IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL REVIEW No. 101 of 1998 M/S VEER PRABHU MARKETING V/S M/S SUNMOON PRINTERS PRIVATE Mr. MC BHOOT, for the appellant / petitioner Mr. LR MEHTA, Mr. SN TRIVEDI, Mr. RAVI BHANSALI, for the respondent Date of Order : 21st August, 2007 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the parties. By this petition, the petitioner seeks review of the judgment of this Court dt. 23.11.1998, passed in Civil Misc. Appeal No. 455/98, whereby the order of the learned trial court was maintained, and it was clarified, that the appellant shall not make construction towards the south of his plot A-11, i.e. in the north of respondent No.1’s plot A-12, in deviation from the pre-existing pattern of the sheds, and the space left for light and air, as given by the State Government, and the respondent No.2, in order to ensure access of light and air. The facts, very briefly, as are necessary for the consideration of review petition are, that the plaintiff non-petitioner no. 1 instituted a suit for mandatory and perpetual injunction, seeking direction against defendant no.1 (present petitioner) to make construction on the lines of the construction already existing on his industrial plot A-11 situated in Industrial Estate, Jodhpur, and that, if permission is granted by the defendant no.2 RIICO to raise construction according to new rules, then to raise the construction leaving proper set backs as per rules, and at a height, by maintaining an angle of 22 degree of his shed. A further restrain is sought against the defendant from obstructing the passage of light; air and sun shine to the plaintiff’s industrial plot no. A-12. Along with this suit the plaintiff filed an application under O. 39 Rule 1 and 2 for temporary injunction. This application was allowed by the learned trial court vide order dt. 17.8.1998, and the defendant appellant (petitioner) was restrained from making any infringement in the right of the plaintiff to receive light, air and sun shine from the north side of his plot, to raise construction with permission, and in accordance with the rules and regulations framed by respondent no.2. The appellant was also ordered to submit the map of the proposed construction to respondent no.2, and defendant no.2 was directed to accord sanction for construction in accordance with its rules and regulations, after keeping in view the plaintiff’s right to receive light, air and sun shine from the north side of his plot. The Appeal No. 455/98 was filed against this order of the learned trial 2 court, which has been decided as above. Arguing the review petition, it was contended, that the petitioner has placed on record of this review petition material, to show, that in view of the construction raised by the plaintiff, the light claimed in the suit is of no relevance to him, inasmuch as the offset printing machines are placed under the roof, which roof has been constructed below the level of glasses, and that, there existed two windows in the room housing offset machines, which too have been closed, and the machine is closed from all the four sides, and there is no access to the natural light, and that, in the room housing ordinary printing press, there exist one window, and that on both the sides, below the glasses, the full width of the boundary, there is 10ft. wide Pucka roof, and therefore, the work being done under the roof, glasses are of no relevance. Likewise, above this roof also, there is no provision for even standing, rather it is being used as dumping ground. In that view of the matter, since this aspect has been suppressed from the Court, and the order sought to be reviewed has happened to be passed, that is required to be set aside. The other submission made is, that there is a right of vertical light, which is available upto sky, but then, there is no such right of lateral light, which could be given to the plaintiff, to an unlimited extent, from a particular angle, and as this 3 aspect has not been considered in the order sought to be reviewed, the order is required to be reviewed. The next submission made is, that it has been omitted from appreciation, that right of sun rays is different from right to light, and it is only if the right of sun rays from a particular side is required, that the question of receiving sun rays from particular angle arise, omission to consider this aspect requires the order to be reviewed. Learned counsel read to me in extenso the judgment dated 23.11.1998, and submitted, that it is required to be set aside. It was also submitted, that earlier the wall between the two plots was common wherein at the height glasses were fixed being sand-glasses to transmit defused light, as glasses were translucent, while now the glasses are plain glasses, and thus the claimed right of easement is lost. It was also contended that the construction which is to be raised by the petitioner, would be at a distance of 6ft. from the plaintiff’s construction, which would give sufficient light to the plaintiff, and since this aspect has not been considered, the order dt. 23.11.98 is required to be reviewed. Learned counsel for the plaintiff respondent, on the other hand submitted, that in review, the permissible scope is only to examine, as to whether there is any error apparent on the face of record, in the order, sought to be reviewed, while the petitioner seeks to have the order 4 reviewed, by employing a long drawn process of reasonings, which cannot be permitted. It was also submitted, that review cannot be claimed on the basis of fresh documents, or material, as is attempted. Learned counsel also read to me the letter of RIICO dt. 8.7.1998, and submitted, that the petitioner was directed to raise construction maintaining the earlier shape, and in accordance with the rules, as such, there is no ground to review. I have considered the submissions. In my view, a look at the order dated 23/11/98 shows that it has been found, that the light is being received laterally and vertically from the north as an easement for the last 35 years, and the plaintiff is likely to suffer substantial damage if the construction is raised by the petitioner in deviation of the pattern, as existed prior to their demolition, and without leaving the set backs. It is in view of this finding, that this Court agreed with the finding of the learned trial court about existence of prima facie case, balance of convenience, and irreparable loss. It has also been found, that the petitioner has not been restrained altogether, from making any construction, and in order to avoid confusion, the order of the learned trial court was clarified. In my view, it cannot be said, that the order suffers from any error apparent on the face of record. Obviously, the additional 5 material produced in review petition cannot be considered to review the order. The petitioner has been permitted to raise construction, obviously without deviating from pre- existing pattern of sheds, and the space left for light and air, as given by the State Government, and the respondent no.2, RIICO. Thus, in my view, no ground has been made out to review the order dt. 23.11.1998. The review petition is, therefore, dismissed. ( N P GUPTA ),J. /Sushil/ 6