Ishar Singh and Sons and Another vs Swami Vivek Nand Ji Maharaj and Others

Ajay Kumar Mittal, J.—The petitioners are aggrieved against the order dated 21.1.2009 passed by the Additional District Judge, Amritsar whereby appeal filed by the defendants against the order dated 25.3.2008 of the Civil Judge (Junior Division), Amritsar, granting interim injunction in favour of the plaintiff, was dismissed.

Plaintiff-respondent filed a suit for permanent injunction to the effect that the defendants be restrained from prohibiting him from setting up a parapet wall on the first floor of the property No. 1354/VIII-12 to 1357/VIII-12 situated at Amritsar. The plaintiff also moved an application for granting temporary injunction. The Civil Judge (Junior Division), Amritsar, on consideration of the pleadings of the respective parties, i.e. the application for grant of temporary injunction, reply filed to the said application and the written statement whereby the defendants raised a counter claim, accepted the application vide order dated 25.3.2008 and consequently restrained the defendants from prohibiting the plaintiff from setting up a parapet wall on first floor of the property No. 1354/VIII-12 to 1357/VIII-12 fully described in the site plan appended with the plaint and providing a door to enclose the staircase leading to the terrace above the four shops or interfering in the possession of the plaintiff on the terrace except in due course of law.

The Additional District Judge, Amritsar upheld the aforesaid order passed by the trial court and dismissed the appeal carried by the defendants, vide order dated 21.1.2009, observing as under:

The Learned Counsel for the plaintiff has placed on record photo copy of rent note executed by the defendants. Perusal of which shows that defendants Nos. 1 to 3 have been inducted as tenants in duly constructed shops at ground floor only. While defendant No. 4 has been inducted as tenant in an open shed along with open space adjoining thereto. As per Section 92 of Indian Evidence Act when the terms and conditions have been reduced into writing then oral evidence with regard to those terms is not admissible except in some exceptions. All the rent notes have clearly laid down that tenants/defendants are being given only ground floor of the property. Learned Counsel for the defendants argued that staircase and common terrace of all the four tenancy premises is in their possession, however, they have not placed on record any documents to show their possession. Learned Counsel for the defendants further argued that the present plaintiff is not entitled to file the suit. However, perusal of trust deed dated 25.8.1969, supplementary deed of Trust dated 24.10.1989 and General Power of Attorney dated 25.3.2000, copy of resolution dated 14.10.2004 shows that plaintiff is duly authorized to file the present suit. Counter claim have failed to establish at this stage a prima facie case of their possession. Accordingly, this Court is of the considered view that defendants have no right to restrain the plaintiff from constructing the parapet wall and they have no right to demolish the same and since they are tenants at the ground floor only having no right to the staircase also Accordingly, a prima facie case is made out in favour of the plaintiff. Balance of convenience also lies in his favour. The plaintiff shall suffer an irreparable loss if the sought injunction is not granted.

Learned Counsel appearing for the petitioners though vehemently submitted that both the courts below fell in error in granting temporary injunction as no prima facie case was made out for granting the injunction. The Counsel, however, could not point out any illegality or impropriety in the approach adopted by the trial court in granting the temporary injunction which was duly approved by the Additional District Judge. This Court also finds no patent error o law or perversity in the impugned orders so as interfere there-with.

In view of the above, there is no merit in the revision and the same is accordingly dismissed.

Nothing said herein shall be construed as an expression of opinion on the merits of the controversy raised in the suit.