- (1.) Mahabir Prasad Gupta and Smt. Siddheshwari Devi Gupta have directed this petition under Article 226 of the Constitution praying for quashing of the orders contained in Annexures 5 and 11 to the writ petition.
(2.) Briefly stating the facts are that respondents 3 to 5, who are tenants, filed a suit for permanent injunction against the petitioners restraining them from interfering with their rights by damaging the back walls and roofs of their shops. They also prayed for repairs of the shop which petitioner No. 1 had failed to carry out in contravention of Section 108(m) of the Transfer of Property Act. During the pendency of this suit petitioner No. 1 moved an application for release of the accommodation under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter be referred as the Act). Eviction of the respondents was sought on the ground that the petitioner No. 1 wanted the premises to be reconstructed after demolishing the structures already standing on it. It was also the case of the petitioners that the Cantonment Board has issued notices for demolition of the shop as it was in a dilapidated condition. This matter was pending before the Prescribed Authority when respondents 3 to 5 filed a suit restraining petitioner No. 1 and the Cantonment Board from demolishing the shops in question. In that suit petitioner No. 1 and the Cantonment Board are parties and they have been directed to maintain status quo. In the present suit a temporary injunction to carry out repairs has been allowed. The petitioner, who were defendants, went up in appeal and also revision was filed against the order of 22.10.1980 passed by the IVth Additional Munsif, Lucknow. The IInd Additional District Judge after considering the entire facts only made a slight modification in the interim order passed under Order 39 and dismissed the appeal, and the eviction preferred by the petitioners. This is how this petition has been brought before this Court.
(3.) I have learned the learned counsel for the petitioners at length and gone through the impugned orders and the averments made in the petition. The learned counsel argued that in view of the provisions of the Sections 28 and 29 of the Act since efficacious remedy was available a third suit could not be filed. He placed reliance in support of his contention on The Municipal Board Mathura v. Dr. Radha Ballab Pathak,1949 ILR(All) 751, wherein it was held by this Court that 'an equally efficacious relief would be a relief which would put a plaintiff in the same position in which he would have been if he had not asked for a relief for injunction. A relief by way of refund of money was not an equally efficacious relief. In my opinion, each case has to be decided on the basis of facts and circumstances of that particular case. In his case the learned counsel vehemently argued that it was not the repairs that was intended to be carried out by respondents 3 to 5 but they wanted to carry out re-costruction. He, therefore, placed reliance on Sections 28 and 29 and tried to drew distinction between repairs and re-erection. In my opinion both these words have connotations and it cannot lead to any anomaly. Repairs include some sort of construction also but it does not intend to equate repairs with a new construction. Constructions are contemplated within the ambit of repairs. The word "repairs" has a wider connotation and re-erection would amount to carrying out construction over the existing structure. It has not been disputed by the learned counsel for the petitioners that in order to carry out new construction a plan has to be submitted and permission has to be obtained but for purpose of repairs no permission is required. Merely because on account of storm with which Lucknow suffered certain walls had fallen down, it cannot be said that raising of a wall would mean construction of a new shop. If the definition of re-construction has to be enlarged to such an ambit then there would be hardly any scope for repairs of a building. I, therefore, do to find much substances in the submission of the learned counsel for the petitioner that in fact new construction was contemplated and, therefore, it was not covered within the ambit of the word "repairs" and the Courts below exceeded jurisdiction in this respect.;