Judgment:
A.L. Bahri, J.
1. Arya Vidya Mandir, the defendant, challenges in this revision petition order dated April 29, 1989, passed by the Additional District Judge, Sirsa, dismissing the appeal filed against the order of the trial Court dated October 24, 1987, granting ad interim injunction restraining the defendant from raising construction on the plot under a plan sanctioned by the Municipal Committee which was not validly sanctioned and was in violation of the Municipal Buildings Bye-laws. The bye-laws aforesaid provided that there could not be construction on a covered area more than 33-1/3 % of the area of the plot owned by a public institution Reliance was placed by the Courts below on the advice of the Legal Adviser attached to the Municipal Committee given on March 26, 1987, and his note dated April 2, 1987 to the effect that the proposed construction was on an area more than 33-1/3 % of the total area. It was also noticed that earlier the Municipal Committee on the aforesaid advice had rejected the plan on June 25, 1987. However, subsequently the plan was sanctioned on July 8, 1987 that the present suit was filed by Dr. Ram Sarup, a neighbour.
2. It may be stated that earlier Dr. Ram Sarup and others had filed a suit for the grant of permanent injunction restraining the Municipal Committee as well as Arya Vidya Mandir. Against Arya Vidya Mandir the prayer was for the grant of permanent injunction not to raise construction on the boundary wall and to block the ventilators opened in the house of Dr. Ram Sarup- At that time though the Municipal Committee was impleaded as a party, the plan had not been sanctioned. Ultimately that suit was dismissed on October 3, 1989 by the Senior Sub Judge, Sirsa and a copy of the Judgment has been produced during arguments by counsel for the petitioner to support his contention that since earlier suit had been dismissed for the grant of permanent injunction, Dr. Ram Sarup is not entitled to the grant of adinterim injunction during pendency of the present suit.
3. On perusal of the material produced and the judgment impugned I find that the scope of these two suits was entirely different, Although at the time of arguments it has been asserted on behalf of the petitioner that the petitioner could not be restrained from raising the height of the wall (boundary wall) the result which would be to block the ventilators opened by Dr. Ram Sarup in his own wall of his own home, copy of the sanctioned plan is not available to verify as to whether the plan also authorises the present petitioner to raise the height of the boundary wall.
4. Both the Courts have held prima facie case in favour of the plaintiff relying upon the report of the Legal Adviser that the proposed construction is going to be on a covered area more than 33-1/3 % of the plot Being a neighbour the plaintiff would have locus standi to file the suit. The lower Court relied upon the decision of the Calcutta High Court in Krishna Kali Mallik v. Bobulal and Ors., A.I.R. 1965 Cal. 148, The ratio of the decision briefly is that if there is going to be construction against the bye-law, a neighbour could successfuly object to the same. Almost similar point was under consideration of a Division Bench of this Court in Daya Swarup Nehra and Ors. v. The State of Punjab and Ors., A.I.R. 1964 Punjab 533, where against Capital of Punjab (Development and Regulation) Act and Rules framed thereunder, the Chandigarh Administration wanted to construct a petrol pump on an area which was otherwise reserved. The said petrol pump was sought to be installed near the house of Daya Swamp Nehra and he successfully challenged the action of the Administration. It was held that such a right was initially based on contract but was protected by a statute.
5. The grant of injunction is discretionary with the trial Court and in the present case both the Courts have exercised jurisdiction in the matter taking into consideration the facts of the case. It has not been shown as to how this jurisdiction has been illegally exercised in the facts of the present case to call for any interference. The apprehension of the petitioner that he could not be stopped from raising the height of the wall to close the ventilators with regard to which a judgment has already been pronounced in another suit is misconceived. However, still it is made clear that if the sanctioned plan authorises raising of the boundary wall adjoining the house of Dr. Ram Swarup, the injunction granted by the courts below will not apply to raising of the aforesaid wall. These observations are only tentative at this stage as the judgment in civil Suit No. 65 of 1985, dated October 3, 1989 (Dr. Ram Swarup and Anr. v. Municipal Committee and Anr.), may be subject matter of appeal. These observations, therefore, will not affect the merits of the said appeal.
6. With the aforesaid observations this revision petition is dismissed leaving the parties to bear their own costs.