2008 PLP 1496 (CLC)

SYED ASGHAR HAIDER, J.

The respondents Nos.2 and 3 filed a suit for permanent injunction, along with the suit an application under Order XXXIX, rules 1 and 2, C.P.C. was filed, wherein the following prayer was made:

The petitioners/defendants contested the suit by filing written statement and reply, the trial Court thereafter dismissed the application filed by the respondents. Aggrieved thereof the respondents filed an appeal, it was allowed in the following terms:

"I am of the considered view that the appellants have prima facie good arguable case in their favour. Balance of convenience also leans in their favour, if the drain is not constructed along with their outer wall; they would suffer an irreparable loss. Therefore, the order of learned trial Court is set aside and the respondents are directed not to construct the drain from the mid of the passage, rather they are directed to construct the same along with the outer wall of the appellant from the starting point of the land left by the appellants till the end point of aforementioned property but it is obvious that due to scheme passed by respondent No.1, the respondent No.2 would suffer monetary loss due to the curve of the construction of this drawn as requested by the appellant. Therefore, the appellants are directed to pay expenditures of the construction of this drain to the extent of curve which has not been sanctioned by the respondent No.1. With these observations his appeal is accepted and the order of learned trial Court is set aside. File of this appeal be consigned to the record room after its due completion. The petitioner is aggrieved of the stated judgment. Hence the present petition.

2. The learned counsel for the petitioner contended that he was required to- construct the disputed drain in accordance with the approved site plan on public property, he has constructed around 600 ft of drain and only 200 ft of the same are required to be constructed, which construction has been stayed due to the order passed by the learned lower appellate Court. According to the learned counsel, the impugned order is totally illegal, without jurisdiction and not in accordance with the prayer made by the plaintiff/respondent in the injunction application. The lower appellate Court has not only granted an injunction but issued a direction for deviation from the original site plan, which is illegal and without jurisdiction.

3. The learned counsel for the respondents Nos.2 and 3 defended the impugned judgment and stated that the question of deviation of the site plan favours not only the respondent No.1 but also is in the interest of general public, if the original plan is allowed to be carried out, it would create great chaos and cause a lot of inconvenience to the residents in the locality, therefore, the same be not permitted to be constructed.

4. It is worthwhile to mention here that only respondents Nos.2 and 3 contested the petition, the respondent No.1 did not care to appear and hence is proceeded against ex parte.

5. I have heard the learned counsel for the parties at length and perused the impugned judgment as well as the order passed by the learned trial Court.

6. The question to be addressed in the present petition is simple. A suit for permanent injunction was filed by the plaintiffs/respondents Nos.1 and 2 wherein an application under Order XXXIX, rule 1 and 2 was made. The prayer in the stated application is limited only to the following effect:

The learned trial Court after hearing both the parties was persuaded not to grant the relief prayed for in its discretion. The lower appellate Court not only set aside the order of the trial Court but ventured into a territory which was beyond its jurisdiction and realm. It was authorized under law only to adjudicate the appeal emanating of the application under Order XXXIX, rules 1 and 2, C.P.C. and confine itself to the prayer made thereon. Ironically it lost track of the stated prayer and went on to issue a direction which is totally illegal and without jurisdiction. It was vested absolutely with no authority to order redesigning of the drain and issue a direction for collection of payment/expenditure etc. The order is not only bad in law but is patently illegal and without jurisdiction. Therefore, on this short ground alone, the same is not tenable. The order passed by the learned trial Court is well reasoned and has taken into account the parameters required to grant injunctive relief. The same is in consonance with law. Resultantly this petition is allowed, the impugned order passed by the lower appellate court is set aside and the order of the trial Court is restored.

7. Before parting with this order, it is clarified that any observation made in the instant order will not impede or cause prejudice to the respondents in their lawful right to agitate the matter for redressal of any genuine public grievance before any designated forum. M.H./M-252/L Revision allowed.