ORAL ORDER

1.1 The present Appeal from Order is filed under Order XLIII Rule (1)(r) of the Code of Civil Procedure, 1908, by the appellant – original plaintiff being aggrieved by and dissatisfied with the impugned order dated 01.03.2024 passed by the learned Chamber Judge, City Civil Court, Ahmedabad in Civil Suit No.989 of 2023, whereby the learned trial Court has rejected the application Exhs.6 and 7 for notice of motion.

1.2 Further, the learned trial Court has, while exercising the powers under Section 151 of the Code, has vacated the order of status-quo granted earlier vide order dated 15.08.2023 passed on application Exh.15, on condition to file an undertaking by the defendant not laying down the pipelines for installing western toilet for their use from the inner part of the premises of the plaintiff but use the outer part of the premises of the plaintiff.

1.3 Further, the learned trial Court has sent the matter to the mediation center for amicable settlement as the parties are the owners of the properties and they are neighbours since long.

2.1 Learned advocate Mr.J.F. Mehta for the appellant has contended that the trial Court has found that prima facie case is made out in favour of the plaintiff and the defendant has no right to lay down the pipeline through the plaintiff’s premises, however, the learned trial Court has committed an error in considering the factors of hardship and balance of convenience in favour of the defendant. He has further submitted that the observations made in the impugned order amounts to re-writing of the contract, more particularly the direction given in the operative portion while exercising the powers under Section 151 of the Code, which is not permissible when the Court considers the application under under the provisions of Order XXXIX Rule 1 & 2 of the Code. He has therefore submitted that the learned trial Court cannot exercise the powers under Section 151 of the Code.

2.2 He has also submitted that at the time of purchasing the premises by the defendant, the same situation was prevailing and at that point of time, the mother of the defendant was also aged and thereafter, there is no change in circumstances. He has submitted that the learned trial Court has committed an error by considering the hardship and balance of convenience in favour of the defendant. He has also submitted that there is further anxiety that if such injunction is not granted and the order passed under Section 151 of the Code is maintained, then it will be cited as precedent in future for similar nature of incident. Therefore, he has submitted that prima facie, the Court has committed an error in coming to the conclusion that no injunction can be granted. On the contrary, once the Court has come to the conclusion that there is prima facie in favour of the plaintiff, the Court should grant injunction and therefore, he prays to allow this appeal.

3.1 I have considered the submissions made by learned advocate for the appellant. I have also considered the documents available on record. I have perused the impugned order passed by the learned trial Court. While deciding the application of interim injunction under Order XXXIX Rule 1 & 2 of the Code, the trial Court has to keep the provisions of Section 151 of the Code in mind. Under the provisions of Order XXXIX Rule 1 & 2, the Court has to consider all the factors simultaneously i.e. prima facie case, balance of convenience and irreparable loss, if injunction is not granted. Further, the Court has to take care of the situation considering the facts of the case in mind.

3.2 Further, the present case is based on the apprehension that the defendant is trying to lay down the drainage pipeline through the premises of the plaintiff which creates hardship as well as nuisance to the plaintiff. The learned trial Court has also considered the fact that the defendant is putting up the construction for the purpose of bathroom, as the mother of the defendant is aged about 80 years and t