Judgment:
ORDER
Satpal, J.
1. This petition has been filed by the petitioner, plaintiff against the order dated 19th April, 1996 passed by the learned Civil Judge, Ludhiana, dismissing the application of the plaintiff under Order 39, Rules 1 and 2 read with Section 151 Civil Procedure Code (in short, the Code) and order dated 3rd May, 1996 passed by the learned District Judge, Ludhiana, by which he has upheld the said order passed by the learned Civil Judge (Senior Division) and rejected the appeal of the plaintiff. In this petition, it has been prayed that the aforesaid orders be set aside and the defendant-Society be restrained from digging or making any construction over the area of 67' x 10', adjoining the eastern side of the house of the plaintiff.
2. Briefly stated, the facts of the case are that on 1st April, 1989, the plaintiff filed suit for grant of permanent injunction restraining the defendant-Society from digging deep the plot for basement construction (underground) situated on the eastern side of the house of the plaintiff bearing No.-B-II-1372 KutchaNo.1, Deepak Cinema Road, Ludhiana. The said house is a triple storey building and the defendant-Society is buildingmultistoreyed building adjoining the eastern side of the house. Along with the plaint, an application under Order 39, Rules 1 and 2 of the Code was filed by the plaintiff and in this application, it was prayed that the defendant-Society be restrained from digging deep their plot for basement construction adjoining the Eastern wall of the building of the plaintiff. The said application was dismissed by the then Sub Judge 1st Class, Ludhiana vide his order, dated 13th March, 1990. Aggrieved by this order, the plaintiff filed an appeal which was also dismissed by the then learned Additional District Judge, vide his order, dated 8th May, 1990.
3. Thereafter, another Application dated 15th April, 1993 was filed by the plaintiff under Order 39 Rules 1 and 2 read with Section 151 Civil Procedure Code for grant of temporary injunction stating that the defendant-Society in addition to the double basement were raising construction against the bye-laws of the Municipal Corporation and during the process of construction they had raised structures which were unauthorised and had caused extensive damage to the building of the plaintiff as well as six other residential buildings in the locality. For this purpose, the plaintiff filed an application for amendment of the plaint and his application for amendment of the plaint was finally allowed by this court vide order dated 30th August, 1991 in C.R.No.708 of 1991 and the plaintiff was directed to take the plea regarding violation of the Municipal Bye-laws. The above mentioned application dated 15th April, 1993 was resisted by the defendant-Society and it was pleaded that the second application on the same plea was barred by the rules of res judicata as the first application had been dismissed on merits. It was also pleaded that the construction had been carried out strictly according to the sanctioned plan and not in violation of any Municipal bye-laws and it as further stated that the digging operation for the basement had already been completed. It was also averred by the defendant-Society that the construction upto four storeys had been completed without taking into account any support from the wall of the plaintiffs house and even a retaining wall at a distance of 10 from the Eastern wall of the Plaintiffs house had been constructed in the basement and thus no damage was done to the building of the plaintiff.
4. The above mentioned application dated 15th April, 1993 came up for hearing before the learned civil Judge (Senior Division) Ludhiana on 16th April, 1993 and the Teamed Civil Judge restrained the defendant-society till May 4, 1993 from carrying out any digging towards the house of the plaintiff for the purpose of raising any construction over 10 strip left by the defendant along with the eastern side of the wall of the plaintiff measuring 67'. The learned Civil Judge, however, after hearing the learned counsel for the parties dismissed the application of the plaintiff by impugned order, dated 19th April. 1996. Aggrieved by the aforesaid order passed by the learned Civil Judge (Senior Division) Ludhiana, the plaintiff filed an appeal which has also been dismissed by the learned District Judge, Ludhiana, vide impugned order dated 3rd May, 1996. Aggrieved by the aforesaid two orders, the present petition has been filed by the petitioner plaintiff.
5. The petition came up for hearing on 10th May, 1996 and on that day, the learned counsel appearing on behalf of the respondent-Society gave an under-taking that the respondent would maintain status quo with regard to the area 67' x 10' in dispute. On that day, the Registry was also directed to summon the records of the learned trial Court.
6. On 17th May, 1996, after hearing the learned counsel for the parties, I found that an expert should be directed to ascertain the damage, if any, caused to the wall building of the plaintiff. Accordingly, I directed the Chief Engineer (Head Office) P.W.D. (B and R Branch), Patiala, to depute a Superintending Engineer of B and R Branch, to visit the said premises and submit the report with regard to damage, if any, alleged to have been caused to the above mentioned building by the respondent-Society. Pursuant to this order, the Chief Engineer (Head Office) PWD (B and R Branch) Patiala deputed the Superintending Engineer, Construction Circle, PWD B and R Branch) Ludhiana, to visit the premises in question with Executive Engineer, PWD (B and R Branch) and submit his report. Accordingly, said two officers submitted their report dated 25th May, 1996 in this Court. Paras 4 to 7 of the report which are relevant for the purpose of deciding this petition, are reproduced herein below:
'4. As per orders of the Hon'ble Punjab and Haryana High Court, the report is to be submitted in respect of the following:
(i) With regard to damages, if any, alleged to have been caused to building No.B-II-1329 Street No.1, Deepak Cinema Road, Ludhiana by Ludhiana Wholesale Cloth Merchants shop-Cum-Office Building Society, Ludhiana.
(ii) Detail of structure on the land in dispute with regard to area 67' x 10'.
5. With reference to Point No.1 above, it is reported that there exists a minor crack in the floor of room marked A. This minor crack is starting from entrance and is upto middle of the floor as marked dotted Red on the Line-plan. Outer wall of Room A, Room B, Room E and Room F was separated from the floors at their junctions and there exists a gap varying from 1 mm to 2 mm. This apparently appears to be as a result of unequal settlement. Though there is no immediate danger to the structural safety on account of this minor settlement which can be set right by repairs, but further excavation at foundation level may pose serious danger.
6. Hair-line cracks shown in the parapets are just in the plaster. The hair-line crack in the Store which is at the joint of RCC and masonry does not appear to be because of construction in the adjoining building.
7. The masonry work out of plumb pointed out by Shri Hari Narain Singh Bhanot in the portion of wall adjoining to their premises and also cracks in the end wall of street No.1 are not in the scope of this report as the report is confined to disputed area of 67' x 10'only.
Regarding point No. 1 i.e. detail of structure on the land in dispute (67' x 10'). it is reported that at present the outer wall of the shops in basement No.1 (level -14') appears 10' away but the outer-wall of the shops in basement No.2 (level - 4') are touching the outer' wall of the house No.1392, street No.1, Deepak Cinema Road, Ludhiana and similar is the position of shops in ground floor, first floor and second floor as shown in the sectional elevation prepared by the S.D.E. and J.E. on 24.05.1996 which is enclosed in original. It appears that the construction in the portion 10' wide adjoining to the House No, B-ll-1392 right from* floor of basement No. 2 (level -4') to the tops has been done in haste recently and the tile flooring in this extended portion in floor of basement No.2 (-4' level), ground floor and first floor as shown in black dotted are in progress.'
7. In the above report it has clearly been stated that there is no immediate anger to the structural safety on account of this minor settlement which can be set y repairs but further excavation at foundation level may pose serious danger. In view of this finding, I am of the opinion that it would be in the interest of justice that the respondent-Society is restrained from further digging or making any construction over the area of 67' x 10' during the pendency of the suit. Since as per the report, the outer wall of Room A. Room B, Room E and Room F has been separated from the floors at their junctions and there exists a gap varying from 1 mm to 2 mm., I am also of opinion that the respondent-Society should be directed to deposit a sum of Rs. 2 lacs in the trial Court which amount shall remain deposited with the. trial Court subject to the decision of the learned trial Court in the suit.
8. The learned counsel for the petitioner submitted that the parking on the top floor of the building of the respondent-Society creates continuous vibrations which could further damage the house of the petitioner and as such the respondent-Societyshould be restrained from using the parking place on the top floor. With regard to his point, the learned counsel for the respondent-Society contended that the top floor meant for parking purpose had been constructed in accordance with the sanctioned plan. Since there is no prayer even in the revision petition for grant of anyinjunction with regard to the parking on the top floor, I am of the view that no interim order can be passed restraining the respondent-Society from using the parking place at the top floor at this stage.
9. The learned counsel for the petitioner had also argued that therespondent-society should be directed to demolish the structure which was illegally, constructed. am, however, of the opinion that no order can be passed at this stage for demolishing any structure as the main suit is yet to be decided by the learned trial Court.
10. In view of the above discussion, the revision petition is allowed and the impugned orders are modified to the extent that the respondents are restrained from further digging or making any construction over the area of 67' x 10' adjoining the astern wall of the house of the petitioner till the decision in the suit pending before he learned trial Court. The respondent-Society is also directed to deposit a sum of Rs. 2 lacs in the trial Court as mentioned above, which shall remain deposited subject to the decision in the main suit. The learned trial Court is also directed to dispose of the main suit preferably within three months from the date of the receipt of this order. The Registry is directed to send the records to the trial Court forthwith.