IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 9 of 2008 Date of Decision: 26.5.2008 ________________________________________________________________ Sh.Hari Chand … Petitioner Versus Sh.Balraj Chand and another … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Petitioner (s) : Mr. Suneet Goel, Advocate. For the Respondent-1 : Mr. Bhupinder Gupta, Senior Advocate with Mr.Janesh Gupta, Advocate. ________________________________________________________________ Deepak Gupta, J. (Oral ). This petition is directed against the order of both the Courts below whereby the interim relief prayed for by the petitioner (hereinafter referred to as the plaintiff) has been denied to him. The plaintiff and defendants 1&2 are real brothers. Their abadis adjoin each other. According to the plaintiff there is a passage leading from his house to the public path through the abadis of defendants 1&2. This fact was denied by the defendants. The plaintiff by means of the interim application had prayed that during the pendency of the suit 2 the defendants should be restrained from obstructing the passage, the existence whereof was denied by the defendants. The learned trial Court rejected the application on the ground that the plaintiff has failed to show that there was any passage leading from his house through the abadis of the defendants. In fact, the learned trial Court wrongly came to the conclusion that the plaintiff claimed that there was a public path going through the abadis of defendants. He rejected the prayer for grant of interim relief. The District Judge rejected the appeal filed by the plaintiff. Hence, this petition. Today Sh.Suneet Goel has produced a report of the Local Commissioner dated 26.4.2008. A perusal of this report shows that the defendant No.1 has constructed a wall between his abadi and the abadi of the plaintiff. I am not going into the other aspects of the report since this report may be challenged by either party before the learned trial Court. But one thing is apparent from this report that as on date there is a wall existing between the abadi of the plaintiff and defendant No.1. Even assuming for the sake of arguments that this wall was constructed during the pendency of the suit, which fact is not admitted by the defendants, by way of interim relief it may not be possible to 3 issue mandatory injunction for removal of the wall. Therefore, no interim relief can be granted at this stage. However, after going through the record I do find that this is a matter wherein, in case what has been alleged by the plaintiff is true there is virtually no right of ingress and egress available to him. Keeping in view the aforesaid facts, especially the fact that in view of the admitted fact that a wall now exists between the house of the plaintiff and the defendants no interim relief in the nature of a mandatory injunction can be granted and therefore this petition has become infructuous. The petition is accordingly disposed of as infructuous but with a direction to the trial Court to decide the suit as early as possible but not later than 31st March, 2009. May 26, 2008. ( Deepak Gupta ),J. PV