1996 PLP 416 (SCMR)

FAZAL ILAHI KHAN, J.‑‑‑This appeal by leave of the Court is directed against the judgment of Lahore High Court, dated 16‑5‑1993 in Civil Revision No. 9/D of 1990.

2. Facts relevant to the present appeal briefly' stated are that the plaintiff is the owner of a house measuring 5 Marla as described by boundaries in the plaint. This house was constructed after obtaining proper sanction from the Cantonment Board, Rawalpindi (respondent No.2) somewhere in the year 1980. Towards the North of the house was a vacant plot owned by respondent No.

1. Respondent No.1 started construction of her house on the said plot and in the process dug the area adjoining the northern wall of the house of the appellant/plaintiff whereby the foundation of his house was exposed. Apprehending danger of collapse of the wall of his house the appellant, allegedly, approached respondent No. l for construction of a supporting wall to avoid any mishap to which she agreed. However, on her failure to do the needful the appellant filed the present suit for permanent injunction of the nature that defendant/ respondent No.1 be directed to restore the previous position of northern wall of his house and to direct her to construct a protection wall. It was further alleged in the plaint that appellant had left out an area of 2'‑1;2" X 30' towards the North of the wall in question for protection of the foundation but that too .was dug by the respondent.

3. The respondent in her written statement resisted the suit on various pleas and further denied that the appellant had left any land of his own for protection of his wall as the appellant raised construction over his entire property. She did not deny that she had dug the land adjoining the appellant's wail which she owned in order to give cover to flush‑pipe but denied that such digging had caused any damage to the appellant's property.

4. The learned trial Judge framed as many as seven issues of which the material one, for the purpose of this appeal, is issue No.6 which is as under: "Whether plaintiff is entitled to the relief prayed for?"

5. After recording evidence of the parties and perusal of the report of the local commissioner, appointed for the purpose of ascertaining the factual controversy at the spot, and recording his statement in Court, decided almost all the issues against the respondent but while giving finding on the issue reproduced above the apprehension of the appellant was found genuine and for that reason it was held that though for the time being there was no immediate danger of collapse of the construction raised by the appellant, the respondent was directed to adopt measures for the protection of the wall and at the same time the respondent was ordered to file a surety‑bond in the sum of Rs.20,000 with an undertaking that she will take all toe necessary measures to fully protect the wall owned by the appellant falling in between her house and the house of the appellant/plaintiff and in case due to her negligence any damage is caused to the said construction she will make good the loss. It was further directed that if respondent No.1 fails to furnish such surety‑bond in terms stated above within a month the plaintiff shall be entitled to get the protection wall, about 4‑1/2." wide constructed up to the uncovered area of 2 feet alongwith foundation of the said wall on the side of the house of respondent No.1, which according to report of the local commissioner got exposed due to act of respondent No.1., at his own costs and his suit for grant of mandatory injunction then shall be deemed to have been decreed. It was, however, further held that if the respondent No.1 furnish the surety bond with the undertaking according to direction of the Court the appellant's suit shall be deemed to have been dismissed.

6. Aggrieved by the judgment and decree dated 17th November, 1987, referred to above passed by the learned Senior Civil Judge, Rawalpindi respondent No.1 challenged the same in appeal before the Additional District Judge. Rawalpindi. It appears that the learned Additional District Judge on his observation, that the counsel for respondent No.1 made a statement before 'the Court that in case any loss is caused to the building of the appellant then respondent No.1 would make it good and she was prepared to make that loss. if occurred, the direction of the learned trial Court asking her to furnish the surety-bond was uncalled for. In case any loss is sustained the appellant can recover the damages from the respondent No. l in proper proceeding as liquidated damages suffered on account of respondent's action. In view of the observation the suit for injunction was found incompetent under section 56(1) of Specific Relief Act. Accordingly, the appeal was accepted on 8‑11‑1989 and in consequence the judgment and decree of the trial Court was set aside and the appellant's suit was dismissed. The learned High Court on revision filed by the appellant, on the assumption that petitioner had acceded the judgment and decree rendered by the learned trial Court, therefore it was not challenged in appeal and that the sole controversy in the appeal was confined to furnishing of bond.

7. The learned counsel for the appellant contended before us at the time of hearing of the petition for leave to appeal that the learned High Court erred in holding that the judgment under appeal was based on consent of the parties thereby erroneously refused to decide the matter on merits and dismissed the revision petition. Leave was granted after perusal of the statements of the parties recorded in appeal wherefrom it transpires that the appellant never consented to the passing of the decree in terms stated rather it was prayed that the appeal be decided on merits.

8. After hearing the learned counsel for the parties and perusal of the record there is no denial of the fact that the appellant had constructed his house somewhere in 1980. Subsequently when respondent No.1 started construction of her house she dug the land adjoining the house of the appellant to such depth, no doubt on her own land, that it exposed the wall of the appellant unprotected and exposed with a visible apprehension that it may fall at any time. This fact is evident from the report of the local commissioner, to which no objection was raised for either side, and was accepted by the trial Court and confirmed in appeal. The relevant part of the report of the local Commissioner, helpful for decision of the present controversy, is reproduced as under:‑_

9. The respondent having admitted the above factual position the learned trial Court in its judgment dated 17‑11‑1987 held as under:‑‑ "In view of my findings on the above issues, it is hereby directed that defendant No.1 shall file a surety bond worth Rs.20,000 with an undertaking to the effect that she will take ail the necessary measures to fully protect the wall falling in between her house and the house of plaintiff and in case due to her negligence any damage is caused to the said construction, she will make good in loss. In case the defendant No.1 fails to file the said surety bond within one month, the plaintiff shall be entitled to get the protection wall about 4‑1./2" wide constructed up to the uncovered area of two feet alongwith the foundation of his said wall on the side of house of defendant No.1 which according to report of the local commissioner got exposed due to act of defendant No.1 at his own costs and his suit for grant of mandatory injunction then shall be accordingly deemed to have been decreed. If the defendant No.1 files the surety bond with the undertaking according to the directions of the Court, this suit shall be deemed to have been dismissed." 9‑A. The learned District Judge was not correct in holding that it would be after the damages is caused that the appellant would be entitled to claim liquidated damages while refusing to grant injunction. Similarly the learned High Court fell into an error that the District Judge had accepted the respondent's appeal on the undertaking given that in case any damage is caused she would make good the loss ignoring the remedial part of the trial Court decree. The learned High Court also lost sight of the nature of the dispute raised and the law on the subject. Needless to emphasize that law provides protection to an individual of his person and property and whenever from the act of an individual there is apprehension of injury to the person or property of another individual or there is infringement of his right, such individual has a right to approach a Court of law for seeking redress by way of preventive or directive injunction against a party from whose hand such injury is apprehended or right if infringed. The Court is empowered to restrain a person from doing such act which endangers the life or property of another and refrains him from such infringement. The Court can order remedial measures so that the apprehension of any injury to the person or property be removed before actual injury is caused. This aspect of the case has totally been ignored by the learned two Courts below. Admittedly by act of digging the land adjoining the wall of the house by the respondent the foundation of the wall of the appellant has been exposed which has endangered the lives of the appellant's family and damage to his property. There is apprehension that the wall can collapse at any moment and cause irreparable loss It was, therefore, incumbent upon the Curt to have ordered remedial steps to avoid such continuous apprehension and danger within the meaning of section 56,(i) of the Specific Relief Act. It is illogical to refuse the relief prayed for, which was granted by the trial Court, merely on the undertaking given by the respondent to wait for the dooms day when the well collapses and actual injury is sustained. Whereafter the loss could be made good in a suit for liquidated damages.

10. For the reasons stated above and on the admitted facts of the case as stated above we are of the view that the appellant/plaintiff was successful in proving that he was entitled to the relief prayed for in the plaint. Accordingly, the appeal is accepted, judgment and decree of the learned High Court and that of the Additional District Judge are set aside and judgment and decree of the learned trial Judge is modified in terms that the defendant No.1 shall take all the necessary measures to fully protect the wall falling in‑between her house and the house of the plaintiff owned by the appellant by getting a protection wall raised adjoining thereto 4‑1/2" wide with 2 feet high alongwith the foundation of the said wall to the side of the house of the respondent. In case the respondent fails to raise such protecting wall within a period of 2 months on the notice served on her by executing Court then the appellant would be entitled to raise such wall, with the help of the Court at his own costs. The appellant would not acquire any proprietary right in the site underneath such wall. Parties are left to bear their own costs. A.A./H‑241/S Appear accepted.