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2006 Supreme(MP) 15
2006(2) JLJ 210
K.K. Lahoti, J.
Shashi Agrawal (Smt.) v. Smt. Usha Agrawal and another
Writ Petition No. 8958 of 2005: against the order of
IX Additional District Judge, Jabalpur, passed in
Miscellaneous Civil Appeal No. 63 of 2005;
Decided on 3.1.2006.
R.K. Verma for petitioner;
A.K. Jain for respondent No.1; Sharad Verma for respondent No.2.
Headnote:Civil P.C., 1908 -- O. 39 Rr. 1 and 2 -- windows, ventilators and sky lighters existing in the building of plaintiff for quite a long time -- if defendant is allow to construct and these windows etc. are closed, position shall become irreversible by the time the suit is decreed -- plaintiff shall be deprived of right of air and light -- injunction should be granted imposing conditions.
Facts as stated by the plaintiff before the trial Court are that the plaintiff is owner of the house property bearing House No. 739, 739/1 situated at Karamchand Chowk, Marhatal, Jabalpur. This house was succeeded by her by a Will dated 5.12.1987 executed by her father-in-law late Rameshwar Prasad. Before getting the aforesaid property, a hotel in the name of ‘Standard Hotel‘ was running in the property. In the eastern side of the house, there are window, sky lighters and ventilators affixed out of which light and air is being enjoyed. Defendant No.1 purchased an eastern side house and started raising construction. Because of the construction windows sky-lighters and ventilators shall be closed and the plaintiff would be deprived with the easementary right of light and air which is irreparable loss. Defendant No.1 is not raising construction as per permission granted by the Municipal Corporation. On the aforesaid ground, the suit was filed and an application for issuance of temporary injunction during the pendency of the suit was also filed. [Para 2
Held: It is not the case of the respondent that in recent past, plaintiff has opened windows, ventilators or sky-lighters. Though in this regard there is no specific pleading of the plaintiff also claiming easementary right in this regard, but existence of windows, ventilators and sky lighters for a quite long time is not in dispute. If any construction is permitted to the respondent No.1 at this stage by which aforesaid windows, ventilators and sky-lighter are closed, position shall become irreversible in case the suit is decreed and during pendency of the suit, petitioner shall be deprived of the right of air and light. Aforesaid is a continuous wrong while the petitioner is entitled for light and air in day to day use. In these circumstances. petitioner was entitled for temporary injunction during pendency of the suit. Whether the plaintiff has acquired prescriptive right of easement or is entitled to easement of necessity is yet to be decided by the trial Court. But merely on existence of windows ventilators or sky-lighters for a long period Petitioner was entitled for a temporary injunction during pendency of the suit. But in case respondent No.1 is restrained to raise construction during the pendency of the suit. petitioner is under an obligation to compensate the respondent No.1 in case the suit of the plaintiff fails. In aforesaid circumstances. during pendency of the suit, petitioner is entitled for temporary injunction but on certain terms. [Para 12
Depriving the petitioner from light and air is an irreparable loss which cannot be measured in terms of money. Light and air is a need of day-to-day life and cannot be measured in terms of money. In these circumstances, if petitioner is deprived with aforesaid. irreparable loss will be caused to the petitioner and not to the respondent No.1, as respondent No.1 can be compensated in term of money, in case suit is dismissed. Balance of convenience is also in favour of the petitioner whose windows. ventilators and sky-lighters are going be closed by respondent No. 1. 2005(1) MPU 447 (SC) and AIR 1985 Delhi 293 relied on. [Para 16
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1. Petitioner aggrieved by the order Annexure P-7 dated 25.7.2005 in Civil Suit No. 318A/2005 by IX Additional Judge to the Court of District Judge, Jabalpur, in Misc. Civil Appeal No. 63/2005, has filed this petition. Both the Courts by the aforesaid orders have refused to grant temporary injunction in favour of the petitioner. .
2. Facts as stated by the plaintiff before the trial Court ere that the plaintiff is owner of the house property bearing House No. 739, 739/1 situated at Karamchand Chowk, Marhatal, Jabalpur. This house was succeeded by her by a Will dated 5.12.1987 executed by her father-in-law late Rameshwar Prasad. Before getting the aforesaid property, a hotel in the name of 'Standard Hotel' was running in the property. In the eastern side of the house, there are window, sky lighters and ventilators affixed out of which light and air is being enjoyed. Defendant No.1 purchased an eastern side house and started raising construction. Because of the construction, windows, sky-lighters and ventilators shall be closed and the plaintiff would be deprived with the easementary right of light and air which is irreparable loss. Defendant No.1 is not raising construction as per permission granted by the Municipal Corporation. On the aforesaid ground, the suit was filed and an application for issuance of temporary injunction during the pendency of the suit was also filed.
3. The defendant-respondent contested the case on the ground that after obtaining due sanction and permission from Municipal Corporation, defendant No.1 is raising the construction. Plaintiff, just to obstruct the construction, has filed the suit. In the windows, some coolers, air-conditioners are affixed and some windows are open. The plaintiff is having light and air from the other side. The ground floor was also constructed just adjoining to the plaintiff's building but no objection was raised by the plaintiff at the time of the construction of the ground floor. The house is situated in the commercial area in which there is non-provision for leaving any space between the two buildings. As per trend all the constructions are being raised adjoining to the building. On the aforesaid ground, suit and the applications both were contested by the respondent.
4. The trial Court found that:
(i) The plaintiff has not pleaded that since last 20 years she is using light and air from the window peacefully and uninterruptedly, though it is pleaded that in the house, Standard Hotel is being run and after Will dated 5.12.1987 she is exclusive owner of the property.
(ii) At the time of the construction of the ground floor, plaintiff has not raised any objection in respect of such easement while at the ground floor, both buildings are adjoining.
(iii) The suit building is situated in the dense populated area and in commercial area. At that place all the constructions are being made just adjoining to the building.
(iv) That, defendant No.1 has purchased the property on which he has a right to construct.
(v) That the defendant No.1 has obtained due permission from the Municipal Corporation and if the construction is restrained then it will deprive the defendant No.1 from the utility of the property.
(vi) That the plaintiff is having alternative arrangement of light and air by using fans and coolers from the windows situated on the other side of building except on the eastern side and there is no obstruction for the light and air.
On the aforesaid grounds the trial Court rejected the application under Order 39 Rules 1 & 2 CPC.
5. Against the order of the trial Court, dated 25.7.2005, petitioner preferred an appeal before the IX Additional Judge to the Court of District Judge, Jabalpur. The appellate Court decided the appeal vide order dated 16.8.2005 on following findings:
(a) That. the plaintiff has not pleaded right of easement specifically in respect of existence of windows, ventilators and sky lighters from the time of her predecessors.
(b) There is no specific pleading in respe
