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2005 Supreme(Guj) 529
Gujarat High Court
Judgename :D.H.WAGHELA
CHAIRMAN/secretary BHADRESHWAR CO-OP HOSG.SOC. - Appellant
Versus
MAHARAJ SAMOSA CENTRE PROP.BABULAL HARIRAM - Respondent
APPEAL FROM ORDER 99 of 2005
Decided On : 08/10/2005
Headnote:
Civil Law – Civil Suit – Status quo – Contended on behalf of appellant that admittedly appellant is owner of housing society and the compound wall that existed around the buildings of the society has to be protected and could not be ordered to be demolished at the instance of the occupants of certain shops – Case of the appellant that wall that existed had been demolished and after resolution of the appellant, wall was newly constructed so as to protect the members of the society from external nuisance. It is apparent from the record that the appellant approached City Civil Court immediately after construction of wall and obtained the interim order to maintain status quo which operated till the impugned order, after hearing the respondents, was passed. It may be important to note at the outset that the main suit itself is filed with the sole prayer of permanent injunction against demolition of the compound wall by the respondents – Held, Court cannot blink at their unlawful conduct to dispossess the appellant from the demised property and would say that the status quo be maintained. If the court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary – "the loss suffered by the respondents cannot be assessed at this stage and cannot be the subject-matter at present for award of any compensation, but this Court would be failing in its duty of doing justice if the respondents are not even awarded costs of this litigation – In view of pendency of the suit where evidence is yet to be recorded in respect of the documents relied upon by the parties and in view of the urgent request not to initiate any actions against the deponent, no further orders are passed in respect of the enquiry into the affidavit filed by the then secretary of the society – Needless to clarify that the conclusions drawn and the observations made in this judgment are based on prima facie examination of the material on record and for the purpose of deciding the issue of interim relief; and, therefore, the trial Court shall proceed with the main suit in accordance with law without being influenced by the observations made herein – Therefore modifying the impugned order to the extent that the respondents shall demolish the wall in question after filing an undertaking in the trial Court stating that, in case it is held that the wall was required to be protected at the time of filing of the suit, respondents shall reconstruct the wall at the same place and of the same length, width, hight and strength within two months of the order of the trial Court – Directions issued – Appeal is disposed (Paras 9 and 10)
( 2 ) CHALLENGING the aforesaid order, it is contended on behalf of the appellant that admittedly the appellant is the owner of the housing society and the compound wall that existed around the buildings of the society has to be protected and could not be ordered to be demolished at the instance of the occupants of certain shops. It was the case of the appellant that the wall that existed had been demolished on 4. 9. 2004 and after the resolution dated 6. 9. 2004 of the appellant, the wall was newly constructed so as to protect the members of the society from external nuisance. It is apparent from the record that the appellant approached the City Civil Court immediately after construction of the wall and obtained the interim order to maintain status quo which operated till the impugned order, after hearing the respondents, was passed. It may be important to note at the outset that the main suit itself is filed with the sole prayer of permanent injunction against demolition of the compound wall by the respondents. Therefore, it is all but an admitted fact that the suit has been instituted and interim relief was prayed for protection of the wall which was constructed immediately before filing of the suit and the issues of legality or otherwise of construction of the wall are left to be raised by the other side while the wall would stand.
( 3 ) ACCORDING to the defence of the respondents, and as found by the trial Court in the impugned judgment, the defendants have been in possession of the shops abutting the road since the years 2000 to 2002 and the wall constructed between the road and the shops can only cause hindrance to the owners of the shops. Under apprehension of construction of such a wall by the appellant, the respondents had filed a caveat application dated 3. 9. 2004 and the initial ad-interim order to maintain status quo was passed in the face of that caveat application without affording to the respondents an opportunity of being heard. The appellant had apparently not pointed out filing of the caveat by the respondents and the court has taken a serious view of suppression of that fact. Having regard to the contentions raised and the documents relied upon by the respondents, particularly the resolution dated 2. 11. 2000 signifying sale of the whole flat in which the shops of the respondents were made, the Court has reached the prima facie conclusion that not only the compound wall was demolished with the permission of the appellant but the land which was left open thereby was permitted to be used under that resolution which was purported to have been signed by the secretary and the president of the appellant society. Thereafter, the respondents appeared to have enjoyed free access to their premises directly from the road and the wall in question coming up for the first time after four years of the aforesaid resolution could only cause loss and damage to the respondents in their business and access to their premises. It was in such circumstances that the learned Chamber Judge of the City Civil Court has observed in the impugned judgment that: SThe defendants cannot be compelled to tolerate such loss till the final decision of the suit. On the one hand, if the demolition of the reconstructed wall is hereby ordered, the plaintiffs are not likely to suffer any immediate threat by external elements from nuisance makers. Thus, on balance analysis of the comparative difficulties, I am required t
