JUDGEMENT
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(1.)THIS petition under Article 227 of the Constitution of India has been preferred against the order passed by the Trial Court directing the respondent/mcd to demolish the encroachment made by the petitioner on the public road. The said order was made in a suit instituted by the respondent No. 1 alleging encroachment on public road/land by the petitioner and impleading the petitioner and the respondent No. 2/dda and the respondent No. 3/mcd as defendants and seeking the relief of removal of encroachment. The suit was accompanied with an application for interim relief. It appears that the trial court called for the status report from the respondent no. 3/mcd. The MCD reported that there were encroachments on the public road. The trial court vide order dated 14th July, 2009 directed the respondent No. 3/mcd to remove /demolish the entire encroachment as depicted in the status report filed by the MCD. The concerned SHO was also directed to provide the necessary police force in order to avoid any law and order situation at the time of removal of the encroachment.
(2.)THE petitioner herein filed an application before the trial court under Order 21 Rules 26 and 29 of the CPC. The case of the petitioner in the said application was that and as also contended by him in the written statement, he had himself earlier filed a suit for injunction to restrain the MCD from removing the portion of his property which was claimed by the MCD to be an encroachment on public land/road; the said suit was dismissed; the petitioner had preferred a first appeal against the judgment dismissing the suit but which had also been dismissed; that RSA 56/2008 preferred by the petitioner against the dismissal of the first appeal had been filed and the next date of hearing therein is 15th February, 2010.
(3.)THE petitioner thus contended that since the appeal against dismissal of his suit was pending before the High Court, the property subject matter of that appeal should not be demolished by an interim order in the suit instituted by the respondent No. 1 herein. Though the provisions of Order 21 Rules 26 and 29 of the CPC relate to execution but the counsel for the petitioner contends that the principles enshrined therein were sought to be invoked.
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