The court has the discretion to modify an injunction granted by the trial court, as long as the substance of the relief ultimately granted is the same as prayed for.

The plaintiff, who was successful in the trial court is the appellant in the above second appeal.

2. The case of the plaintiff was that the suit property bearing Door No.364/A within the Ooty Municipal Limits belongs to him and that it has been leased out to the first defendant. Defendants 2 and 3 are said to be the brothers of the first defendant. It is also stated has collapsed during the then unprecedented rains and floods at Ooty as a consequence of which only one room was remaining. Thereupon, the defendants were said to have attempted to put up a construction in the portion where the building had completely fallen down. It is stated that the defendants have no right to do so and consequently, it became necessary for the plaintiff to approach the trial court. In such circumstances, the suit O.S. No.365 of 1978 was filed by the plaintiff in Sub Court, Nilgiris at Ootacamund, praying for permanent injunction restraining the defendants from putting up any construction in the suit property or altering the nature of the suit property.

3. The defendants in their written statement while admitting the relationship of landlord and tenant with the plaintiff contended that it was a fact that due to the unprecedented rains and floods, major portion of the building was washed away and that the said fact did not have the effect of bringing about the termination of the tenancy and inasmuch as the defendants have not also elected to terminate the tenancy, it still subsisted and consequently, the defendants had a right to put up construction in order to restore the status quo-ante so that they can enjoy the rights of tenancy as per the original agreement of tenancy. On the said plea, the defendants contended that the suit was liable to be dismissed and the plaintiff was not entitled to any relief as prayed for. Documents were filed on either side and though there was no oral evidence let in for the plaintiff, the first defendant got examined himself as D.W.I.

4. After considering the oral and documentary evidence on record, the trial court held that having regard to the provisions contained in Clause (p) of Sec.108 of the Transfer of Property Act (hereinafter referred to as “the Act”), 1882, even as a tenant, the first defendant is not entitled to put up any permanent structure even by way of reconstruction, though he would be entitled to continue as a tenant. The trial court came to such a conclusion placing reliance upon the decision of the Kerala High Court reported in Kurian and another v. Job and others, A.I.R. 1975 Ker. 175, in preference to the decision reported in Abdul Rasheed v. Bashir Hussain, A.I.R. 1972 All. 545. The trial court decreed the suit as prayed for. Aggrieved the respondents filed an appeal before the learned District Judge, Coimbatore in A.S. No.72 of 1981.

5. The lower appellate court went into the question particularly with reference to the nature of the construction put up in the present case and came to the conclusion that the trial Court may not be right in granting a permanent injunction and on the other hand, the suit for permanent injunction has to be decreed only restraining the defendants from putting up only permanent structures and not any structure. On that view, the lower appellate court considered that a modification of the decree passed by the trial court was necessary and consequently modified the decree of the trial court as hereunder:

“1. That the defendants, their men, agents, servants or any body claiming through them or in trust for them be and are hereby restrained by means of a permanent injunction from putting up any permanent structure on the vacant site adjoining the small room now in existence and in the possession of the first defendant or from altering the present nature of the property.

2. The appeal is allowed in the above terms. The parties are also directed to bear their own costs in the appeal also in the circumstances of the case.” Aggrieved against the judgment o