WPMS/2772/2021
2022 Latest Caselaw 3313 UK

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                                  WPMS No. 2772 of 2021
                                  Hon'ble Manoj Kumar Tiwari, J.

Mr. Piyush Garg, Advocate for the petitioner.

Mr. Sagar Kothari, Advocate, holding brief of Mr. Ramji Srivastava, Advocate for the respondent.

Heard learned counsel for the parties.

This is defendant's petition challenging the order passed by learned trial Court in Original Suit No. 95 of 2019 on 16.08.2019. Petitioner has also challenged the judgment & order dated 28.09.2021 passed by learned IVth Additional District Judge, Dehradun in Misc. Civil Appeal No. 76 of 2019. By the impugned order dated 16.08.2019, learned trial Court had restrained the defendant (petitioner herein), his representative, agent, labourer etc. from raising any construction over the suit property comprised in Khasra No. 2220 in Mauja Arcadia Grant, District Dehradun. Petitioner filed an Appeal under Order 43 Rule 1 (r) C.P.C. against the said order. Learned Appellate Court modified the order passed by learned trial Court vide judgment dated 28.09.2021 by directing the parties to maintain status quo qua the suit property.

In this writ petition, petitioner has challenged the order passed by learned trial Court as well as learned Appellate Court.

Learned counsel for the petitioner contends that plaintiff in the suit admits that she purchased a small piece of land for residential purpose comprised in Khasra No. 2220 in Mauja Arcadia Grant, District Dehradun and she further admits that defendant in the suit has also purchased residential plot comprised in Khasra No. 2223 in Mauja Arcadia Grant, District Dehradun. He refers to paragraph no. 22 of the plaint for contending that plaintiff admits that defendant has raised construction over the land in suit. He also refers to the relief clause, where plaintiff has sought mandatory injunction against the defendant. Learned counsel for the petitioner has drawn attention of this Court to certain photographs, which are on record as Annexure No. 11 to the writ petition. In paragraph no. 21 of the writ petition, it is stated that construction of petitioner's residential house is complete and only finishing work is to be carried out. He further submits that learned Appellate Court itself recorded a finding that there is no clarity regarding khasra number over which construction is raised by the petitioner, therefore, learned Appellate Court was not justified in directing the parties to maintain status quo. He further submits that petitioner is serving as Senior Manager in Indian Bank at Dehradun and he purchased the land in the year 2016, after taking huge amount as loan. He refers to paragraph no. 22 of the writ petition, where it is stated that total outstanding against the loan taken by the petitioner is about ` 37,00,000/-. Learned counsel further submits that since the plaintiff was not able to make out a prima facie case and he could not even establish identity of his land, therefore, the orders passed by learned Courts below are unsustainable. He further submits that due to the order of status quo passed by learned Appellate Court, petitioner is unable to carry out finishing work and if he is not permitted to complete the finishing work, then the entire construction raised by the petitioner so far will also become ruinous, thus, he submits that balance of convenience also lies in favour of the defendant and he would suffer irreparably if he is not permitted to complete the finishing work.

Learned counsel for the petitioner contends that if the impugned orders are not modified and petitioner is not permitted to complete the finishing work in the already constructed house, then he would suffer irreparable loss and injury, as he would not be able utilize the property till the suit is decided, which would take several years and then he will have to wait for disposal of First & Second Appeals, which will take decades all together. He further submits that the building will turn into ruins by the time the case is finally decided. He has relied upon paragraph no. 28 of the judgment rendered by Hon'ble Supreme Court in the case of Narendra Kante Vs. Anuradha Kante and others, reported in (2010) 2 SCC 77, which is reproduced below:

"23. Now, coming to the question of balance of convenience and inconvenience and irreparable loss and injury, it has to be kept in mind that the Respondent No.10 has already acquired rights in respect of the share of the Respondent Nos.8 and 9 to the suit property and in the event an interim order is passed preventing development of the portion of the property acquired by it, it would suffer irreparable loss and injury since it would not be able to utilize the property till the suit is disposed of, which could take several years at the original stage, and, thereafter, several more years at the appellate stages."

Learned counsel for the respondent, however, submits that learned Courts below were justified in passing the order, which are impugned in this writ petition. He submits that the order of status quo was necessary for protecting interest of the plaintiff (respondent herein).

This Court finds substance in the contention made on behalf of the petitioner. In the plaint, plaintiff admits that defendant is not only in the possession of the suit property, but he has also raised construction thereupon; plaintiff further admits that defendant has purchased 139.35 sq. meter land comprised in Khasra No. 2223 in Village Arcadia Grant and plaintiff has sought mandatory injunction for removing construction raised by the defendant from suit property (Khasra No. 2220 admeasuring 1200 sq. feet), therefore, the order of status quo passed by learned Appellate Court is causing irreparable loss to the petitioner, as he is not able to complete the finishing work in his already constructed building; if petitioner is permitted to complete the finishing work, then he can use the house for residential house, such permission, however, would be subject to following conditions:

(i) Petitioner will not claim any equity based on permission to complete the finishing work granted by this Court.

(ii) Completion of construction/ finishing work of the building will abide by the decision in the pending suit.

(iii) The finishing work would be completed by the petitioner at his own risk and cost.

In such view of the matter, the impugned orders are modified and it is provided that petitioner shall be at liberty to complete the finishing work in his already constructed building to make it habitable, however, such completion of finishing work will not improve his case in the pending suit, which shall be decided by learned trial Court on merits, uninfluenced by this order. The work to be undertaken in the said house will be subject to the condition mentioned in the preceding paragraph. It is further provided that petitioner will not transfer the title or possession in respect of the land in suit or the house constructed thereupon, in favour of any person. In other words, he will not create any third party interest over the suit property nor will he create any charge over the suit property except charge, which is already created, during the pendency of the suit.

Since the suit was filed in the year 2019, therefore, having regard to the circumstances of the case, learned trial Court is requested to make endeavour to decide the suit as early as possible, preferably within a period of 18 months from the date of production of certified copy of this order.

The writ petition stands disposed of in aforesaid terms.

(Manoj Kumar Tiwari, J.) 13.10.2022 Pooja