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Magna and anr. Vs. Rustam and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 223 of 1957
Judge
Reported inAIR1963Raj3
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 39, Rules 1 and 2(3)
AppellantMagna and anr.
RespondentRustam and anr.
Appellant Advocate Mahaveer Chand Bhandari, Adv.
Respondent Advocate Mag Raj, Adv.
DispositionApplication partly allowed
Cases ReferredState of Bihar v. Usha Devi
Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the..........it is through this opening ef that the water from the house of the plaintiffs discharging on the land abcd flows out through the house of the contesting defendants. the contesting defendants started making constructions on the land abcd in the year 1953. the present suit was then instituted. an order of temporary injunction restraining the contesting defendants from proceeding further with the constructions was passed against them. this order was defied and the constructions were raised so as to block the three spouts p, q and r and all the 17 apertures. the plaint was thereafter suitably amended. the case of the plaintiffs was that eitherthey were the exclusive owners of the land abcd or they were the joint owners of it along with the defendant or the land belonged to some one else.....
Judgment:
ORDER

Jagat Narayan, J.

1. This is a revision application by two of the defendants against an appellate order of the District Judge Bhilwara ordering demolition of constructions made in defiance of an order of temporary injunction passed under Order 39 Rule 2 Code of Civil Procedure.

2. The facts which have given rise to this application are these. Between the houses of the plaintiffs and Magni Ram and Baloo Ram defendants there is a piece of enclosed open land marked ABCD in plan Ex. 17. This land is situated to the south of the house of the plaintiffs. Eight Baris marked H. to Order 8 Roshandans marked Y1 to Y8 and one window marked G of the house of the plaintiffs open towards this land. Further 9 open projecting spouts of the house of the plaintiffs discharge on this land. Three of these spouts are on the first floor and marked P, Q and R. Six of them are on the second floor and are marked S to X. There is an opening EF in the northern wall of the house of the contesting defendants through which they could have access to the land .ABCD. It is through this opening EF that the water from the house of the plaintiffs discharging on the land ABCD flows out through the house of the contesting defendants. The contesting defendants started making constructions on the land ABCD in the year 1953. The present suit was then instituted. An order of temporary injunction restraining the contesting defendants from proceeding further with the constructions was passed against them. This order was defied and the constructions were raised so as to block the three spouts P, Q and R and all the 17 apertures. The plaint was thereafter suitably amended. The case of the plaintiffs was that eitherthey were the exclusive owners of the land ABCD or they were the joint owners of it along with the defendant or the land belonged to some one else and they had acquired a prescriptive right of easement with regard to the 17 apertures and the 9 spouts. They prayed that the constructions made by the contesting defendants on the land ABCD may be ordered to be- demolished and a permanent injunction may be granted to safeguard their rights in respect of the apertures and the spouts.

3. During the pendency of the suit the lower appellate court passed an order requiring the applicants to demolish the constructions which they had made in defiance of the order of temporary injunction. Against that order the present revision application, has been filed. The contention on behalf of the applicants is that no such order is warranted by any provision contained in the Code of Civil Procedure and that as there is a specific provision contained in Rule 2 (3) of Order 39 for imposing penalty for disobedience of the order Pf injunction there is no scope for the exercise of any inherent power of the court.

4. So far as the question of imposing a penalty tor disobedience of order of injunction is concerned I agree with the contention put forward on behalf of the applicants that Rule 2 (3) of Order 39 is exhaustive on the subject.

5. But the imposing of penalty on the party guilty of the disobedience does not provide any relief to the party in whose favour the order of temporary injunction is passed. The object of such an order is to safeguard the rights of a party against a threatened invasion by the other party. If in disobedience of the order of injunction such rights are invaded during the pendency of the suit relief can only be granted to the aggrieved party by invoking the inherent power of the court under Section 151 of the Code of Civil Procedure.

In this connection the decision in the State of Bihar v. Usha Devi, AIR 1956 Pat 455 may be referred to.

6. In the suit the plaintiffs had in the alternative also claimed ownership over the land ABCD over which constructions were made by the defendants in defiance of the order of injunction. But they had no prima facie case with regard to the claim of ownership. They had a prima facie case with regard to their rights of eessment in respect of the spouts and other apertures. The order of demolition of the entire structure was 'therefore not justified. Only the order directing demolition of such part of the constructions as interfered with the rights of easement of the plaintiffs was justified.

7. The suit out of which the present proceedings have arisen has since been finally decided by this Court and a decree has been passed directing the defendants to demolish part of the constructions raised by them over the land ABCD. In view of that decree it is not necessary to maintain the present order even in a modified form. The revision application is accordingly allowed in part as indicated above.

8. In the circumstances of the case, I direct that parties shall bear their own costs.


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