W.P.No10879/2010
Smt. Saroj Inderchand Nashta
16.8.2010
.
Shri Pradeep Naveriya, counsel for the petitioner.
This petition is filed against the judgment dated 29.7.2010
by the District Judge, Balaghat in Civil Misc. Appeal no.29/2010
by which while deciding the appeal, the learned District Judge
directed the petitioner to furnish surety and bond of Rs.1.00 lac to
the effect that in case the plaintiff succeeds then the
petitioner/defendant shall remove construction which has been
raised by the petitioner over a drain which is subject -matter of the
suit.
The learned counsel for the petitioner submitted that this
condition is arbitrary and was not required in the case . It is further
submitted that both the Courts below found prima facie case,
balance of convenience and irreparable loss in favour of the
petitioner, but inspite of this, imposed condition in para 20 of the
appellate judgment.
From the perusal of the facts, we find that dispute is in
respect of construction over the drain As per plaintiff, it is the
public drain by which the water of plaintiff and other persons was
flowing since long and they acquired right of easement of flowing
the water from the drain.It is stated that the defendant was raising
construction by blocking drain by putting garbage over the drain
and on this ground, it was prayed that the defendant be restrained
to raise any construction over the drain.The Court below found
that the plaintiff failed to prove balance of convenience,
irreparable loss and considering the Commissioner’s report filed in
the matter rejected the application. On an appeal, the appellate
Court issued directions in para 20 of the judgment which is under
challenge in this matter.
As the dispute is in respect of the drain which as per
plaintiff is a public drain and the water of the plaintiff and other
persons was flowing away from the drain and if the Court below
W.P.No10879/2010
Smt. Saroj Inderchand Nashta
considering the factual position issued the aforesaid directions, no
fault is found. The petitioner herein has been permitted to raise
construction which is incomplete and if the petitioner wants to
raise further construction,she shall furnish surety and undertaking
before the trial Court.
At this stage, the learned counsel appearing for the
petitioner submitted that before passing of the impugned
judgment dated 29.7.2010, the construction was complete. So it is
not necessary to file such surety and bound. It is for the petitioner
to decide whether such surety and bond is required to complete
the construction or not and as per the petitioner no further
construction is required, the petitioner may do as per the advise
given to the petitioner.
In view of the aforesaid,no fault is found in the impugned
judgment warranting our interference. This petition is accordingly
dismissed with no order as to costs.
(Krishn Kumar Lahoti) (J.K.Maheshwari)
Judge Judge
JLL
