High Court Punjab-Haryana High Court

Imperial Hotel And Restaurants … vs M/S J.M.P. Enterprises on 29 July, 2009

Punjab-Haryana High Court
Imperial Hotel And Restaurants … vs M/S J.M.P. Enterprises on 29 July, 2009
            IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

                                 Civil Revision No. 1137 of 2009 (O & M)
                                 Date of decision:- 29.07.2009.



Imperial Hotel and Restaurants Pvt. Ltd.                   ...Petitioner


                          Versus


M/s J.M.P. Enterprises                                     ...Respondent

CORAM: HON’BLE MR. JUSTICE A.N.JINDAL

Present:- Mr. R.S. Bajaj, Advocate
for the petitioner.

Mr. N.C.Kinra, Advocate
for the respondent.

A.N.JINDAL J.

Both the Courts below declined to grant temporary injunction

in favour of the petitioner-plaintiff restraining the defendant-respondent

from raising/creating construction in the passage used by them, therefore,

the present revision petition has been preferred.

The factual background of the case is that the petitioner

purchased the property in dispute for Rs.40,00,000/- from the defendant-

respondent (herein referred as the defendant) vide sale deed dated

09.07.1990 . Defendant-respondent vide the aforesaid sale deed had given

liberty to the petitioner-plaintiff to raise the construction of shops on all the

four sides of the plot thus implied by giving them right to use passage on the

Northern side of the plot in question also. It has been averred that the

plaintiff has as such right of common passage towards the Northern side of

the purchased property. It was also submitted that the tenants of the
Civil Revision No. 1137 of 2009 -2-

plaintiff namely Imperial Furniture House, Noor Communication and

Sukhdeep Repair Works have their entrance from the common passage

existing on the Northern side of its building. The plaintiff and its tenants

have been using this common passage as entrance due to the rights having

purchased vide sale deed as referred to above. However, on hurdles being

created, the plaintiff-petitioner preferred present suit. Alongwith the suit an

application for temporary injunction was also filed. The suit as well as

application were contested by the defendant with all vehemence admitting

that the sale deed was executed and registered by it. However, with regard

to specific boundaries, there was nothing mentioned about the use of

passage by the plaintiff on the Northern side, therefore, the plaintiff cannot

be allowed to use the passage on the Northern side.

Heard.

Without going deep into the controversy, and without

commenting on the merits of the case, there is no denying fact that there

exists a passage on the Northern side and that the plot was sold by the

defendant to the petitioner on 09.7.1990 and it has also not been denied that

respondent gave liberty to the petitioner to construct shops on all four sides,

which implies that the plaintiff could also use the passage on the Northern

side. In order to establish the existence of passage on the Northern side of

the property of the plaintiff , the local commission appointed by the Court

visited the spot, who has also not denied about existence of the passage at

the spot. Even the photographs placed on record reveals that there is a

passage on the Northern side of the building of the plaintiff. Anyway

without commenting regarding appreciation of evidence and by leaving it to
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the trial Court to make true interpretations of the sale deed it is prima facie

observed that liberty to construct shops to the plaintiff on all the four sides

of the plot was given with intention that he could use the passage on the

Northern side also. Finding the recital in the sale deed, which implies the

use of the land as passage on the Northern side, I deem it appropriate to

hold that plaintiff has a prima facie case in his favour that the occupants of

the shops are now prevented to use the passage on the Northern side, thus,

certainly they shall suffer irreparable loss.

Resultantly, I hereby partly allow the petition and set aside the

impugned order and direct both the parties to maintain status quo with

regard to use of the passage by the petitioner as it exists today.

July 29, 2009                                   (A.N.JINDAL)
vj                                                 JUDGE