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2017 Supreme(UK) 238
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
U.C. Dhyani, J.
Durga Bahadur – Petitioner
Versus
Smt. Asha Thapa and Another – Respondents
Writ Petition No. 295 (M/S) of 2016
Decided On : 26-07-2017
For the Petitioner: Mr. Tapan Singh.
For the Respondents: Mr. Rajendra Dobhal and Mr. Devang Dobhal.
The court emphasized the importance of determining the nature of the pathway and the availability of alternative access in cases involving injunctions.
Headnote:
certiorari - Civil Injunction - Order 39 Rules 1&2 CPC - Summary
Fact of the Case:
The petitioner sought a writ to quash an order for permanent prohibitory injunction against the respondents, who threatened to demolish the petitioner's wall. The trial court granted interim relief, but the lower appellate court reversed the decision, stating that the pathway was public and the defendant had no alternative way to enter his house.
Finding of the Court:
The trial court granted interim relief based on the existence of a wall and the defendant's claim of unauthorised construction. The lower appellate court reversed the decision, stating that the pathway was public and the defendant had no alternative way to enter his house.
Issues: The main issue was whether the pathway was public or belonged to the petitioner, and if the defendant had an alternative pathway to enter her house.
Ratio Decidendi: The court considered the existence of the wall, the findings of the Ameen's report, and the previous judgment declaring the pathway as public in reaching its decision.
Final Decision: The writ petition was dismissed, but the trial court was directed to decide the suit for permanent prohibitory injunction expeditiously.
U.C. Dhyani, J.
1. By means of present writ petition, the petitioner seeks a writ, order or direction in the nature of certiorari quashing the impugned order dated 03.02.2016, passed by learned I Addl. District Judge, Dehradun, in Misc. Civil Appeal No. 81 of 2015, Smt. Asha Thapa vs. Durga Bahadur and Another (Annexure 7 to the writ petition).
2. Plaintiff-petitioner filed a civil suit for the relief of permanent prohibitory injunction against defendants-respondents in the court of Civil Judge (Jr. Div.), Dehradun, restraining the defendants from interfering in the possession of the disputed property detailed and specified at the foot of the plaint. Plaint map was also annexed. An application under Order 39 Rules 1&2 CPC was also filed.
3. According to the petitioner, the land in dispute was purchased by him through registered sale deed dated 20.10.1986. The petitioner also constructed his house and erected boundary wall over the land purchased by him. In the sale deed, 8 feet wide pathway has specifically been mentioned. In the year 2000, Smt. Bhunti and another threatened to close the pathway of the petitioner. Petitioner filed a Civil Suit No. 08 of 2000, Durga Bahadur vs. Smt. Bhunti and Another, which was decreed by trial court. First appeal against the same was also dismissed, vide judgment and decree dated 06.05.2015. The respondents, thereafter, threatened to demolish the wall of the petitioner. Petitioner filed a civil suit for permanent prohibitory injunction against the respondents bearing O.S. No. 233 of 2015, Durga Bahadur vs. Asha Thapa and Another, with a prayer not to demolish the wall of the petitioner.
4. Petitioner also moved an interim relief application supported by an affidavit, whereby an interim relief was sought that during the pendency of the suit, the respondents be restrained from demolishing the wall of the petitioner. Sub Divisional Magistrate, Dehradun, vide order dated 24.07.2015, passed an order to demolish the wall. It is alleged that the S.D.M. had no authority to pass such an order. The petitioner filed voluminous documents along with the plaint. Copy of registered sale deed dated 25.10.1986 and copy of original suit no. 08 of 2002 along with copy of judgment dated 28.05.2004 were among those documents filed with the plaint. Petitioner also moved an application for spot inspection through civil court Ameen, who inspected the spot and submitted his report on 31.08.2015.
5. Plaintiff proved his prima facie-case and balance of convenience etc. Respondent no. 1 filed her objection against the interim relief application supported by an affidavit. Learned trial court, after considering the rival submissions, allowed the interim injunction application, vide order dated 15.09.2015. Feeling aggrieved by the said order, respondent no. 1 preferred a Misc. Civil Appeal No. 81 of 2015, Smt. Asha Thapa vs. Durga Bahadur and Another. Respondent no. 1 is daughter-in-law of respondent no. 2, who are jointly living together in a house. Respondent no. 2 did not challenge the order dated 15.09.2015. Respondent no. 2 filed a suit against the petitioner, whereby he claimed pathway over petitioner’s property. The suit filed by respondent no. 2 has been dismissed.
6. It is the submission of learned counsel for the petitioner that learned lower appellate court, without reversing the findings recorded by the trial court and without considering the fact that the wall of plaintiff-petitioner does not exist on spot, committed mistake in holding that the defendant has no alternative pathway by passing a cryptic and unreasoned order on 03.02.2016. It is the submission of learned counsel for the petitioner that the respondents have another pathway to approach their house. It is also the submission of learned counsel for the petitioner that the lower appellate court has conducted a mini trial.
7. Learned trial court, in its order dated 15.09.2015, has held that 61 feet long wall is existing on the spot which fact is est
