The importance of pleadings and specific evidence in granting mandatory injunction, and the finality and conclusivity of the decree of permanent prohibitory injunction.

Sureshwar Thakur, J.

The instant petition stands directed against the impugned order recorded by the learned executing Court upon a petition constituted there before under Order 21 Rule 32 of CPC by the DHs/petitioners herein (for short “the plaintiffs) whereby the aforesaid petition stood dismissed by it.

2. The learned trial Court pronounced qua the petitioners/plaintiffs (for short “the plaintiffs) an apposite decree of permanent prohibitory injunction whereupon the defendants stood restrained from causing any obstruction upon a path existing on the suit land depicted in Tatima Ex.PW-1/A.

3. During the pendency of the suit before the learned trial Court the defendants purportedly caused obstruction upon the path existing on the aforesaid suit land whereupon the plaintiffs made an oral request before the learned trial Court qua a relief of mandatory injunction standing pronounced by it for directing the defendants to remove the obstruction raised by them upon the path existing upon the suit land. The learned trial Court declined the aforesaid relief to the plaintiffs. The declining of the aforesaid relief to the plaintiffs by the learned trial Court is not ridden with any inherent procedural fallacy given the plaintiffs without begetting apposite amendments in the plaint by instituting there before an application under Order 6 Rule 17 CPC theirs merely making there before an oral submission for the according of the apposite relief to them, oral relief whereof naturally warranted its standing declined as tenably declined by the learned trial Court. Also evidence, if any, in consonance therewith for hence a decree of mandatory injunction standing pronounced upon the defendants was wholly discardable it naturally being beyond pleadings.

4. The defendants’ omitted to assail the decree of permanent prohibitory injunction pronounced vis-à-vis the plaintiffs by theirs carrying an appeal therefrom before the learned first Appellate Court. Consequently the decree of permanent prohibitory injunction pronounced by the learned trial Court attained finality besides conclusivity.

5. Be that as it may despite the defendants’ not assailing the decree of the learned trial Court whereby they stood injuncted against causing any obstruction upon the path borne on tatima Ex.PW-1/A reflected in the operative portion of the judgment and decree pronounced by the learned trial Court, the plaintiffs’ though carried an appeal therefrom before the learned first Appellate Court whereby they assailed the rendition recorded by the learned trial Court whereby relief of mandatory injunction stood refused vis-à-vis them yet there before also they orally submitted qua the defendants’ during the pendency of the suit before the learned trial Court causing obstruction upon the path comprised in the aforesaid Khasra Number whereupon they had staked a claim qua an an easementary right of its user for facilitating theirs accessing their house besides made an oral prayer there before qua an apposite decree of mandatory injunction standing pronounced against the defendants. The aforesaid oral prayer made by the plaintiffs before the learned trial Court besides before the learned appellate Court stood aptly declined to them for theirs before either of the Courts omitting to beget an apposite amendment in the plaint by moving an appropriate application constituted under Order 6 Rule 17 CPC. Also the plaintiffs did not concert to assail the relevant findings qua the facet aforesaid embodied in paragraph 22 of the judgment of the First appellate Court, paragraph whereof stands extracted hereinafter by theirs preferring an appeal therefrom before this Court. In sequel thereto finality besides conclusivity stands imputed to the findings recorded by the learned first Appellate Court qua the relevant factum probandum of the defendants’ not warranting vis-à-vis them any rendition of any decree of mandatory injunction arising from theirs during the pendency of the suit before the l

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