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Showing contexts for: structural changes in Sri Saju Prasad Gupta vs Sh. Triveni Prasad on 25 November, 2014Matching Fragments
Vide this order, I shall dispose of an application U/o 39 Rules 1 & 2 of the CPC filed by the plaintiff for grant of injunction.
2. Before narrating the facts, which are necessary for the disposal of the said application for injunction filed by the plaintiff, it becomes pertinent to mention here that the present suit was filed by the plaintiff in the year 2002. Perusal of the record of the case reveals that the injunction application of the plaintiff U/o 39 Rules 1 & 2 of the CPC was disposed off by the Ld. Predecessor of this Court on 06.09.2008. The abovesaid injunction application of the plaintiff was allowed by the Ld. Predecessor of this Court and the defendants were directed to maintain status quo with respect to the possession and title of the suit property till the disposal of the present suit vide orders dated 06.09.2008. Amongst other properties, the said injunction application of the plaintiff also deals Page no. 1 of 5 with the property bearing no. X-36A, Gali No. IX, Near Apna Bazar, Braham Puri, Delhi. Now, the grievance of the plaintiff in the present application for injunction is that the defendant no. 1 has threatened the plaintiff to make the addition, alteration and structural changes in the aforesaid property without getting the property partitioned. It has been further stated by the plaintiff that in a portion of the said property, the plaintiff is residing and the defendant no. 1 is residing in the other portion of the said property. It has been prayed by the plaintiff in the said application that the defendant no. 1 be restrained from carrying out any addition, alteration and structural changes in the said property till the decision of the present suit.
3. In the reply filed on record by the defendant no. 1 to the said application, the defendant no. 1 has stated that the plaintiff himself has raised the construction upon the roof of the first floor and covered the open said roof by one Tirpal and has also encroached the open space, which was used by the defendants no. 1 and 2. It has been further stated that the plaintiff himself is doing wrong. It has been further stated that the floor level of the house became 3 feet down to the road level because of the old construction, which was carried out about 30-35 years ago. It has been further stated that on account of the lowering down of the floor level, Page no. 2 of 5 the sewer and drainage water used to enter inside the rooms of the defendant no. 1, as a result of which, the defendant no. 1 and his family members felt a lot of inconvenience. It has been further stated that the defendant no. 1 is only trying to equalize the floor level of the house to the road level so that the drainage water and sewer water do not enter inside the house of the defendant no.1. It has been further stated that the abovesaid equalization of the floor level by the defendant no. 1 does not amount to any addition, alteration or structural changes in the house. It has been prayed that the application filed by the plaintiff be dismissed.
4. I have carefully gone through the entire material available on record and heard the rival submissions of both the Ld. Counsels for the parties.
5. As stated by me hereinabove, vide orders dated 06.09.2008, the injunction application of the plaintiff U/o 39 Rules 1 & 2 of the CPC was allowed by the Ld. Predecessor of this Court, whereby the defendants were directed to maintain status quo with respect to the possession and title of the suit property till the final disposal of the present suit. The said orders dated 06.09.2008 also deals with the property bearing no. X-36A, Gali No. IX, Near Apna Bazar, Braham Puri, Delhi. Now, in the reply filed on record by the defendants to the said Page no. 3 of 5 application, the defendant no. 1 has admitted that the floor level of the said property has gone down as compared to the road level as a result of which, the sewer water/ drainage water used to enter in the house of the defendant no. 1 and as such, the said equalization does not amount to any addition, alteration and structural changes. To my mind, the abovesaid submission of the defendant no. 1 is without any substance. The present suit is pending trial. No application was filed by the defendant no. 1 in the present suit to the effect that he wants to equalize the floor level to the road level. Nothing has been placed on record by the defendant no. 1 to show that the floor level has gone down as compared to the road level and that he has been constrained to equalize the floor level. As such, I am of the opinion that the plaintiff has been able to make out a prima facie case in his favour so far as the present injunction application of the plaintiff is concerned. The balance of convenience also lies in favour of the plaintiff and the plaintiff shall also suffer an irreparable loss and injury if the injunction is not granted.
6. In the light of the abovesaid discussion, the injunction application of the plaintiff is hereby allowed and the defendant no. 1 is hereby restrained from carrying out any addition, alteration and structural changes in the property bearing no. X-36A, Gali No. IX, Near Apna Bazar, Page no. 4 of 5 Braham Puri, Delhi till the final disposal of the present suit.
Nothing stated herein shall tantamount to an expression of opinion on merits during the trial of the present suit.