1991 PLP 305 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑The petitioners are the owners of the Ritz Hotel, Murree and the steep incline was purchased by the respondents 1 to

2. The petitioners' hotel is contiguous to the land purchased by the aforesaid respondents. The petitioners filed a suit in the Court of Civil Judge, Murree, for perpetual injunction restraining the respondents 1 to 6 amongst others, from digging on the steep incline adjacent to Ritz Hotel and from cutting trees and from interfering with the sewerage line of the Ritz Hotel. Alongwith the suit an application under Order 39 Rules 1 and 2 for a temporary injunction restraining the respondents 1 to 6 from digging the steep incline and from cutting trees was also filed. The application was contested by the respondents 1 and

2. The respondents had submitted a plan for constructing a double‑storeyed building on the said land. The learned trial Judge dismissed the application with a direction that the respondents are required to provide a reasonable retaining wall towards hill side, behind the proposed construction as well not to excavate any stone. This order was challenged by the petitioners in appeal which was disposed of by the Additional District Judge. However, the learned Additional District Judge ordered the respondents 1 and 2 to construct the retaining wall according to the rule laid down by the Provincial Building Department. The petitioners challenged these two orders before the High Court in a revision petition which was also dismissed. Hence this petition for leave to appeal against the aforesaid judgment of the High Court.

2. We have heard the learned counsel for the parties. It is the contention of the learned counsel for the petitioners that the easement right has been created in favour of the petitioners under Section 7 of the Easements Act. In law, the petitioners are entitled to a support for the purpose of retaining their present building, namely, the Ritz Hotel. He has referred to Subbarayudu v. Secy. of State A I R 1927 Madras 988; Tamluk Manufacturing Co. v. Nabadwipchandra A I R 1932 Calcutta 542; Prasanna Deb Raikat v. D.H. Railway Co. A I R 1936 Calcutta 37 and Sampuran Singh v. Arjan Singh A I R 1961 Punjab 414.

3. The learned counsel for the respondents has submitted that Section 7 of the Easements Act is not applicable. The petitioners' case at the best rests on the provision of Section 15 of the Easements Act but the petitioners absolutely failed to prove their case as a new plea has been set up in this petition. He has drawn our attention to the plaint of the civil suit. The learned counsel has referred to Bhagwan Das v. Khurshed Begum A I R 1929 Allahabad 885, Rasiklal v. SavaiW A I R 1955 Bombay 285 and Gopalakrishna Panicker v. T.Devaswom A I R 1959 Kerala 202.

4. The learned counsel for the petitioners has conceded that he has not taken the grounds about the septic tank, sewerage line and cutting of trees which have been averred in the plaint which is pending before the trial Court. The parties would lead evidence in support of their respective pleas and the legal pleas advanced by the parties in this Court would also be considered by the trial Court. We decline to make any observation in this regard so that the trial Court may not be influenced by such observations.

5. On the question of easement, the learned High Court has observed that "the petitioners may have some right of lateral support in the context of natural easement, as envisaged by section 7 of the Easements Act, but that point has not been specifically agitated in the pleadings by them and their contention of easement in the plaint remains confined only to that of the view of the hotel from Jinnah Road??.."

6. The learned Civil Judge in his order observed that respondents 1 to 5 undertook to remove the septic tank and sewerage line of their opponents land in accordance with law. With regard to the cutting of trees it had been admitted by both the parties that the trees had already been cut.

7. The Additional District Judge visited the site and observed that:‑‑ "(i) apparently there was no septic tank and sewerage line passing through the' land of the respondents, rather, septic tanks were visible in the adjacent land of the appellants (petitioners); (ii) the building of the Ritz Hotel was at some distance from the disputed plot but the boundaries were adjacent to each other; (iii) the building of the Ritz Hotel of the petitioners was not visible from the Jinnah Road and vice versa; (iv) the trees had already been cut from the land of the respondents; and (v) some digging of earth and excavation of stones had already been carried out by the respondents on their land."

8. The learned High Court appointed an engineer with the consent of the parties who had submitted his report. This report was also taken into consideration by the High Court.

9. The three Courts below after examining the material before them have come to the conclusion that there does not exist prima facie a case in favour of the petitioners. The balance of convenience also does not lie in their favour. The Courts have considered all the aspects of the case and an equitable relief has been refused to the petitioners. The Courts have directed the respondents that they would provide an artificial support and they had undertaken not to damage the property of the petitioners. It is the practice of this Court not to interfere in interlocutory matters as has been held in Abdul Rehman Mayat v. Wealth Tax Officer 1988 S C M R 1722, and Khan Baig v. Irshad Begum 1988 S C M R 1775. We see no force in this petition and the same is dismissed. AA./G‑277/S ????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.