s tkus ds i'pkr~ O;kns'k ds fy, vkns'k ikfjr fd;k x;k gS ogka ,sls vkns'k dks ml i{kdkj ds vkosnu ij rc rd izHkkoksUeqDr mlesa QsjkQsj ;k vikLr fd;k tkuk vko';d ugha gks x;k gks ;k tc rd ifjfLFkfr;ksa ds cny tkus ls ,slk izHkkoksUeqDr QsjkQsj ;k vikLr fd;k tkuk vko';d ugh gks x;k gks ;k tc rd U;k;ky; dk ;g lek/kku ugha gks tkrk gS fd vkns'k ls ml i{kdkj dks vlE;d d"V gqvk gS rc rd ,sls vkns'k esa QsjkQsj ugha fd;k tk ldrk gSA 15 & tgk¡ rd gLrxr izdj.k dk iz'u gS] Lohd`r :i ls izkFkhZ us iwoZ esa ikfjr vkns'k ds le; lEifRr dh D;k fLFkfr Fkh mldks U;k;ky; ds le{k izdV ugh fd;k gS blfy, ;g Li"V ugha gqvk gS fd iwoZ esa vkns'k ikfjr djus ds ckn ifjfLFkfr;ksa esa dksbZ ifjorZu gqvk gS ;k mDr vkns'k ds izHkko esa jgrs gq, izkFkhZ dks vlE;d d"V gks jgk gSa ,slh ifjfLFkfr esa vkns'k 39 fu;e 4 flfoy izfdz;k lafgrk dk mDr ijUrqd ds vk/kkj ij Hkh iwoZ ds vkns'k esa QsjkQsj fd;k tkuk mfpr ugha le>k ugha tkrk gSA 16 & bl izdkj mijksDr foospu ds vk/kkj ij izkFkhZ }kjk is'k fd;k x;k izkFkZuk i= Lohdkj fd;s tkus ;ksX; ugha gSA 17 & ifj.kkeLo:i izkFkhZ dh vksj ls izLrqr izkFkZuk i= vUrxZr vkns'k 39 fu;e 4 flfoy izfdz;k lafgrk [kkfjt fd;k tkrk gSA** 9. Assailing the order dated 16.09.2017, Dr. Sachin Acharya, learned counsel for the appellant-defendant, contended that the learned Court below has misread the provisions of Order XXXIX Rule 4 of the Code of Civil Procedure, and erred in holding that the order passed with the consent of the parties, notwithstanding the proviso appended therewith cannot be modified, as there is no change in circumstances. He further contended that by way of application under consideration the appellant-applicant had simply sought leave to carry out the repairs of the wall which was indispensable, with the additional request to raise the floor level of the open space, which was necessitated in view of the dilapidated condition of the wall and because the level of the open space has comparatively become lower to the road for which, storm water has started coming in the open space. 10. He submitted with pains that the Trial Court has applied pedantic and hyper-technical approach in rejecting appellant's application vide order impugned, instead of applying a justice-oriented approach. 11. Mr. Rameshwar Hedau, learned counsel appearing for the respondents-plaintiffs, while supporting the order passed by the Court below, vehemently opposed the request made by the appellant and contended that the order dated 16.07.2014 was in the nature of 'consent' and in teeth of the proviso to Order XXIII Rule 3 of the Code of Civil Procedure, the same cannot be touched, much less modified or altered. He added that for altering the same, the appellant is required to file a fresh suit and the same cannot be done under the cloak of the application dated 06.07.2017, filed by the appellant. In support of his argument, the learned counsel for the respondents-plaintiffs relied upon the judgment of the Hon'ble Supreme Court in the matter of Pushpa Devi Bhagat (D) Th. L.r. Smt. Sadhna Rai v. Rajinder Singh & Ors., reported in 2006(3) Civil Court Cases 540 (S.C.), particularly para No. 12 whereof, to contend that the consent decree is binding, unless it is set aside by the Court, which had passed the same. 12. Heard learned counsels for the parties and perused the material available on record, including the record of the Trial Court, Commissioner's Report and the photographs of the wall in question and the open space, ground whereof is sought to be raised. 12. Heard learned counsels for the parties and perused the material available on record, including the record of the Trial Court, Commissioner's Report and the photographs of the wall in question and the open space, ground whereof is sought to be raised. Having examined the fact situation and the photographs, this Court is of the considered opinion that the wall in question is in dilapidated condition and there is a likelihood of it collapsing, if remedial measures are taken. 13. As far as, the argument of Mr. Hedau that the application under consideration is maintainable and the finding to this effect recorded by the learned Court below is concerned, this Court is of the view that the provisions contained under Order XXXIX Rule 4 of the Code of Civil Procedure is wide enough to include the present fact situation and there was no impediment before the Court below to modify or vary the order of status-quo granted by it. 14. The learned Court below, while rejecting appellant's request, being guided by the argument advanced on behalf of the respondent, has held that the provisions contained under Order XXXIX Rule 4 of the Code of Civil Procedure are applicable in the facts of the case, while completely ignoring that the application filed by the applicant-appellant was also captioned to be under Section 151 of the Code of Civil Procedure, which is the repository of the inherent powers of the Court. In considered opinion of this Court, the Trial Court has seriously erred in applying narrow minded approach and instead of serving the cause of justice, has rejected the appellant's genuine request which was rather necessary, for maintaining the status-quo, it had ordered. 15. Adverting to the argument advanced on behalf of Mr. Hedau that in wake of provisions under XXIII Rule 3 of the Code of Civil Procedure, the consent decree passed by the Court cannot be modified and the same can be altered only by way of a fresh suit, suffice it to observe that passing of the final order or deciding the application under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure does amount to passing of a 'decree' for which reason, applicability of Order XXIII Rule 3 is out of question. Had it been the situation once an application for Temporary Injunction has been granted, the Court cannot take a different view while deciding the suit finally. 16. As far as, the judgment judgment in Pushpa Devi Bhagat (supra) cited by the learned counsel Mr. Hedau appearing for the respondents-plaintiffs is concerned, suffice it to note that the said judgment deals with a 'consent decree', which was passed after final adjudication of the suit; whereas, in the present case, there is no 'consent decree' and it was only a 'consent order' for maintaining status-quo at the relevant point of time. Hence, the Judgment in the case of Pushpa Devi Bhagat (supra) is of little avail to the respondents-plaintiffs. 17. After considering the arguments advanced and appraisal of the factual matrix, this Court deems it expedient and hence orders, that the appellant-applicant be permitted to carry out necessary repair/maintenance/improvement in the subject property, as indicated in para-9 of the application filed by him. The applicant-appellant shall furnish an undertaking before the Trial Court that he shall confine his construction/modification within the stipulation made in para-9 of his application and would claim any equity from such improvement/repair. 18. It would be open to the respondents-plaintiffs to file appropriate application, if the construction/repair/improvement done is found in variance of the order instant or beyond what has been prayed, vide para-9 of the application. 19. The Appeal stands allowed, however without any order as to cost.