High Court of Judicature at Allahabad
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Satish Chandra Jain v. Girish Chandra Jain - SECOND APPEAL No. 2558 of 1972  RD-AH 6180 (21 March 2006)
Court No. 9.
Restoration Application No. 2829 of 1986.
On behalf of
Girish Jain ... Plaintiff-applicant.
Second Appeal No. 2558 of 1972.
Satish Chandra Jain (since deceased)
1/1 Smt. Rajeshwari and others ... Defendant-Appellant
Girish Chandra Jain ... Plaintiff-Respondents.
Hon. Sunil Ambwani, J.
This second appeal was decided and allowed by judgment dated 1.1.1981. The respondents filed an application on 14.11.1986 for recalling the exparte judgment on the ground that they had engaged Sri G.P. Tandon , Advocate. They wrote a letter to Sri G.P. Tandon on 24.10.1986 to enquire about the status of the appeal on which they were informed by Sri G.P. Tandon on 4.11.1986 that the appeal was heard and disposed of by the Court. It is stated in paragraph 4 and subsequent paragraphs of the application that in the end of October, 1980 Mr. Tandon underwent eye operation on account of detachment of the retina in one eye and that the Doctors advised not to do any reading and writing work for about three months. He had got his cases adjourned. The clerk of Sri Tandon missed the case when it was listed n 1.1.1981, and could not mark the adjournment on the cause list. The appeal was as such decided exparte, and allowed without hearing his counsel.
Notices were issued on the application, as Sri R.N. Bhalla learned counsel for the appellant had given a statement that he has no further instructions after the dismissal of the appeal. The pending substitution applications have been allowed. I find that the cause shown is sufficient. Sri G.P. Tandon was not in a position to argue the case and that his office has missed the fact of listing the case on account of which it was decided exparte.
The application is as such allowed. The judgment dated 1.1.1981 is as such recalled. The second appeal is restored to its original number and was heard today.
I have gone through the judgments of the court below very carefully as also the findings given by this Court in allowing the second appeal.
Both the parties were real brothers. The plaintiff has filed the suit for relief of mandatory injunction and for demolishing the projection raised by the defendants in the lane at a height of about 14' or 15' from the ground level protruding from the defendant's wall to an extent of about 10 inches. The plaintiff alleged that in the partition deed (Ext. 2) between the parties, there was a stipulation that no construction will be made by any party in the common Gali separating their portions, and that the defendants breached this condition.
The trial court after examining the terms of the partition deed found that there was no obstruction whatsoever in the lane nor the plaintiff was deprived of his right of user of light land and air. As the constructions were at a sufficient height. The suit was accordingly dismissed. The Appellate Court re-appreciated the evidence, and interpreting of the terms of the agreement all over again, held that the parties were restrained from making any construction even if it did not obstruct each
The grant of injunction is a discretionary power which cmust be exercised on the settled principle of law. Where neither of the parties suffers any infringement of proprietary rights, the insistence in common law mandatory injunction for demolition only, to enforce the terms of the partition deed cannot be insisted. The findings that the construction did not create any hindrence in the passage or a right and enjoying air, were sufficient to deny the discretionary relief to the plaintiff.
The appeal was admitted prior to enforcement of amendments of Section 100 C.P.C., by Act No. 104 of 1976, and thus it can be decided even on a question of law. The Appellate Court, in my opinion, committed gross illegality in decreeing the suit by both misinterpreting the partition deed and in setting aside the grant of discretionary powers by the trial court.
The second appeal is consequently allowed with costs. The suit of the plaintiff stand dismissed. In effect the judgment passed by this Court on 1.1.1981 is maintained.
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