- (1.) I. M. Quddusi, J. This writ petition has been filed with a prayer for quashing of. the order dated 22-9-1995 passed by the Additional District Judge, Dehradun in Miscellaneous Civil Appeal No. 97 of 1995 Chandra Mohan Bhandariv. Dr. PC. Whorra and others to the extent that he did not direct the parties to maintain the status quo ante or direct the defendants-respon dents 3 and 4 to reconstruct the separating wall as it existed during the pendency of application for temporary injunction before the trial Court or permit the petitioners to make necessary amendment in its pleadings to make an application for interim injunction as is necessary for a direction of raising of the supporting wall felled after the passing of the order dated 26-6-1995 passed by Munsiff Dehradun and to consider and decide the application aforesaid in accordance with law within such stipulated period as this Court may consider and deem necessary in the facts and circumstances of the case.
(2.) THE brief facts of the case are that the petitioners are the owners of first floor of the property bearing the municipal number 57/3, Hardwar Road, Dehradun along with certain structures on the ground floor and a 10 feet wide open space abetting Hardwar Road. THE first floor of the property is supported by walls of the shops which are situated on the ground floor. THE petitioners No. 1 purchased the property in question from its earlier owner Shrimati Mayadevi through a registered sale deed. It is alleged that at the time of the execution of the sale deed Shrimati Mayadevi made it clear that the tenant or the owner of the shops on the ground floor will have no right to change the position of any wall of any shop. Petitioner No. 2is the attorney of petitioner No. 2. THE shops in question are owned by respondents 3 and 4. Possession of these shops was trans ferred by its owner the respondent No. 2 to them. The petitioners filed a suit for per manent injunction in the Court of the Munsiff Dehradun which was registered as Suit No. 378 of 1994 in which they prayed for a decree of permanent injunction to restrain the defendants from in any way removing or altering the position of any wall of the shops or doing any Act or omission to waken the property of the petitioners on the first floor and further restraining them from raising any con struction or causing any obstruction or hindrance in the 10 feet wide open space abetting Hardwar Road, the forming part of property No. 57/3, (new number 176/152) near Araghar Chowk, Dehradun, An application for interim injunction to the same extent as the permanent injunction aforesaid was sought. It appears that the suit was filed on 7th November, 1994 on which date the application for tem porary injunction was heard and a tem porary injunction was granted restraining the defendants respondents No. 3 and 4 from removing the wall and from changing the nature of the property. The defendants-respondents 3 and 4 contested the suit and filed their written statement. They also filed objections to the application for the interim order. It has been contended by the answering respon dents that as owner of the two shops on the ground floor they have a legal right to remove a portion of the partition wall to widen the door between the two shops and they have been doing their own rights. It has further been contended that there was a door measuring 5' x 7' in height connect ing both the shops from inside. The answering respondents to make the two shops more useful intended to widen the door by making it 11' x 11' in width and keeping the height intact i. e. 7'. Thus, the entire partition wall was not removed but only a portion of the partition wall was to be removed by putting a corresponding beam under the able guidance of an ar chitect. The answering respondents have no intention to damage the property nor in fact they have damaged it because they knew that damage to any portion whether it be wall or any other construction will damage the entire property and not only the first floor portion.
(3.) THE learned Munsiff Dehradun after considering the facts and circumstan ces of the case as well as the objections filed by the respondents 3 and 4 rejected the application 6-Ga vide her order dated 26th May, 1995 holding that prima facie no case for interim injunction is made out. Aggrieved by the order of the learned Munsiff, Dehradun dated 26-5-1995 the petitioner preferred Miscel laneous Civil Appeal No. 97 of 1995. In the appeal the petitioners succeeded in get ting interim injunction in their favour on 27-6-1996 but till the service of the injunc tion order the respondents had already demolished a part of the wall upto a dis tance of 10 feet and height of 7 feet. There after the petitioners filed an application for directing the respondents to maintain the status quo ante. The appeal was finally heard along with the applications and objections filed by the answering respon dents by the Additional District Judge, Dehradun who vide order dated 22-9-1995 while allowing the appeal with costs, set aside the impugned order passed by the Court below dated 26-6-1995 and the defendants were restrained from removing the remaining existing wall intervening the two shops and also from raising any con struction over the land lying in front of the two shops of the defendants abetting Hardwar Road till the disposal of the suit. While making the said order the learned Judge has held that the balance of con venience lies in favour of the plaintiff be cause if the wall is removed then the danger of damage of first floor accom modation is there but if the injunction is granted then the defendants will not be put to any inconvenience as there is already an open space of 5', 6' connecting the two shops. So far irreparable injury is con cerned the learned court below held that the plaintiff will suffer irreparable injury because the plaintiff's residential accom modation on the first floor will be put to danger of falling whereas there is no ques tion of any injury to the defendants. The learned court below has also observed that the intervening wall of the two shops upto a distance of 10', 11' and upto a height of 7 feet has already been demolished by the defendants, but there is some more wall in between the two shops, and the defendants as per the sale-deed in their favour are not entitled to construct the passage or to make any construction over it, and hence the plaintiffs were entitled for injunction.;