HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition Misc. Single No. 694 of 2025

04 September, 2025

Tika Ram Budhlakoti

--Petitioner

Versus

Leela Sah & others

--Respondents

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Presence:-

Dr. K.H. Gupta, learned counsel for the petitioner.

Mr. B.D. Pande and Mr. Bharat Tewari, learned counsel for

the respondent nos.1, 2 & 3.

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Hon'ble Pankaj Purohit, J.

By means of the present writ petition, petitioner

has sought the following reliefs:-

“(i)- Issue a writ, order or direction in the nature of certiorari calling for record and quash/set-aside the judgment and order dated 03.12.2024 (annexure no.1) passed by learned District Judge, Nainital in Miscellaneous Civil Appeal No.11 of 2023, Smt. Leela Sah

& others vs. Shri Tika Ram Bhudhlakoti & others.

(ii) Issue a writ, order or direction directing the respondents to restore the position as existed on 20.12.2023 (annexure no.4) (the date of temporary injunction order) over the suit property in Civil Case No.72 of 2023 “Tika Ram Budhlakoti vs. Smt. Meena Sah &

others.”

2. Facts of the case are that petitioner, Shri Tika Ram Budhlakoti, purchased a property named 'Mohan Niwas' in Nainital from Late Mrs. Ganga Devi Sah through a registered Sale Deed dated 19.10.1996. The property included one room each on the ground and first floors, and a tin-shed on the roof of the first floor where a tenant lived. The sale deed explicitly granted the petitioner exclusive rights over the roof and stated that neither the seller nor the tenant would carry out any construction on the roof and if the tin-shed were ever sold, it would be sold only to the petitioner. After the seller’s death in 2013, the

respondents attempted to sell or construct on the rooftop in violation of the Sale Deed. In 2023, the petitioner filed Civil Suit No. 72 of 2023 seeking ownership declaration and an injunction. On 20.12.2023, the trial court granted a temporary injunction restraining any new construction. However, despite the trial court's order, the respondents proceeded with illegal construction. On 08.01.2024, the District Level Development Authority (DLDA) issued a demolition order. The petitioner then filed an application under Order 39 Rule 2(A) CPC for contempt, which was registered as Miscellaneous Case No. 05/2024. Meanwhile, the respondents filed Miscellaneous Civil Appeal No. 11 of 2023 against the temporary injunction. On 03.12.2024, the appellate court allowed the appeal and modified the injunction by passing a status quo order in favor of the respondents. Feeling aggrieved, petitioner is before this Court.

3. Learned counsel for the petitioner argued that appellate court’s order is unjust because he was in lawful possession of the roof as per the Sale Deed. He further argued that illegal construction was done after the injunction order. Further, the status quo order should not legitimize or protect post-injunction illegal construction.

4. Per contra, learned counsel for respondent nos.1, 2 & 3 submits that the appellate court’s order dated 03.12.2024, modifying the injunction to a status quo order, was passed after due consideration of both parties’ rights and possession. Status quo ensures no further changes are made and does not legalize any construction, it simply preserves the situation as it existed on the date of appellate proceedings.

5. Heard learned counsel for the parties and carefully perused the material available on record, this Court is of the view that the appellate court, being a competent authority, has exercised its jurisdiction under Order 43 Rule 1 CPC to modify the interim relief. The substitution of the injunction with a status quo order cannot be said to be without jurisdiction or patently perverse. The petitioner retains the liberty to pursue appropriate remedies before the trial court, including pressing his application under Order 39 Rule 2(A) CPC, which is already pending.