Civil Revision No. 6325 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6325 of 2011 (O&M) Date of Decision: October 17th, 2011 Sukhwinder Singh .... Petitioner Versus New India Assurance Co. Ltd. .... Respondent CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Amardeep Singh Gill, Advocate, for the petitioner. VIJENDER SINGH MALIK, J. This is defendant's revision petition brought under the provisions of Article 227 of the Constitution of India for setting aside the order dated 22.7.2011 (Annexure P6), passed by Civil Judge (Junior Division), Jalandhar, whereby Local Commission has been appointed with a direction to get the Pipal tree removed from the property in question alongwith the generator set, if that was found lying on the portion of the roof of the premises in possession of the respondent. New India Assurance Company limited filed a civil suit for permanent injunction restraining the defendant from obstructing the free access of the plaintiff to its office premises as also to the roof of the same for cleaning the same, which is required for proper Civil Revision No. 6325 of 2011 2 .. discharge of rainy water through the common stair case shown as blue in the site plan. The insurance company has further sought the relief of restraining the defendant from obstructing the plaintiff from going to the roof of the premises for removal of the malba and other garbage lying thereon. The plaintiff has also sought the relief of mandatory injunction directing the defendant not to store garbage over the roof of the premises so as to choke the outlets of the roof for discharging rainy water. The plaintiff has also sought directions to the defendant to remove the Pipal tree growing over the roof and also the generator set lying on the roof of the premises. Learned trial court heard learned counsel for the parties and has appointed Ms. Gurinder Kaur, Advocate as Local Commission to visit the property in dispute on any working day by issuing a prior notice to counsel for the parties vide the impugned order. The Local Commission is further directed to get Pipal tree removed from the property in dispute and during the said process, if any damage was caused to the roof, then to get the same repaired at the expense of the plaintiff. Learned trial court further directed the Local Commission to get the generator set shifted from the roof of the premises in occupation of the plaintiff if it was found lying thereon. Aggrieved by the aforesaid order, the present revision petition has been filed. I have heard Mr. Amardeep Singh Gill, learned counsel Civil Revision No. 6325 of 2011 3 .. for the petitioner and have gone through the record. Learned counsel for the petitioner has submitted that the Local Commission could not be appointed by learned trial court for the aforesaid purpose under the provisions of Order 26 of Code of Civil Procedure. According to him, by directing the Local Commission to get the Pipal tree and generator set removed from the roof of the premises in possession of the plaintiff, the relief of mandatory injunction has been finally granted by the learned trial court, which cannot be legally done. Learned counsel for the petitioner has further submitted that the Local Commission could be appointed for various jobs, including inspection of the spot, but it could not be appointed for this purpose. He has, however, added that by this time, the Local Commission has already visited the spot and has got Pipal tree removed. According to him, she also attempted to get the generator set removed but could not do so because the same caught fire. Grant of interim relief, mandatory in nature is not barred under all circumstances. Admittedly, the plaintiff is a tenant over a portion of the building of the defendant and till it is evicted therefrom, it has a right to enjoy the possession thereof. If the Pipal tree growing on the roof of the said premises is not directed to be removed, the same would create a lot of problem to the plaintiff in the enjoyment of the building because that would create fissures in roof leading to leakage of water in rainy season. Civil Revision No. 6325 of 2011 4 .. Similarly, the landlord cannot be permitted to store garbage over the roof of the tenanted premises or install a generator set thereon to cause various type of nuisance to the tenant. If garbage is dumped on the roof of the tenanted premises, that would lead to choking all the outlets of rainy water and that water if remained stagnated on the roof would find its way to the premises. By both the things, keeping of Pipal tree or the generator set on the roof, the landlord would be interfering in the peaceful enjoyment of the premises by the tenant to which the tenant has every right. Direction to remove Pipal tree and generator set from the roof of the tenanted premises can certainly be given by way of interim measure and it would not amount to allowing the claim or grant of relief finally. Local Commission, as would appear from the order, has been appointed just to oversee the removal of Pipal tree from the roof and generator set, if that was found on the roof of the tenanted premises of the plaintiff. So, no exception can be taken to the appointment of Local Commission for this purpose. For the aforesaid reasons, I find no ground to interfere with the impugned order. Finding the revision petition to be devoid of merit, same is dismissed. (VIJENDER SINGH MALIK) JUDGE October 17th, 2011 som