Uttarakhand High Court
4 September vs Leela Sah & Others on 4 September, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
2025:UHC:7872
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Misc. Single No. 694 of 2025
04 September, 2025
Tika Ram Budhlakoti
--Petitioner
Versus
Leela Sah & others
--Respondents
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Presence:-
Dr. K.H. Gupta, learned counsel for the petitioner.
Mr. B.D. Pande and Mr. Bharat Tewari, learned counsel for
the respondent nos.1, 2 & 3.
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Hon'ble Pankaj Purohit, J.
By means of the present writ petition, petitioner
has sought the following reliefs:-
"(i)- Issue a writ, order or direction in the nature of
certiorari calling for record and quash/set-aside the
judgment and order dated 03.12.2024 (annexure no.1)
passed by learned District Judge, Nainital in
Miscellaneous Civil Appeal No.11 of 2023, Smt. Leela Sah
& others vs. Shri Tika Ram Bhudhlakoti & others.
(ii) Issue a writ, order or direction directing the
respondents to restore the position as existed on
20.12.2023 (annexure no.4) (the date of temporary
injunction order) over the suit property in Civil Case No.72
of 2023 "Tika Ram Budhlakoti vs. Smt. Meena Sah &
others."
2. Facts of the case are that petitioner, Shri Tika
Ram Budhlakoti, purchased a property named 'Mohan
Niwas' in Nainital from Late Mrs. Ganga Devi Sah through
a registered Sale Deed dated 19.10.1996. The property
included one room each on the ground and first floors, and
a tin-shed on the roof of the first floor where a tenant lived.
The sale deed explicitly granted the petitioner exclusive
rights over the roof and stated that neither the seller nor
the tenant would carry out any construction on the roof
and if the tin-shed were ever sold, it would be sold only to
the petitioner. After the seller's death in 2013, the
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respondents attempted to sell or construct on the rooftop in
violation of the Sale Deed. In 2023, the petitioner filed Civil
Suit No. 72 of 2023 seeking ownership declaration and an
injunction. On 20.12.2023, the trial court granted a
temporary injunction restraining any new construction.
However, despite the trial court's order, the respondents
proceeded with illegal construction. On 08.01.2024, the
District Level Development Authority (DLDA) issued a
demolition order. The petitioner then filed an application
under Order 39 Rule 2(A) CPC for contempt, which was
registered as Miscellaneous Case No. 05/2024. Meanwhile,
the respondents filed Miscellaneous Civil Appeal No. 11 of
2023 against the temporary injunction. On 03.12.2024, the
appellate court allowed the appeal and modified the
injunction by passing a status quo order in favor of the
respondents. Feeling aggrieved, petitioner is before this
Court.
3. Learned counsel for the petitioner argued that
appellate court's order is unjust because he was in lawful
possession of the roof as per the Sale Deed. He further
argued that illegal construction was done after the
injunction order. Further, the status quo order should not
legitimize or protect post-injunction illegal construction.
4. Per contra, learned counsel for respondent
nos.1, 2 & 3 submits that the appellate court's order dated
03.12.2024, modifying the injunction to a status quo order,
was passed after due consideration of both parties' rights
and possession. Status quo ensures no further changes are
made and does not legalize any construction, it simply
preserves the situation as it existed on the date of appellate
proceedings.
5. Heard learned counsel for the parties and
carefully perused the material available on record, this
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Court is of the view that the appellate court, being a
competent authority, has exercised its jurisdiction under
Order 43 Rule 1 CPC to modify the interim relief. The
substitution of the injunction with a status quo order
cannot be said to be without jurisdiction or patently
perverse. The petitioner retains the liberty to pursue
appropriate remedies before the trial court, including
pressing his application under Order 39 Rule 2(A) CPC,
which is already pending. The appellate court's order does
not preclude the trial court from considering allegations of
disobedience of the earlier injunction order or from
adjudicating upon the merits of the suit. Interference under
Article 227 of the Constitution of India is not warranted at
this stage, particularly when an alternate efficacious
remedy is available.
6. Accordingly, the writ petition is dismissed. No
order as to costs.
7. Pending application, if any, stands disposed of
accordingly.
(Pankaj Purohit, J.)
04.09.2025
AK
