CMPMO 227 of 2008. 27.8.2008 Present: Mr. J.L.Bhardwaj, counsel for the petitioner. This is defendant’s petition under Article 227 of the Constitution of India against the order passed by the learned District Judge, Kangra at Dharamsala on an appeal preferred by the plaintiff against the order of the learned trial Court in an application under Order 39 Rule 4 of the Code of Civil Procedure (hereinafter referred to as the Code), varying injunction order passed against the petitioner herein. Notice of this petition was ordered to be issued to the respondent. Despite service, nobody has appeared on behalf of the respondent. By an order dated 28.5.2007, learned trial Court directed both the parties to maintain status quo qua the nature, possession and the construction over the suit land, till the disposal of the main suit. After passing of the order, the plaintiff immediately moved the trial Court for varying the order. The learned trial Court holds that in the written statement, the petitioner (defendant herein) has pleaded that the construction has been raised much prior to the institution of the suit, to which there -2- has been no specific denial by the plaintiff. In the application under Order 39 Rules 1 and 2 of the Code, status quo was ordered on 11.4.2007 that is within two days of the institution of the suit. The learned trial Court found on the material on record that the averments of the plaintiff that the construction was raised after the filing of the suit did not hold good. The Court notices that the petitioner herein has no other place to reside, he has to reside in the house alongwith his grown up daughters. Household articles have to be kept and in the absence of lintel, doors and windows, the safety and privacy of the petitioner would be effectively negated. The Court, on the totality of the circumstances, held that status quo order dated 28.5.2007 was causing undue hardship to the petitioner herein. On hearing the parties, the Court passed an order modifying that order and permitting the petitioner herein to put lintel on the roof of the house, plaster the walls and affix wooden windows etc. The Court then holds that the applicant shall not be allowed to raise any other construction except the one already ordered by the Court. In appeal preferred before the learned District Judge, the learned Court has accepted the appeal on technical grounds that the provisions of Order 39 Rule 4 of the Code are -3- not attracted. I cannot persuade myself to hold that the approach of the learned District Judge was correct. On the question of giving false particulars, all that need be said is that if the learned appellate Court was careful in reading the order of the learned trial Court, it definitely would have come to the conclusion that the plaintiff had concealed material facts. That apart, the approach of the learned appellate Court cannot be commended, as the appeal deals with and accepts hyper technical objections. This petition is accordingly allowed. The order passed by the learned District Judge, Kangra at Dharamsala is quashed and set aside and the order passed by the trial Court is restored. Record, if received, be sent back. August 27, 2008 (PC). (Dev Darshan Sud), J.