1 SB Civil Writ Petition No.1113/2009 Hari Om Acharya. vs. Chandra Kumar & Ors. S.B. Civil Writ Petition No.1113/2009 Hari Om Acharya. vs. Chandra Kumar and others. Date : 14.5.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.Sanjeet Purohit, for the petitioner. Mr.HR Soni ) for the respondents. Mr.SS Ladrecha ) - - - - - Heard learned counsel for the parties. The petitioner/defendant is aggrieved against the appellate court's order dated 6.2.2009 by which the appellate court allowed the appeal of the respondent/plaintiff preferred against the trial court's injunction order dated 20.2.2006. Brief facts of the case are that the plaintiff/respondent Chandra Kumar filed a suit for injunction against the defendants praying that the defendants have obstructed the water drain 2 SB Civil Writ Petition No.1113/2009 Hari Om Acharya. vs. Chandra Kumar & Ors. from southern to northern side and passing through in front of the houses of the defendants no.1 and 2. Because of that obstruction, nuisance has been created. The petitioner contested the claim of the plaintiff by filing reply to injunction application and also submitted counter claim. According to the petitioner, the drain in question was running from north to south i.e. just reverse to the side of the plaintiff's house and, therefore, the plaintiff was not entitled to any injunction. A Commissioner was appointed to inspect the site upon which he submitted his report and a detailed map showing the location of the houses of the plaintiff and the defendants no.1 and 2. The defendant no.3 Municipal Council, Bikaner supported the contention of the plaintiff and admitted that the drain is running from south to north and passing in front of the houses of the defendants no.1 and 2. The trial court vide order dated 20.2.2006 instead of giving any direction about the drain whether it can pass in front of the houses of the defendants no.1 and 2 or it was passing through 3 SB Civil Writ Petition No.1113/2009 Hari Om Acharya. vs. Chandra Kumar & Ors. the side north to sought, directed the Municipal Council, Bikaner to construct a new drain crossing the lane and make appropriate arrangements so that nuisance may not be created by discharge of water from the house of the plaintiff. The appellate court found that the trial court did not consider the evidence available on the record and did not look into the facts of the case. The appellate court after considering the Commissioner's report reached to the conclusion that the drain was running from south to north and, therefore, the defendants were directed to restore the position which was in existence before the closure of the drain. The petitioner/defendant has preferred this writ petition to challenge the appellate court's order dated 6.2.2009. Learned counsel for the petitioner vehemently submitted that the first appellate court committed serious error of law by reversing the order passed by the trial court. According to him, the trial court's order has already been implemented. It is also submitted that in view of the fact that the petitioner's house will have the nuisance because 4 SB Civil Writ Petition No.1113/2009 Hari Om Acharya. vs. Chandra Kumar & Ors. of the order passed by the appellate court and the petitioner may be asked to remove certain construction which they have already raised before filing of the suit, therefore, it will cause great hardship to the petitioner. It is also submitted that the Municipal Council, Bikaner since has constructed the drain, there is no reason at this stage, when the defendants' evidence is going on in the trial court in the main suit, to allow the order dated 6.2.2009 of the appellate court. This will alter the position as it is existing. Learned counsel for the respondent/plaintiff submitted that the appellate court's order is just and proper and the trial court committed error by ignoring the Commissioner's report. Learned counsel for the plaintiff also submitted a few more grounds but looking to the totality of the facts of the case, I do not find any reason to refer all the arguments referred by learned counsel for the respondents. Learned counsel for the respondent Municipal Council also submitted that construction of a drain by crossing the lane will not be possible. 5 SB Civil Writ Petition No.1113/2009 Hari Om Acharya. vs. Chandra Kumar & Ors. In the totality of facts, it is revealed that there are allegations and counter allegations and there is evidence i.e. Commissioner's report. The trial court did not consider the Commissioner's report and thereby ignored the material piece of evidence. The appellate court accepted the Commissioner's report as trustworthy and that supported the case of the plaintiff. In that situation, I do not find any just reason to interfere in the appellate court's order at this stage when the defendant's evidence is going on and any observation made by this Court may prejudice the case of any of the parties. In the totality, the appellate court has passed the order to restore the position which was going on and according to the plaintiff, the plaintiff's drain was running from south to north and passing in front of the houses of the defendants no.1 and 2. The appellate court has passed the order to restore the drain but there is no order of removal of any structure of the houses of the defendants. The order of the appellate court can be given effect to by directing the 6 SB Civil Writ Petition No.1113/2009 Hari Om Acharya. vs. Chandra Kumar & Ors. respondent Municipal Council, Bikaner who is responsible to maintain drains, to lay down pipeline of appropriate size from the house of the plaintiff running from south to north and passing in front of houses of the defendants no.1 and 2 and connect it to main drain. The pipe may be of such size that it may not create any nuisance to any party. If feasible, pipeline may be underground and if not feasible, pipeline may be of such size that it may not cause any difficulty to any of the parties. Learned counsel for the respondent Municipal Council submitted that the order which has been passed by this Court may not come in the way of the proceedings taken by the Municipal Council for removal of any construction made by the defendants no.1 and 2 in violation to law. Since that is not issue before this Court, therefore, this Court has not observed about legality of any of the construction of the defendants' structure and the power of the Municipal Council to proceed in accordance with law has not been effected. Therefore, this apprehension has no wings. 7 SB Civil Writ Petition No.1113/2009 Hari Om Acharya. vs. Chandra Kumar & Ors. With the aforesaid observations and directions, the instant writ petition is disposed of. (PRAKASH TATIA), J. S.Phophaliya