Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal from Order No. 97 of 2002. 1. Smt. Heera Rawal W/O Late Shri L.S.Rawal, R/O May Villa Compound Tallital, Nainital. 2. Dhirendra Singh Rawat, S/O Late Sri L.S. Rawal, R/O May- Villa Compound Tallital, Nainital. 3. Shailendra Singh Rawal, S/O Late Sri L.S.Rawal, R/O May- Villa Compound Tallital-Nainital. … Appellants. Vs. Dhananjay Singh Bisht, S/O Late N.S.Bisht, R/O May Villa Tallital- Nainital. …Respondent. Mr. D.S.Rawal, Advocate, learned counsel for the appellants. Mr. Anirudh Katoch, Advocate, learned counsel for the respondent. Date October 08 , 2010. Hon’ble B.S.Verma, J. This appeal under Order 43, Rule 1(r) read with Section 104 of the Code of Civil Procedure is directed against the order dated 30-4-2002 passed by Additional District Judge, I Fast Track Court, Nainital in Civil Suit NO. 10 of 2002, Dhanajay Singh Vs. Smt. Heera Devi and others, whereby the application for temporary injunction paper no. 7-C moved by the plaintiff-respondent was allowed and the defendant-appellants were restrained to raise any construction on the disputed link-road during the pendency of the suit. Briefly stated the facts giving rise to the present appeal are that the respondent-plaintiff filed a suit for permanent injunction and for demolition against the appellants-defendants in the court of the Civil Judge (Juinior Division) Nainital, being Civil Suit NO. 10 of 2002, with the allegation that the plaintiff is the co-owner of the Mevilla Bhawan situated in Mevilla Compound Tallital and the land appurtenant to the building. In the suit, the plaintiff-respondent has sought a relief of mandatory injunction and for a decree of demolition in respect of the constructions raised by them on the land in excess of the land purchased by them in Mevilla Compound. The plaintiff- 2 respondent has also claimed compensation of Rs. 50,000/- for illegal construction on the property of the plaintiff. Plaintiff also sought decree of permanent injunction restraining the defendants from raising the constructions over the property belonging to the plaintiff. According to the plaintiff-respondent, the defendants were raising illegal constructions on the approach road leading to the main building of the plaintiff and has also overlapped the road by increasing the roof of their house. It was also alleged that the defendants raised illegal construction by raising projection without any authority as mentioned in paragraph no. 6 of the plaint. Hence the suit for permanent injunction and demolition of illegal construction was filed. Along with the suit, an application for temporary injunction was also filed. In support of the application for temporary injunction, the plaintiff-respondent filed an affidavit, wherein it has been stated that 10 ft. wide approach road connecting the main building was left towards south of plot no. 5, which was sold by the father of the plaintiff to Lalit Singh Rawal, predecessor of the defendants by a registered sale deed. The defendants have constructed their house over the plot purchased by their predecessor but has narrowed the approach road by raising illegal constructions in order to grab the approach road as alleged in the plaint. The appellant-defendants filed their objection, paper no. 28-C and it is alleged that the constructions have been raised by them on their own land and they have not encroached upon the land belonging to the plaintiff and that no cause of action has arisen to the plaintiff to file the suit or the application for a temporary injunction. In support of their contention, the defendants have also filed affidavit. 3 A perusal of record shows that the trial court made spot inspection of the disputed property and a commission was also issued to file his report. The learned trial Court after hearing both the parties and perusing the material placed before the court has held that the plaintiff has succeeded in establishing all the three ingredients for grant of temporary injunction, i.e. prima facie case, balance of convenience and irreparable loss, in his favour and accordingly, the application for temporary injunction was allowed by the order dated 30-4-2002. Aggrieved by the said order, the present appeal has been filed on the ground that the impugned order has been passed by the trial court without application of mind and no case of temporary injunction is proved out of the Advocate Commissioner’s report as well as spot inspection report by the Presiding Officer. It has been asserted that the injunction cannot be granted against the true owner of the property. In this appeal, Mr. Sharad Sharma, Advocate was appointed as Advocate Commissioner and was directed to visit the spot and to try to settle the dispute between the parties on the spot by order dated 23-5-2002 passed by this Court. The Advocate Commissioner submitted his report. The commissioner’s report and map have been filed as paper no. 152 to 155 on record of this appeal. It appears that as many as nine points were chalked out in the compromise between the parties but neither the appellants nor the respondent or their respective counsel put there signatures to the compromise between the parties. Subsequently by order dated 9-4-2003, this Court had observed that since the appellants have complied the suggestions given to him according to the two commissions’ reports, therefore, the further execution and proceedings in the court below in civil suit No. 4 10 of 2002 and all the contempt proceedings shall remain stayed until further orders of this Court. It also appears that the respondent Dhananjay Singh Bisht made a request before this Court on 21-4-2003 that Sri Govind Singh Bisht Advocate be appointed Commissioner of the Court, who was appointed Commissioner and was directed to submit a report in terms of the compromise arrived at between the parties. The Advocate Commissioner filed his report dated 8-8-2003 before this Court on 27-8-2003. It has been observed in paragraph no. 6 by the Advocate Commissioner as under:- “6. That, the appellants however are not ready to consider all the 5 points of compromise in this litigation and emphasize the dispute in respect to the subject matter of this appeal only. According to Sri D.S.Rawal, appellant, the only condition of compromise is that the respondent should withdraw the Civil Suit because the appellant have cut the RCC slab over hanging the open approach road to the extent of 2ft and have also removed the RCC stair case, which was constructed on the open land, in terms of the compromise arrived at between the parties pursuant to the conciliation of Sri Sarad Sharma Advocate in the present case who was Commissioner earlier. The respondent however denies that any final compromise was arrived at. He is not satisfied with this removal of encroachment to the extent of 2 ft. only. He emphasizes total removal of the said encroachment, which is not acceptable to the appellants. Thus no compromise yet has been arrived at between the parties. However, both the parties have been pursued by me to reconcile their disputes and they have assured to continue their dialogue and would inform as soon as they come to a final conclusion.” I have heard learned counsel for the parties and perused the material placed before this Court. The learned counsel for the appellants has contended that the learned trial court has passed the impugned order without applying 5 its mind as in the impugned order the date of sale deed was typed as 16-7-1996 in place of 16-7-1976. It is not disputed that the father of the respondent namely Narendra Singh Bisht had sold plot no. 5 in favour of predecessor of the appellants, namely Mr. Lalit Singh Rawal on 16-7-19976 through a registered sale deed, but due to clerical error the date of sale deed was mentioned as 16-7-96. Subsequently, the plaintiff-respondent got the typing error corrected by the court concerned. This argument is no avail to the appellants and on this basis it cannot be held that the impugned order was passed without application of mind. It was next contended by the learned counsel for the appellants that the Advocate Commissioner’s report prepared in the trial court is not a reliable piece of evidence. This argument of the learned counsel for the appellants loses its importance because in this appeal, it is admitted case of the appellants that they have already dismantled certain constructions as per suggestions of the Advocate Commissioner Mr. Sharad Sharma, Advocate, appointed by this Court. In this view of the matter, prima facie it cannot be said that no encroachment was made by the appellants over the disputed property. Besides, the learned Trial Court had also made spot inspection and the court itself found that the defendant-appellants had raised certain construction for stair case and had constructed Chhajja (projection) over the approach road. After discussing the entire material, the learned Trial Court after recording prima facie satisfaction had restrained the appellant-defendants by an interim order not to raise any further construction on the disputed approach road during the pendency of the suit. On the other hand, the learned counsel for the respondent has raised a preliminary objection on the maintainability of appeal. Learned counsel for the respondent has submitted that the present 6 appeal ought not to have been filed before this Court, rather the appeal from the order dated 30-4-2002 would lie before the District Judge as the suit is pending for disposal before the Civil Judge (Junior Division). The argument of the learned counsel for the respondent is not tenable for the simple reason that the impugned order dated 30-4- 2002 was passed by the Additional District Judge, I F.T.C. Nainital. From a perusal of the record, it is obvious that the Civil Suit No. 10 of 2002 was filed before the Additional District Judge, I F.T.C. Nainital. The appeal against the judgment and orders passed by the said Court lies before the High Court. The order was not passed by the trial court as In-charge Civil Judge (Junior Division). From a plain reading of the impugned order, it is clear that the learned trial court has dealt with all the relevant aspect of the three ingredients for grant of temporary injunction and consequently, the order restraining the defendants from raising further constructions on the disputed approach road during the pendency of the suit was passed. It has not been shown in this appeal that the respondent- plaintiff either failed to establish his prima facie case, or that the balance of convenience was not in his favour or that the plaintiff would not suffer irreparable loss if the temporary injunction is refused. Having gone through the entire material placed before this Court, I am of the considered view that there was sufficient material before the trial court to pass the impugned order dated 30-4-2002 restraining the defendants not to raise any further constructions on the disputed approach road during the pendency of the suit. The impugned order does not suffer from any illegality or material irregularity. The impugned order does not warrant any interference in this appeal under Order 41, Rule 1(r) of the Code of Civil Procedure. 7 The appeal preferred by the defendant-respondents has no force and is accordingly dismissed. Costs easy. However, in the facts and circumstances of the case, it would be in the fitness of things that it will be open to the appellant-defendants to amend their written statement so as to plead the subsequent developments on the disputed approach road during the pendency of appeal and the defendants would have sufficient opportunity to press all the relevant issues to be framed in the suit and to lead evidence in support of their case before the trial Court. The court concerned is directed to proceed further with the suit in accordance with law and to decide the same on merits expeditiously as far as possible. The interim order dated 9-4-2003 passed by this Court is vacated. Contempt proceeding, if any, initiated against the respondent in this appeal stands dropped. (B.S.Verma,J.) RCP