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2024 Supreme(Online)(GUJ) 417
HIGH COURT OF GUJARAT
JCD
JAYLAL RAMSWARUP NAI – Appellant
Versus
KISHANLAL RAMSWARUP NAI – Respondent
R/APPEAL FROM ORDER NO. 71 of 2022, CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
The court has the power to modify a lower court's order granting temporary injunction to balance the interests of both parties.
Headnote:
Civil Procedure - Order 43 Rule 1(r) CPC - Temporary Injunction
Fact of the Case:
The plaintiff filed a suit seeking vacant and peaceful possession of a shop on the 1st floor of a disputed property, which was in possession of the defendant. During the pendency of the suit, the defendant filed a notice of motion seeking a temporary injunction to restrain the plaintiff from dismantling the defendant's shop. The lower court granted the temporary injunction in favor of the defendant.
Finding of the Court:
The court modified the lower court's order to allow the plaintiff to carry out superficial repairing work on the 1st floor of the disputed property, but any substantial repairing that may affect the defendant's shop would require permission from the municipal authority. The court also directed the parties to explore the possibility of settlement through mediation.
Issues: Whether the lower court's order granting a temporary injunction in favor of the defendant should be modified.
Ratio Decidendi: The court has the power to modify a lower court's order granting temporary injunction if it finds the order to be too broad or restrictive. The court should balance the interests of both parties and allow reasonable repairs to be carried out, while protecting the defendant's possession of the shop.
Final Decision: The court modified the lower court's order to allow the plaintiff to carry out superficial repairing work on the 1st floor, but any substantial repairing that may affect the defendant's shop would require permission from the municipal authority. The court also directed the parties to explore the possibility of settlement through mediation.
ORDER
1. Heard learned advocate Mr. Suren Shah for the appellant and learned advocate Mr. Atit Thakore for the respondent.
2. By way of this AO filed under Order 43 Rule 1(r) of the CPC, the defendant of the suit has taken out the Notice of Motion at Exhs.32/33 seeking temporary relief against the plaintiff with the relief to restrain the plaintiff from dismantling the shop of the defendant stands on the 1st floor of the disputed property.
3. The learned City Civil Court granted Notice of Motion in favour of the defendant of the suit and against the plaintiff. The operative order reads as under:-
- “The Notice of Motion Exhs.32 and 33 stands allowed, the plaintiff is directed to maintain status quo over the first floor of the suit property till the disposal of the present civil suit.
- No order as to costs.”
4. The plaintiff namely Jaylal Ramswarup Nai and defendant Kishanlal Ramswarup Nai are the real brothers. Kishanlal Ramswarup Nai has shop on the 1st floor of the disputed property. The plaintiff Jaylal Ramswarup Nai filed suit before the learned City Civil Court seeking vacant and peaceful possession of the shop, which is in possession of defendant Kishanlal Ramswarup Nai.
5. During the pendency of the suit, Notice of Motion was moved at Exhs.32/33 by the defendant. The learned Court after noting the variance of the parties, passed the above stated order.
Therefore, this AO.
6. Learned advocate Mr. Suren Shah for the plaintiff submits that the plaintiff is not going to demolish the shop of the defendant without following due procedure of law, but the plaintiff is only going to carry out repairing work in the 1st floor of the disputed property, which is in possession of the plaintiff.
The relief claimed by the defendant in Notice of Motion is in the actual words reads as under:-
- “It is prayed to pass temporary injunction order in favour of the Respondent and against the Plaintiff that no modification and alteration as well as any kind of temporary or permanent construction be carried out in the property located on the first floor above the shop of the Respondent situated at Municipal Tenement No. 0206-21-596-001-C, Tenement No. 0206-21-0596- 0008-D and 0206-21-0596-0107-I of Balister Chawl of Sugarnagar located in Meghaninagar area in Omnagar Ward of North Zone of Ahmedabad Municipal Corporation. “
7. After referring to relief claimed by the defendant in the Notice of Motion and the statement of learned advocate Mr.
Suren Shah, this Court is of the opinion that the impugned order deserves to be modified to the extent that instead of maintaining status quo over the 1st floor of the disputed property, the plaintiff, who is in possession of the 1st floor of the disputed property could carry out repairing work if it is superficial. And if it is required some substantial repairing, which may affect the shop, which is in possession of the defendant, then it shall be carried out only after the permission obtained from the AMC.
8. Since the dispute is between two brothers, let there be mediation between the parties to explore possibility of settlement in Civil Suit No.1564 of 2006 through the Mediation Center annexed with the learned City Civil Court. The parties to the proceedings are directed to explore possibility of settlement through the Mediation Center annexed with the learned City Civil Court. Necessary order shall be passed by the learned City Civil Court to send the matter for mediation.
9. With this, present AO stands disposed of. Consequently connected civil application also stands disposed of.
