Point of law: Unless mutually agreeable terms and conditions are evolved by and between the parties permitting the usage of the passage without posing obstruction to each other, any order from the Court on such count during the pendency of the suit, would be uncalled for.

ORDER :

1. Heard Mr. K.K. Mahanta, learned Senior Counsel appearing for the petitioner. Also heard Mr. J. Roy, learned counsel for the respondent.

2. This is an application under Article 227 of the Constitution of India, whereby the order dated 26.04.2019 passed by the learned Civil Judge No. 1, Kamrup (M) in Mis. Appeal No. 31/2015 has been put to challenge.

3. The factual matrix relating to this petition displays a story about the friendship between two persons and how their relationship got soured. Both the friends are doctorate degree holders and they decided to have their houses at the same place. Accordingly, they purchased lands adjacent to each other. Their lands are connected to the main road by a 10 feet wide passage. At one point of the passage, there is the residence of the present petitioner and on the other side of the passage, there is the boundary wall. According to the petitioner, there was a possibility that if vehicles pass through that passage, they would hit the open window panes of his house. Therefore, the petitioner made a small structure just below the windows so that the vehicles passing through that passage would not hit his window panes. In this way, the 10 feet wide passage lost some of its width. Through that passage two vehicles could not travel together and if one vehicle is parked on that passage, it would block the passage for other vehicles. These are the facts which led to deterioration of the relationship between the petitioner and the respondent. Ultimately, the respondent filed a suit, being T.S. No. 137/2015 against the petitioner praying for a decree declaring that the said common passage should be kept open round the clock without any obstruction.

4. Along with the suit, the respondent filed an injunction petition under Order 39 Rule 1 and 2 of the Code of Civil Procedure. In Misc. (j) case No. 221/2015, the learned trial court, after hearing both sides, rejected the prayer of the respondent. Thereafter, the respondent filed an appeal before the court of Civil Judge No. 1, Kamrup (M) and the same was registered as Misc. Appeal No. 31/2015. On 26.04.2019, after hearing both sides, the first appellate court disagreed with the decision of the trial court and granted the prayer of injunction.

5. Thus aggrieved by the aforesaid order, the present petition has been filed.

6. Mr. Mahanta, has submitted that by the impugned order of the first appellate court, the reliefs prayed in the main suit has been granted. Therefore, Mr. Mahanta has submitted, that the impugned order is bad in law. In order to buttress his point, Mr. Mahanta has relied upon decision of the Supreme Court that was rendered in Neon Laboratories Limited vs. Medical Technologies Limited, 2016 (2) SCC 672.

7. The paragraph No. 5 of the said judgment is quoted as under:

This Court does not normally entertain appeals against interlocutory orders. In the case of trademarks, however, keeping in perspective the endemic delay in concluding cases/suits in India because of the exponentially increasing docket explosion, temporary ad interim injunctions are of far-reaching consequences, oftentimes effectively deciding the lis and the disputes themselves. Possibly for this reason “leave” has already been granted in the present appeal. However, it is now well-entrenched in our jurisprudence that the appellate court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse. Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. We shall restrict ourselves to reference in Wander Ltd. vs. Antox India Pvt. Ltd. 1990 Supp. SCC 727 wherein it has been adumbrated that the appellate court ought not to:

“Reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justif