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IN THE HIGH COURT OF ALLAHABAD
N. L. GANGULY
K.L.VIRMANI - Appellant
Versus
IIIRD ADDITIONAL DIST.JUDGE - Respondents
C. M. W. P. 19415 Of 1988
Decided On : 07/13/1992
EASEMENT - INJUNCTION - O. 39, R. 2A, C. P. C. - DISOBEDIENCE OF INJUNCTION ORDER - COURT'S INHERENT POWER TO UNDO WRONG - APPLICABILITY OF AMENDED PROVISIONS OF O. 39, R. 2A, C. P. C. - LIABILITY OF AGENT OR SERVANT OF DEFENDANT FOR VIOLATION OF INJUNCTION ORDER.
Fact of the Case:
The petitioner, a tenant in a dominant tenement, filed a suit for injunction against the respondent, the owner of the servient tenement, to restrain him from closing or disturbing the flow of water from the dominant tenement through three outlets in the boundary wall. An interim injunction was granted by the court, but the respondent allegedly violated the injunction by filling the land of the servient tenement and closing the outlets.
Finding of the Court:
The court held that the respondent had violated the injunction order and that the petitioner was entitled to relief. The court also held that the amended provisions of O. 39, R. 2A, C. P. C. were applicable to the case and that the court had the inherent power to undo the wrong done by the respondent.
Issues: 1. Whether the respondent had violated the injunction order. 2. Whether the petitioner was entitled to relief. 3. Whether the amended provisions of O. 39, R. 2A, C. P. C. were applicable to the case. 4. Whether the court had the inherent power to undo the wrong done by the respondent.
Ratio Decidendi: 1. The court held that the respondent had violated the injunction order on the basis of the evidence on record, including the affidavit of the architect who stated that he had closed the outlets at the instance of the respondent. 2. The court held that the petitioner was entitled to relief because the respondent had caused a wrong by violating the injunction order. 3. The court held that the amended provisions of O. 39, R. 2A, C. P. C. were applicable to the case because the suit had been filed after the amendments came into force. 4. The court held that it had the inherent power to undo the wrong done by the respondent because the respondent had defied and disobeyed the order of injunction passed by the Civil Court.
Final Decision: The court allowed the petition, quashed the judgments of the lower courts, and directed the trial court to pass suitable orders on the petitioner's application for action under O. 39, R. 2A, C. P. C. The court also directed the respondent to bear the expenses for affixing drain pipes to connect the outlets with the strip of land so that the rain and flood waters could pass through without damaging any part of the building of either of the parties.
( 1 ) THE petitioner is a tenant of premises 3, Convent Road Dehradun. Smt. Sarla Devi Sharma is the owner/land-lady of the house. Towards east of the said accommodation exists a servant tenament after the boundary wall where three opening for outlet for water, rain and flood water used to flow since long. The servient tenaments (premises 35/1 had always been on lower level than that of dominant tenament. The respondent No. 3, Dr. M. Singh, started raising constructions over the servient tenament in the month of November, 1982, through architect Sri S. A. Khan who was his agent. The petitioner apprehended that the three existing out lets in the boundary-wall openings to the servient tenament was going to be closed by respondent. A civil suit was thus filed by the petitioner impleading Dr. M. Singh as defendant No. 1 and S. A. Khan as defendant No. 2 seeking injunction restraining the defendants Nos. 1 and 2 for closing or disturbing the flow of the water of the dominant tenament through the three outlets in the eastern boundry-wall. The petitioner is a tenant in the premises in question i. e. the dominant tenement since 1955. The allegation in the plaint was that the dominant tenament was enjoying the easementary right of flowing all rain and flood water through the three outlets in the boundary-wall towards the servient tenament since more than 50 years back, and has matured right of easement. The original suit was filed on 25-11-1982 with an application for interim injunction. The Court was pleased to issue an ad-interim injunction on 26-111982 as under :- ". . . . . . . . . . . . Issue notice, fixing 20-12-1982 for objection and disposal. Meanwhile the defendant No. 1 is restrained from closing the outlets in suit or from obstructing the flow of water from these outlets or get the same done through defendant No. 2. . . . . . . . . . . . " the injunction order was communicated by registered post on 26-11-1982 and personally served to respondent No. 3 on 3-12-1982. The defendant No. 2 Sri S. A. Khan was also served with a copy of the interim injunction.
( 2 ) IT is said that the defendant-respondent No. 3 of the writ petition had visited from Bombay between 3-12-1982 to 20-12-1982. On 20-12-1982 an application was filed on behalf of respondent No. 3 in the civil suit seeking time for filing objection to the injunction application which was allowed. Winter vacation in the meantime intervened. The petitioner had submitted an application on 21-12-1982 for issuing the commission for reporting the spot position at the disputed site. Sri Naresh Kumar was appointed as an advocate-commissioner for the said purpose. In between 20-12-1982 and 25-12-1982, respondent No. 3 and Sri S. A. Khan, the architect, got the land of the servient tenament filled and covered with earth up to such high that all the three outlets in the eastern boundary of the petitioners dominant tenament were closed. The advocate-commissioner submitted a report that the level of the land was raised freshly by filling by earth. The report was submitted before the court on 2-2-1983.
( 3 ) THE petitioner filed an application under O. 39, Rule 2a of the Code of Civil Procedure, C. P. C. in brief, for action against respondent No. 3. Opposite party filed his objection in the said case on 26-4-1983.
( 4 ) IN the proceedings under O. 39, R. 2a, affidavits were filed by the parties. The petitioner flied his personal affidavit and affidavit of Smt. Parwati Devi Jha, owner of the building and the affidavit of Sri S. A. Khan architect, were also filed, Sri S. A. Khan in his affidavit stated that he received the injunction order issued in Suit No. 461 of 1982 and he had admitted that under the instructions of the defendant No. 1, he had got the earth filled in the open strip of the land lying in the rear of the building behind the building of defendant No. 1 and towards the eastern boundary-wall or Sri K. L. Virmani and raised the level thereof, blocked the mo
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