K. Raju vs Moses Sebastian

The petitioner is the plaintiff in a suit filed for specific performance of an agreement as well for permanent prohibitory injunction pending before the

Munsiff Court, Punalur as O.S. No. 121 of 2020.

Admittedly, plaint item No.1 property is owned and possessed by the petitioner and item No.2 property situated on the western side is owned and

possessed by the defendant/respondent. In the suit, the petitioner has filed a petition for temporary injunction as I.A. No. 1 of 2020 alleging that

excavation of earth adjacent to the compound wall situated on the western side of item No.1 property which separates it from item No.2 property has

caused damages to the wall and affected its lateral support. Excavation of earth was because of the construction of a residential building in the

property of the respondent. It is the case of the petitioner that when damage was caused to the compound wall, an agreement was executed between

the parties that the earth excavated in extensive depth will be restored by the respondent and thus no damage will be caused to the compound wall.

But against the stipulations in the agreement, the respondent has committed mischief and the wall is in such a condition that it may collapse at any time

especially during monsoon and hence the injunction petition was preferred. But the injunction petition was dismissed by the court below. Though the

petitioner has challenged the said order before the appellate court, he could not succeed. Hence this O.P. has been filed to set aside the order of the

trial court which was confirmed by the appellate court as well to direct the respondent to stop the construction of the building in his property.

The respondent was directed to stop construction of the building in his property at the time of admission and after his appearance, the matter was

heard.

It is relevant to note that a commission was taken out in the case to report about the present stage of the compound wall which separates the

properties. The Commissioner has reported that earth close to the foundation of the boundary wall has been removed and damages have been caused

to certain portion of the compound wall and it is specifically stated that there is every possibility to collapse the same during monsoon season as the

lateral support of it has been affected because of the removal of earth so close to the foundation. It is doubtless that when the soil or ground beneath

the wall is removed, it will collapse.

Admittedly the respondent is constructing a residential building in item No. 2 property. No doubt he has to continue with the construction of the

building, but he has no right to cause damages to the boundary wall at the same time. Now it is submitted by the learned counsel for the petitioner that

if sufficient support is provided to the compound wall and kept it in tact, he has no objection in continuing with the construction work of the residential

house in item No. 2 property.

The learned counsel appearing for the respondent has filed an affidavit undertaking not to cause any damages to the boundary wall. It is relevant to

reiterate paragraph 5 of the affidavit dated 03.12.2020 which reads as follows:

“I hereby undertake before this Hon'ble Court that I shall construct concrete retaining wall on the western side of Plaint schedule Item No.1

property where earth was removed by me for construction of house in plaint schedule Item No.2 property without prejudice to my right to contest the

suit. I also undertake that damages if any caused to the plaint schedule Item No.1 property in connection with the construction of the house in plaint

schedule Item No.2 shall be rectified by me at my cost. The construction of house and retaining wall will be carried on simultaneously.â€​

It is significant to note that the construction which is being effected by the respondent is his residential building. He has expressed his willingness to

continue the construction of the house as well the retaining wall simultaneously as an amicable solution. But as the construction being engaged by the

respondent is one of a residential building, it may take time and so, it may not be feasible or just and proper to permit the party to rectify the damages

already caused to the boundary wall simultaneously as suggested and that may delay the rectification of damages of the compound wall which is

already in a dangerous/dilapidated condition to a certain extent. As the Commissioner has reported that since the soil is removed upto the foundation of

the boundary wall on certain portion, the possibility to collapse the wall cannot be ruled out. Hence, I think that his O.P(C) can be disposed of as

conceded to by both sides.

The damages caused to the boundary wall which separates item Nos.1 and 2 properties can be rectified in the presence of the very same

Commissioner at the earliest, at any rate, within a period of seven days from today. After completion of the said work, the respondent can continue

with the construction work of his building. The court below shall issue warrant to the Commissioner to commence the work at the earliest. The

Commissioner thus appointed to ensure smooth progress of the work shall file a report regarding the said work, effected by the respondent. He is also

at liberty to approach the trial court for batta. The court below, depending upon the days spent by the Commissioner to oversee the construction work,

shall fix the batta of the Commissioner, by sharing the same equally.

Therefore, this Original Petition is disposed of directing the respondent to carry out the repair/rectification works of the retaining wall situated on the

western side of item No.1 property as agreed to by him in the affidavit dated 03.12.2020, but in the above terms. No costs.