M.L. Singhal, J.
1. Balbir Singh Wasu, Advocate is the owner of plot No. 1119, Sector 8-C, Chandigarh. He constructed house on this plot some 30 years ago. Adjoining plot No. 1120 was purchased by defendant-Parbandhak Committee, Gurdwara Sahib, Patshahi Dasween, Sector 8-C, Chandigarh at public auction held by the Estate Officer, Chandigarh on 19th November, 1997. Defendant was allotted plot No. 1137 and 1138 in Sector 8-C, Chandigarh. Defendant constructed residential house on Plots No. 1137 and 1138 in violation of the building plan of Sector 8-C. Plaintiff filed CWP No. 17884 of 1997 that the service quarters cannot be built on residential plot measuring 1 kanal. He prayed for the setting aside of the auction of residential plot No. 1120 in favour of the defendant. On 5th May, 1998, this court passed order that the defendant shall make further construction on plot No. 1120 in accordance with the plan which the Chandigarh Administration may sanction as per the prevailing rules. It was alleged that defendant was threatening to demolish the common wall between Plots No. 1119 and 1120 without his consent and was coercing him to consent for demolishing the portion of the common wall. Defendant was also threatening to construct service quarters, Dharamshala, Sarai, Langar and Janj Ghar in violation of the site plan by demolishing the common wall. Through civil Suit No. 190 of 1998 for permanent injunction, he prayed for restraint on the defendant restraining it from using the common wall without his consent and without first getting a comprehensive building plan for the entire residential, building to be built on plot No. 1120 sanctioned by the competent Authority and from demolishing the portion of the common wall between residential plot No. 1119 (built by him) and residential plot No. 1120 which was purchased by the defendant in open auction from U.T. Chandigarh without his consent. Along with the plaint, he moved an application under Order 39 Rules 1 and 2 CPC for the grant of ad interim injunction. Vide order dated 29th May, 1998.injunction was granted whereby the defendant was restrained from demolishing the common wall, using the side wall without the consent of the plaintiff. Defendant was further restrained from raising any further construction on plot No, 1120 until the site plan was approved by the Estate Officer, Chandigarh. Vide order dated 29th May, 1998, Civil Judge (Junior Division), Chandigarh gave ex parte injunction to the plaintiff restraining the defendant from demolishing the common wall and using the side wall without his consent. Defendant was further restrained from raising any construction on plot No. 1120 till the site plan was approved by the Estate Officer, Chandigarh.
2. Vide orderdatcd 15th June, 1998, thetrial Court confirmed the ad interim temporary injunction granted by the court and ihe defendant was restrained from raising any construction on plot No, 1120 except according to the plan sanctioned by the Estate Officer, Chandigarh. After the passing of the order by the High Court on 5th May, 1998 in CWP No. 17784 of 1997, the High Court passed the following interim order :-
'In view of this the only appropriate direction which deserves to be issued by the Court is that Gurdwara Sahib shall submit a revised plan for construction of the building on the plot in question i.e. Plot No. 1120 and construction shall be raised by Gurdwara Sahib and its representatives only after sanction of the revised building plan as per the prevailing rules.'
3. As per the order passed by the High Court on 25th November, 1998 defendant was required to submit a fresh building plan for approval of the Estate Officer, Chandigarh. Defendant submitted the fresh revised building plan to the Estate Officer, Chandigarh for approval. On 10th June, 1999, Chandigarh Administration sanctioned the building plan. According to Gurdwara Sahib. Gurdwara Sahib became eligible to raise construction in accordance with the building plan submitted by them and got sanctioned by them on 10th June, 1999 from the Estate Officer, Chandigarh. In view of this, defendant made an application to the court for passing an appropriate order regarding the use of common wall between the house of the plaintiff and the residential plot of the defendant. Another application was moved by the defendant for implementation of the order dated 15th June, 1998 through police help. Plaintiff opposed this application moved by the defendant seeking the modification of the order dated 15th June, 1998 passed by the court saying that the order dated 15th June, 1998 had become final and there is no change in the circumstances entitling the defendant to file this application. It was reiterated that the defendant could not raise construction on the common wall without the consent of the plaintiff. Defendant had no right to demolish the common wall. Defendant should have challenged the order dated 15th June, 1998 through appeal or revision. Approval of the sanctioned plan by the Chandigarh Administration was of no consequence. Building plan sanctioned by the Estate Officer. Chandigarh is not binding on thedefendant as, if construction is raised in accordance with it, there will be damage to the property of the plaintiff. Further, if this application as allowed and the order dated 15th June, 1998 is modified and the defendant raises construction, this suit will become infructuous. There will be damage to his common wall/drive way/projection/balcony of ihe annexe. Defendant is only co-owner and cannot construct on the common wall without the consent of the plaintiff. In would be irreparable injury and damage to his property rights. Vide order dated 3rd January, 2000, Civil Judge (Junior Division), Chandigarh modified the order passed by him on 15th June, 1998 and passed the following order :-
'Defendant is at liberty to proceed with the construction strictly in accordance with the revised building plan as approved by the Chandigarh Administration, vide its order No. 4893/RP/19964 dated 10th June, 1999. Plaintiff shall disclose the reasonable costs of construction of the common wall to the defendant within one month and the defendant shall pay half of the costs of the common wall to the plaintiff failing which the defendant shall be at liberty to move application for appointment of local commission for assessing the costs of the common wall.'
4. Plaintiff's application for the provision of police help for the implementation of the order dated 15th June, 1998 was declined. Plaintiff went in appeal against the order dated 3rd January, 2000 of Civil Judge (Junior Division), Chandigarh wherethrough orderdated 15thJune, 1998 was modified. Appeal was dismissed by Additional District Judge, Chandigarh, vide order dated 11th January, 2000. Plaintiff filed revision against the order dated 11th January, 2000 of Additional District Judge, Chandigarh affirming that of Civil Judge (Junior Division), Chandigarh dated 3rd January, 2000 namely Civil Revision No. 115 of 2000. After the order dated 11th January, 2000 was passed by Additional District Judge, Chandigarh plaintiff filed suit No. 20 on 12th January, 2000 against Par-bandhak Committee Gurdwara Sahib Patshahi Dasween, Sector 8-C, Chandigarh for declaration declaring the site plan of residential plot No. 1120 being in violation of rule 20 of the Punjab Capital (Development and Regulation) Building Rules, 1952 and for mandatory injunction restraining defendant (Gurdwara Sahib) from proceeding with construction on the plot No. 1120 on the basis of sanctioned plan dated 10th June, 1999. It was alleged in the plaint that if the defendant was allowed to raise construction in accordance with the sanctioned plan dated 10th June, 1999 which is in violation of rule 20 of the building rules, there will be irreparable injury to him as it would result into the demolition of his boundary wall/drive way/projection/balcony of the annexe portion of his house. It was also alleged that he would be deprived of his easmentry rights of free air, sunlight and ventilation which he has been enjoying for the last 30 years. It was also alleged that the balance of convenience is in his favour as there is legal right vesting in him to en-sure that the Gurdwara Sahib raises construction on the adjoining plot in accordance with the rules and that no damage accrues to his property. Along with the plaint, he made an application for the grant of temporary injunction. Defendant Gurdwara Sahib opposed this application saying that in the previous suit, Gurdwara Sahib had been directed to get building plan sanctioned and then to start construction. Gurdwara Sahib got the building plan sanctioned on 10th June, 1999. Gurdwara Sahib moved an application for the modification of that order dated 15th June, 1998 which was modified on 3rd January, 2000. Plaintiff's appeal against the order dated 3rd January, 2000 was dismissed on 11th January, 2000. After plaintiffs appeal was dismissed on 11th January, 2000, he filed this suit which is abuse of the processor the court. Plaintiff is pursuing two separate remedies simultaneously. Plaintiff raised objection based on Rule 20 of the building Rules before the appellate Court. How could he raise this objection over again through another suit It was further urged that the plainliff is stalling construction on residential plot No. 1120 of Gurdwara Sahib by means fair or foul. Defendant shall be intending to use and strengthen the common wall. Plaintiff has misulilized the common wall for building garage. He has no right to challenge the use of the remaining wall by the neighbour. There shall be no irreparable loss to the plaintiff if construction is raised. If no construction is allowed to be raised, there will be irreparable loss to the defendant. Vide order dated 5th April, 2000, Civil Judge (Junior Division), Chandigarh declined this application.
5. Plaintiff went in appeal against this order dated 5th April, 2000 which was dismissed by Additional District Judge, Chandigarh vide order dated 17th April, 2000. Aggrieved from this order dated 17th April, 2000 of Additional District Judge, Chandigarh, plaintiff has come up in revision to this Court (Civil Revision No. 1465 of 2000).
6. At the outset, learned Counsel for the respondent submitted that it was a suit for mere declaration and in a suit for mere declaration, no relief of interim injunction could be granted. In support of this submission, he drew my attention to Subedar Shingara and another v. Brigadier CHDO Callaghan and others, AIR 1946 Lahore 247 where it was held that a simple suit for declaration than an ordinance promulgated by the Governor General is ultra vires cannot be maintained within the meaning of Section 42 of the Specific Relief Act as it does not ask for a declaration either in regard to any property or in regard to any legal character of any individual but the case is different if such a point arises collaterally between two parties. At page 256, it was observed that as suit was not properly instituted, no injunction could have been granted in the suit and must be held to have been rightly discharged by the Subordinate Judge. He drew my attention to Gram Panchayat of village Bhaddi v. Om Parkash, 1987 P.L.J. 632 where it was held that where in a suit for declaration, plaintiff is entitled to further relief of man-datory injunction but he does not claim that relief, suit is not maintainable as a mere declaratory decree is not executable. Plaintiff purchased certain trees at open auction held by the gram panchayat of village Bhaddi. Gram Panchayat cancelled the auction sale in favour of plaintiff directing fresh auction of the trees. Plaintiff filed suit for declaration that he is a bona free auction-purchaser of the trees standing in shamilati area on the basis of an open auction and the cancellation of the auction is null and void and without jurisdiction. It was held that mere suit for declaration was not maintainable as he was entitled to seek further relief of mandatory injunction. It was submitted that this objection could be raised at any point even in revision. In support of this submission, he drew my attention to Kishan Lal v. Beg Raj. A.I.R. 1952 Pb.387 where it was held that where the suit itself is not competent under Section 42 of the Specific Relief Act and the suit is not otherwise competent, then the objection to its competence can be raised at any stage even for the first time in second appeal. It was further submitted that if on a perusal of the plaint the court considers that it is one in which further relief should have been asked for, then it will refuse to grant declaration. In support of this submission, he drew my attention to Bishan Sarup v. Musa Mal and others, A.I.R. 1955 Allahabad 817 where it was held that a court has ample power to decide for the purpose of determining the court fee to be paid whether in substance a plaint is one in which mere declaratory relief is claimed or declaratory relief combined with consequential relief is claimed or declaratory relief plus sub-stantive relief is claimed. At page 529 of the report, it was observed that if on a perusal of the plaint, the court considers that it is one in which further relief should have been asked for, then it will refuse to grant declaration.
7. Learned counsel for the petitioner-plaintiff, on the other hand, submitted that in a suit for declaration also, temporary injunction can be allowed to enure till the disposal of the suit so that property could be preserved in its present state although the main suit is one for declaration in which temporary injunction had not been asked for. In support of this submission, he drew my attention to Smt. Giano v. Bhim Singh and another, 1977 P.L.R. 601 where it was held that it is not possible to lay down as a matter of law either that an injunction can always be granted in a suit for declaration or that no injunction can everbe granted in such a suit. On the facts of each case, it will have to be decided whether the permission for injunction does not fall within the four comers of either Rule 1 or Rule 2 of Or-der 39 CPC. He drew my attention to Smt. Chanderkanta v. Sunita Jain and others, 1993(2) P.L.R. 327 where it was held that temporary injunction to enure till the disposal of the suit for declaration could have been asked for because the object of this temporary injunction could only have been to preserve the property in its present state. Even otherwise if the court is to entertain this feeling during the trial of the suit that mere suit for declaration without asking for conse-quential relief was meaningless, the court would not be able to dismiss the suit forthwith. Court will have to allow him time for amending the plaint into one for consequential relief.
8. Keeping in view the facts and circumstances of the case, I think there is no defect in the form of the suit which is a mere suit for declaration where no consequential relief in the shape of injunction had been claimed. Learned Counsel for the petitioner submitted that the court should have granted him temporary injunction when the building plan sanctioned by the Estate Officer, Chandigarh was sanctioned in violation of Rules 20 and 26 of The Punjab Capital (Development and Regulation) Building Rules, 1952.
9. It was submitted that the respondent is required to leave 3 metres open place on all sides and construction can be raised on the other space. Rule 20 reads as follows :-
'20. Minimum Area of Courtyard - For interior open space for tight and ventilation, the whole or part of one side or one more intended for human habitation and not abutting on either the front, rear or side open space, shall abut on an interior open space whose minimum widths in all directions shall be 3 metres in case of buildings not more than 10 metres in height and subject to the provisions of the increasing the same with increasing height as per table below :-
Sr. No.
Height of Buildingupto
Interior open space to be leftout on all sides (front, rear and sides in each plot)
1.
10M
3M
2.
15M
5M
3.
18M
6M
4.
21M
7M
5.
24M
SM
6.
27M
9M
7.
30M
10M
Note - (i) No projection shall be allowed within the minimum width of the courtyard in any direction as mentioned in the table above.
(ii) The table shall also be applicable in case of exterior open spaces permitted within the zoning regulations.'
10. Rule 26 of these rules lays down that the height of boundary wall or fence shall be in accordance with the provisions of zoning plan and shall conform to the pattern on boundary wall laid down for such a plot on the zoning plan both of design and specifications. Rule 19 lays down that the erection or re- erection of every building shall comply with the restrictions of the zoning plan and the schedule of Clauses appended thereto and the architectural control sheets if applicable. In Rule 2(xvii), 'courtyard' has been defined as meaning an area open to the sky but within the boundary of a plot which is enclosed or partially enclosed by build-ings, boundary walls or railing which may be at ground floor level or any other level within or adjacent to a building. 'Party wall' as defined in Rule 2(xxxiv) means a wall partly constructed on one plot of land and partly on an adjoining plot and serving both structurally. 'Structural wall' shall mean a load bearing wall or a wall that carries load in addition to its own load. It was submitted that a person who erects or re-erects or occupies any building shall comply with these rules and in addition shall comply with the restrictions shown on the zoning plans. It was submitted that Chandigarh was designed to be a planned city, there being no haphazard or unplanned growth and with this object in view, therefore, Capital of Punjab (Development and Regulation) Act, 1952 was enacted. Section 4 of this Act lays down that:
'(1) for the purpose of proper planning or development of Chandigarh, the Central Government or the Chief Administrator may issue such directions, as may be considered necessary, in respect of any site or building, either generally for the whole of Chandigarh or for any particular locality thereof regarding any one or more of the following matters namely :-
(a) architectural features of the elevation or frontage of any building:
(b) erection of detached or semi-delached buildings or both and the area of the land appurtenant to such building :
(c) xxxx xxxx xxxx xxxx
(d) prohibition regarding erection of shops, workshop, warehouses, factories or buildings of a specified architectural character or building designed for particular purposes in any locality :
(e) xxxx xxxx xxxxxxxx xxxxxxx
(f) restrictions regarding the use of site for purposes other than erection of buildings.
(2) Every transferee shall comply with the directions issued under sub- section (1) and shall as expedi-tiously as possible, erect any building or take such other steps as may be necessary, to comply with such directions.'
11. It was submitted that so that the object of the enactment of the Capital of Punjab (Development and Regulation) Act, 1952 was not defeated, one is required to comply strictly with the provisions of this Act and the Rules framed thereunder. There can be no let up or laxity in favour of any one so far as compliance of the said Act and the Rules framed thereunder is concerned. Prior to 22nd January, 1993, when Rule 20 was amended, Rule 20 was reading as under :-
'20. Minimum area of the courtyard. - The minimum superficial area of every closed courtyard of a residential building upon which inhabited rooms abut shall be one-fourth of the aggregate floor area of the rooms and verandahs on the ground floor abutting on the courtyard. Provided that such courtyard shall not be less than 1000 squarefeet in area and the minimum width of every such courtyard in any direction shall not be less than 8 feet. Notwithstanding the above the width of the courtyard shall not be less than half the mean height of the abutting building or enclosed walls.
In determining the said aggregate floor area of the rooms and verandahs abutting on the courtyard -
(a) only one-half of the floor area of such rooms and verandahs as abut on another courtyard on an open space or road not less than 15 feet in width shall be taken into account:
(b) any room which is separated only by an open verandah from courtyard shall for the purpose of this Rule, be deemed to abut on such courtyard.
(c) any portion of a courtyard covered by a cantilever, jali, verandah or other obstruction shall be omitted in calculating the area of the courtyard for the purpose of this Rule.'
12. It was submitted that as the plan submitted by the defendant got sanctioned from the Estate Officer, Chandigarh does not conduce to the provisions of Rules 20 and 26 of the said Rules, the defendant cannot be permitted to raise any construction and if he is permitted to raise any construct ion that will be in violation of those rules and the violation of those rules will be visiting the plaintiff with irreparable loss and injury. It was submitted that the plaintiff has a prima facie case in his favour inasmuch as the proposed construction is in violation of the said rules and the proposed construction, if permitted, will cause him irreparable loss and injury. Every owner has same rights in a 'party wall' and he is entitled to its user in a reasonable way. He can even raise its height provided he admits the newly erected portion of the wall ajoint property of all the co-owners. He can also support his building on the common wall if that does not cause damage to the other co-owners. If a co-owner wants to raise construction on the common wall with the purpose of ousting the other co-owner the ousted co- owner is entitled to raise objection regarding the construction. It was submitted that the raising of the party wall and using it by the defendant without the consent of the plaintiff would be permissible if the plaintiff does not suffer any damage. It was submitted that if the party wall is for the support of the building of both the plaintiff and the defendant, plaintiff cannot be said to suffer any damage if the defendant supports his building on the party wall. It was submitted that the co-owner cannot use the party wall without the consent of the other co-owner if the use of the party wall by him causes damage to him say, if there will be any diminution of light and air to him by the use of such party wall. He sought to draw support from Sardari Lal Gupta v. Siri Krishan Aggarwal, A.I.R. 1984 P&H; 439 'If a co-owner raises the common wall and such an act is likely to cause damage to the adjoining property or the common wall, the use thereof is not reasonable and any co-owner who is aggrieved may have remedy at law. When without injuring the common wall or the adjoin-ing property a co-owner makes a reasonable or profitable use of it cannot be said that he makes an unreasonable use of property.' In para 14, the Hon'ble Division Bench made these observations : 'The houses which the common wall divides were made many years ago; they would require repair or need modern reconstruction to suit the requirements of the occupiers.' In para 15, the observations are that raising of the party wall and using it by the appellant without the consent of the respondent is permissible if the respondent does not suffer any damage. In para 19, it was observed that co-owners of the wall do not have a right to open ventilators or widows or other openings in it except by an agreement with the other co-owner or under a statutory provision. If any, window etc. has been kept in such a wall, the other co-owner has a right to close and make use of that portion on his side. The co-owner having window etc. cannot acquire right to easement of light and air through a parly wall. The party wall must ordinarily be construed to mean a solid wall without windows or openings and in the absence of statutory regulation 01 express agreement between the parties the right exisis either 10 close such openings or windows as may have been placed in the said wall at a time when one of the plots was vacant. Plaintiff-respondent cannot claim right of easement regarding air and light to his building through the common wall. In this situation, it cannot be held that the respondents shall suffer any damage if the appellant supports his building on the party wall and closes the ventilator.
13. Ratio of AIR 1984 Punjab and Haryana 439 (supra) is that each co-owner is entitled to use the party wall provided by doing so he does not cause any damage to the other co-owner.
14. In this case, thus, we have to find out whether raising of construction by the defendant on plot No. 1120 by use of the common wall (party wall), common to plot No. 1119 where residential house is lying built by the plaintiff will cause damage to the plaintiff and that damages would be irreparable not assessable in terms of money. In Bishan Dass and another v. Roshan Lal Mehta and another, 1990 C.C.C. 406 also it was held that use of party wall as support for a proposed building without the consent of the other party is permissible if it does not cause any damage to the other party. In 1990 CCC 406 (supra), plaintiff sought permanent injunction to restrain defendants from making any construction in their house by placing refers on the wall situated between their houses. Defendants took the plea that it was a common wall of the parties and they were, therefore, well within their right to make construction and to use the common wall for (his purpose. Plaintiff's suit was dismissed by the trial Court on the finding that the wall in question was the common wall of the parlies and it was specifically found in this behalf that the roof of the house of the defendant was supported by this wall and the staircase also rested upon it. On appeal, the suit was decreed by the appellate court holding that the wall was the exclusive property of the plaintiff. It was further observed that even ifthe existing wall was held to be joint, it does not necessarily follow that any further construction on it would also be joint. In Regular Second Appeal, the lower appellate court's judgment was set aside and that of the trial Court was restored. It was held that the raising of a party wall for use as a support for a proposed building without the consent of the other party is permissible if. it does not lead to any damage to the other party. It was submitted that the defendant Gurdwara Sahib could not be allowed to make use of common-wall (party wall) while raising construction on this plot No. 1120 without his consent because the raising of construction would result in the demolition of a substantial portion of the common wall and its conversion into a load bearing wall. It was submitted that in case the defendant is allowed to construct on the common wall by demolishing it until 41 feet, the drive way, projection, balcony of the annexe portion of the plaintiff's house would have to be demolished thereby causing severe damage to his property. It was submitted that if the defendant Gurdwara Sahib is permitted to raise construction according to the revised plan submitted by it, got sanctioned from the Chandigarh Administration, that construction will be violative of Rules 20 and 26 of the aforesaid Rules. Section 4 of the said Act has barred the erection of building in contravention of building Rules framed by the Central Government for regulating the erection of buildings.
15. It was subm itted that at this sage, the court is not required to examine meticulously whether the building plan sanctioned by the Chandigarh Administration in favour of the defendant is in accord with the building rules known as the Capital of Punjab (Development and Regulation) Building Rules, 1952. It was submitted that the construction proposed to be raised by the defendant on the common boundary wall per the certificate of their architect M/s. Kuljit and Associates will result in the demolition of the common wall. That certificate says that the common existing boundary i.e. 41.9' minus 17.6' = 24.3' is required to be raised from a height of 3'-8.5' to a height of 18.9' from road level for constructing single storey portion of Plot No. 1120 and the same is required to be constructed load bearing by demolition of 24.3' length of boundary wall to be built by the owner of plot No. 1120. According to the sanctioned building plan, plot No. 1120 approved by Chandigarh Administration, the common existing boundary wall i.e. 41.9' minus 17.6' = 24.3' is required to be raised to the height of 18.9' from road level for constructing a single storey portion of plot No. 1120. The same is required to be constructed load bearing by demolishing 24.3' length of boundary wall to be built by owner of plot No. 1120. It was submitted that the constniction proposed to be raised by the defendant on the common boundary wall is violative of Rule 26 of the building rules read with para S(iv)(c) of the zoning plan of Sector 8 Chandigarh which specifically provides that the maximum height of a boundary wall cannot be more than 5-11.5' which is to ensure proper ventilation and sunlight to the adjoining plotholders. It was submitted that the plaintiff has prima facike case inasmuch as the sanctioned plan violates Rules 20 and 26 of the said Rules and the construction proposed to be raised by the defendant on the common boundary wall is violative of Rule 26 of the building rules read with para 8(iv)(c) of the zoning plan of Sector 8 Chandigarh which provides that the maximum height of a boundary wall cannot be more than 5'-11.5' which is to ensure proper ventilation and sunlight to the adjoining plot holders. It was submitted that the existence of a prima facie case does not mean that the plaintiff should have cent per cent case. All that it means is that the plaintiff should have a case which is not liable to be thrown at the threshold but is required lo be probed. In Sunehri and another v. Chatru and others, 1990 PLJ 204 it was held that a prima facie case means where facts alleged add upto a cause of action or cause in which plaintiff is entitled to the relief claimed by him. Consept of prima facie case for purposes of temporary injunction means is that what is averred is assumed to be correct where case succeeds on cause of action on which relief can be given by the court. It was further submitted by the learned Counsel for the petitioner (plaintiff) that the balance of convenience is in his favour inasmuch as if injunction is granted to him, the effect would be that the defendant will postpone the raising of construction til! the disposal of the suit whereas if no injunction is granted, the suit will be rendered infructuous and the defendant will raise construction forthwith thereby causing damage to his properly namely balcony, projection, drive way, common wall and also affect his easementary rights of fresh air, light and ventilation. It was further submitted that the learned trial Court without giving any finding on the aspect of damage to his property which was the very soul of the case, vacated the injunction already allowed to him and allowed the defendant Gurdwara Sahib to go ahead with the construction. It was submitted that by doing so, the learned trial Court has allowed the defendant to demolish the common wall/projection/balcony/drive way of his house without his consent which is in violation of the law laid down by the Hon'ble Division Bench of this Court in paras 12, 14 and 15 of AIR 1984 P&H; 439 (supra).
16. It was further submitted that the balance of irreparable injury principle is also in favour of the plaintiff as if injunction is not granted to him, he will suffer irreparable injury and the injury to which he is put to by the non-grant of injunction will not be assessable in terms of money inasmuch as he would be deprived of the use of his house consequent upon the demolition of the balcony/projection/drive way/common wall and the free flow of fresh air, light and ventilation.
17. Learned counsel for the defendant Gurdwara Sahib, on the other hand, submitted that the heading of Rule 20 says that it relates to the area of courtyard and not the plots where courtyard is to be left. As per zoning plan, in case of one kanal plot other than corner plot, a courtyard open space is required to be left or in front and in rear and in corner plot it is required to beleft on 3 sides i.e. front, rear and side. It was submitted that as per rule 20, for light and ventilation purposes, one side wall of each living room or part of one side wall and part of the other side wall of that room is required to abut open space. This abutting of the wall can be on the open space (courtyard) which are to be left as per zoning plan or it can be on the open space which the plot holder leaves of his own. It was submitted that in this case, western wall of the rooms 1 and 2 abuts the rear open space, rear courtyard as shown in Annexure R1/3. This rear courtyard (open space) is shown as EFGH and HI. Its EF and GHI sides are 33.9' and FG and EF side are 25.6'. It was submitted that each of them is thus much beyond 3 metres. Kitchen on common wall DM as sown in Annexure R1/H abuts open space left by defendant of its own. Two sides of it are 15.9' each and the other sides are 38.3' each. It was submitted that as such there is no violation of rule 20 and in case the interpretation sought to be put by the plaintiff is accepted that on all the four sides of the plot 3 metres length, breadth will have to be left, the defendant will be derived of its own covered area which the defendant has been permitted as per the zoning plan. The construction of rooms 1, 2 and kitchen will stand over-ruled and Gurdwara Sahib will remain short of the substantial covered area. Shri Fateh Singh Chug, Working President of the Gurdwara Parbandhak Committee has stated in his affidavit that total area of plot No. 1120 is 549.33 sq. yards = 4945 square feet. Permissible covered area on the ground floor is 1978 sq. feet = 219.77 sq. yards. Within this permissible area, an area measuring 1977.56 square feet = 249.73 square yards has been permitted to be covered on the ground floor as per approved building plan along side the boundary/party wall of plot No. 1119-1120. An area in width of 15-9' and length 80-6' is single storey zone. As per sanctioned plan out of this area, an area in width of 15-9' and length/depth of 41.9' has been permitted to be constructed as single storey zone in plot No. 1120. As per sanctioned plan, height of plinth level to road level is 1-6'. Clear height of roof is 10-6' and thickness of roof is 9'. As per zoning plan of plot No. 1120, Sector 8-C, Chandigarh along side the party wall of plot Nos. 1119 and 1120, an area of 15-9' in width and 80-6' in length measuring 1267.775 feet is in single storey zone. On its western side, an area measuring 1320 square feet length 55 feet and width 24 feet is double storey zone. On the western side of it, the balance area of the plot is an open zone. As per this zoning plan, in the front and rear, open spaces are required to be left. On the ground floor of plot No. 1120, as per the approved plan, actual covered area in double storey zone is 1320 square feet and in single stoey zone, it is 657.56 square feet. No part of the permissible double storey zone has been left whereas out of single storey zone area, an area measuring 610.315 square feet has been left out. In case, Gurdwara Sahib is not allowed to construct along side the party wall, then, it will be short of that much permissible covered area. In plot No. 1119, alongside the party wall of plots No. 1119 and 1120, an area in width 15-9' and length of 80-6' is sin-gle slorcy zone. Out of this area, the petitioner himself has built his garage with mezzanine in a length of 17.6'. Height of mezzanine above the plith level is 18'. To determine its actual height, the height of plinth level from road level will have to be added to it. It has been further stated in this affidavit by Shri Fateh Singh Chug that the plaintiff has constructed his garage with mezzanine on the party wall of plots No. 1119 and 1120 on the other side of his plot i.e. party wall of plots No. 1118 and 1119, he has constructed his whole main house. It has been sworn that when Gurdwara Sahib wants to construct on party wall of plots No. 1119 and 1120, the petitioner feels aggrieved. Gurdwara Sahib is going to construct its house as per sanclioned plan. He has brought sketch plan Ex. R3/5 on the record of this case showing the covered area of the respondent on ground floor, area statement, zoned area as per zoning plan of the respondent's plot, garage with mezzanine and schematic/approximate building lay out (built up area of petitioner in plot No. 1119) prepared by the architects of the respondents.
18. Shri Vipan Gupta. Sub Divisional Officer (Buildings), Estate Officer, U.T. Chandigarh has put in his own affidavit wherethrough he has stated thai the concept of construction as per zoning plan is that each kanai type plot is divided into two zones i.e. single storey zone and double storey zone. Maximum height permitted in the single slorey zone is 15.9'. The zoned area in respect of plot refers to the space or area where construction is permitted. He has annexed Annexure A1 which is copy of the zoning plan of Sector 8-C. Single storey zone is depicted with single line marking and double storey zone is marked with crossed lines. Permissible area of construction within the zoned area is further subjected to the restrictions detailed in clause 2 of Annexure A2. Construction of the building on these plots can be undertaken within the zoned area i.e. area marked either in single line or crossed lines while rest of the area in front, rear and sides has to be kept open as per the zoning plan. He has stated that the owner has, however, the privilege to have his planning within this hetched area with further limits of maximum permissible covered area in respect of house No. 1120, it is 1978 sq. feet and in respect of house No.1119 it is 1867.5 sq. feet calculated as per the zoning norms mentioned at serial number 2 of Annexure A/2. He has further stated that double line area of plot No.1120 shown in blue in the sketch Annexure A1 process the coverage of 55x24 feet which works out to 1320 square feet meaning thereby that remaining permissible coverage i.e. 658 sq. feet is to be obtained from the single line area. He has stated that the building plan of the respondent was rightly sanctioned permitting him actual permissible coverage of 657.56 sq. feet in the single line hetched area. He has further stated that the common wall within the hetched area which is supposed to fall within permissible coverage is to be considered as load bearing structural wall while rest of the portion of the common wall is considered as common boundary wall. He has further stated that the portion ofcommon wall falling within the permissible construction area cannot be termed as a common boundary wall for which maximum height of 38- 1/2' is to be maintained. He has further stated that each allottee has to draw light and ventilation from within his own plot area and not from that of the adjoining plot.
19. Learned Counsel for the respondent submitted that Gurdwara Sahib is within its right to raise construction according to the plan sanctioned by the Chandigarh Administration. It was submitted that plan was sanctioned by the Chandigarh Administration keeping in view the relevant building rules. It was further submitted that rule 20 of these rules cannot be read in isolation of the zoning plan. It has to be read in conjunction with the rules and zoning plan. As per rule 19 of the Rules, the erection or re-erection of every building is required to comply with the restriction of the zoning plan and the schedule of clauses appended thereto and the architectural control sheets, if applicable. Zoning plan is required to be got prepared in view of Section 4 of the Act.
20. It was submitted what rule 20 enjoins is not that interior open space is required to be left on all sides. It was submitted that as per rule 20, for light and ventilation purposes, one side wall of each living room or that room is required to abut open space. This abutting of the wall can be of the open space courtyard which are to be left as per zoning plan or it can be on the open space which the plot holder leaves of his own. In this case western wall of rooms 1 and 2 abuts the rear open space, rear courtyard. In Annexure R1/3, this rear courtyard open space is shown as EFGH and HI. Its EF and GH sides are 33.9' and EF and EH sides are 25.6'. Bach of this is thus much beyond 3 metres. Kitchen on the common wall DM shown in Annexure R1/H abuts open space left by the Gurdwara Sahib of its own. Two sides of it are 15.9' each and the other sides are 38.3' each. It was submitted that if rule 20 is interpreted like this, there is no violation of rule 20. It was submitted that the interpretation put by the plaintiff that open space has to be left on all sides might hold good so far as the bungalow type house is concerned. Bungalow type house as defined in rule 2(xii) shall mean a detached house standing within the boundaries of its own plot. It was submitted that if the interpretation put by the petitioner on rule 20 is accepted, every 10 marla and 5 marla house built after 22nd November, 1993 i.e. when rule 20 was amended, will have to be demolished as the reading of rule 1 sub-rule (a)(c) and rule 3(a) suggests that these rules are applicable to all the houses in Chandigarh and not only to one kanal and above and more than 1 kanal houses. In case 3 metres on both sides of a 10 marla house is required to be left, then out of a 10 marla plot whose dimensions are 30x75, only 10 feet space will be left back for construction and it will be impossible to construct a house thereon. In a 5 marla plot dimensions of which are 15x75 or 20x56, no space will be left to be constructed. It was further submitted that the petitioner had himself built his garage more than 30 years ago on this very wall. Heshould not be permitted to say now that upto the length of 80.6' which as per the zoning plan, is a single storey zone, any part of its remains boundary wall under the same formula whereunder 17.6' in length has been converted from boundary wall into party wall/structural wall by the petitioner Gurdwara Sahib is entitled to construct the portion JK Annexure R1/3 upto the height of 15.3'. This portion will be party wall and not boundary wall. It was submitted that on their sides i.e. common wail of house Nos. 1118 and 1119, the petitioner has built his whole house. It was submitted that if the interpretation put by the petitioner is accepted, he should not be permitted to build on the boundary wall. It was submitted that it is not the stage where rules are required to be interpreted so meticulously as rules shall be required to be interpreted meticulously when the suit comes up for final disposal. Here the question for consideration is whether temporary injunction should have been allowed to the petitioner or not and the respondent restrained from raising any construction on the common wall built by the plaintiff, without his consent.
21. As has been observed earlier, the question is whether temporary injunction should have been granted to the plaintiff even if he is assumed to have prima facie case in his favour. Mere existence of a prima facie case in his favour does not entitle him to the grant of injunction. He has to satisfy the Court that there will be irreparable injury to him if injunction is not granted and further the principle of balance of convenience is also in his favour that he will be put to greater loss if no injunction is granted, than the loss to which the defendant will be put if injunction is granted. It was submitted by the learned Counsel for the respondent that there will be no irreparable loss to the plaintiff. There will be no damage to the common wall as the common wall in length of 24'-3' is being made structural wall. Wall will get strengthened and not weakened. There will be no damage to the petitioner. There will be no damage to the drive way of the plaintiff. Drive way of the plaintiff was constructed more than 30 years ago and the width of the wall is being kept intact. As per sanctioned plan, the petitioner can construct only a garage with mezzanine used as a store. No living room with separate roof was permissible. For a garage with mezzanine no projection/balcony is required. If the petitioner has built any projection/balcony, there will be no loss to him with the construction of plot No. 1120 as the Gurdwara Sahib will only be raising the height of the common wall and not touching the construction made on the side of the plaintiff. It was submitted that even Gurdwara Sahib has given an undertaking that if there is any loss/damage to the drive way etc., it will be re-laid. In case of any loss to the plaintiff, compensation will be paid. It was further submitted that if at all there is damage to the plaintiff, that will be assessable in terms of money. In AIR 1984 P&H; 439 (supra), para 10, it has been held that it is settled proposition of law that if a person can be compensated by damages, courts do not gener-ally grant him the relief of injunction. While granting injunction in favour of a tenant-in- common regarding the joint properties, the settled principle is kept in view. It was also submitted that the plaintiff has himself raised construction of annexe on the common wall, he should also do equity to the defendant. He should not stand in the way of the defendant raising construction on the common wall.
22. It was submitted by the learned Counsel for the respondent that the balance of convenience principle is in favour of the defendant Gurdwara Sahib. It is not in favour of the plaintiff. Gurdwara Sahib has spent Rs. 80,11,000 on the purchase of the plot. Besides, it has to pay lease money and interest on the amount of Rs. 80,11,000 i.e. Rs. 3950 daily. Loss of lease money is Rs. 500 per day. Gurdwara Sahib is daily losing Rs. 4500. It was submitted that if Gurdwara Sahib is not able to raise construction within 3 years of the date when this plot was purchased by it as enjoined fay clause 19 of the allotment letter, there is every apprehension of the plot being resumed as perthe provisions of rule 20 of the Capital of Punjab (Development and Regulation) Rules, 1973. Further Gurdwara Sahib will be deprived of the right to have lease hold rights converted in free hold rights if they do not raise construction in time. They can apply till 31st December. 2000.
23. It was submitted that there is no right of easement to the plaintiff on the plot of Gurdwara Sahib. In AIR 1984 P&H; 439 para 19, it was held that the plaintiff-respondent cannot claim right of easement of air and light to his building through the common wall. Respondent shall not suffer any damage if the appellant supports his building on the 'party wall' and closes the ventilator. It was submitted that the plaintiff is required to make his own arrangements for getting adequate light and air for his own residential house. It was not the duty of the defendant to provide light and air to the plaintiffs residential house by building in a matter (manner ?) that adequate light and air reaches him. It was submitted that all that defendant Gurdwara Sahib is required is to raise construction in accordance with the zoning plan and the building rules (ibid). In the zoning plan and the building rules (ibid), care has been taken to see that no right of the adjoining plot holder is infringed by the construction on his own plot by the neighbouring owner.
24. It was submitted that in this case, temporary injunction was refused by the trial Court. Temporary injunction was refused by the first appellate court. Plaintiff is in revision before this court against the non-grant of temporary injunction to him. In revision, the High Court will not interfere with the exercise of discretion by the courts below if that discretion has been properly exercised by them and on well defined principle governing the grant of temporary injunction. It was submitted that if the revisional court feels that different view should have been taken, that would be no ground for the revisional court to vary the exercise of discretion by the courts below. In support of this submission, he drew my attention to Maman Chand v. Smt.Kamla, 1996(2) PLR 147. It was also submitted that the court should grant injunction where the plaintiff's right is clear and not where the plaintiffs right is doubtful or where he can be compensated in money, it is no ground to grant injunction to him merely on the theory that no material injury would result to the party concerned. He made this submission in view of the observations made in Union of India v. Bakshi Amrik Singh, AIR 1963 Pb. 104. In this case, temporary injunction allowed to the plaintiff earlier was vacated by the trial Court. His appeal was dismissed by the Additional District Judge. In revision, the discretion exercised while granting or refusing temporary injunction by the courts below shall be interfered with by this Court in the exercise of its revisional power only when the exercise of discretion by the courts below is found to be perverse and in flagrant abuse of the principle governing the grant of temporary injunctions. High Court in the exercise of its revisional jurisdiction will not interfere with the exercise of discretion by the courts below even if it feels that the discretion should have been exercised differently if the discretion could have been exercised by the courts below in the manner in which they have exercised their discretion.
25. It was submitted that the plaintiff used sharp practices, Gurdwara Sahib had served and moved a caveat in this court prior to the filing of this revision by the plaintiff. Plaintiff neither informed about the filing of revision nor gave copy of paper book to the caveator. On first hearing i.e. 17th January, 2000, Gurdwara Sahib came present after noting the case from the list and made submissions to the court that though it had already filed caveat, yet copy of the complete paper book had not been supplied to it by the petitioner. It was also submitted that the argument with regard to the legality of the sanctioned plan was raised before the trial Court and the appellate court. In revision, the plaintiff took a somersault and moved an application that the question relating to the illegality of sanctioned plan was not the subject matter of this suit. This revision is to be decided on merit. Court should not feel prejudiced by the use of sharp practices, if any, by the plaintiff. It was further submitted that the plaintiff's counsel committed contempt of the trial Court as welt as that of the appellate Court and he committed contempt of this court also by relying on AIR 1954 Pb. 125 which was overruled in AIR 1984 P&H; 439. I do not think any contempt was committed by the plaintiff if he cited AIR 1954 Pb. 125. After going thorough both the judgments, the court could come to know that AIR 1954 Pb. 125 had been over-ruled in AIR 1984 P&H; 439. Even otherwise no contempt is made out if the plaintiff did not intend duping the court. He had relied upon 1990 Civil Court Cases 406 in which AIR 1984 P&H; 439 had been relied upon. By going through AIR 1984 P&H; 439, the court would have none (knonw ?) that AIR 1954 Pb. 125 had been overruled. No contempt was thus committed by the plaintiff/counsel.
26. In view of what I have said above, it was justifiably found by the courts below that no temporary injunc-tion could be allowed to the plaintiff and the defendant should be allowed to raise construction according to building plan sanctioned by the Chandigarh Administration, vide letter dated 10th June, 1999. Plaintiff may have prima facie, case, while sanctioning the plan, the Chandigarh Administration may not have taken into account rules 20,26 or any other rule of the Capital of Punjab (Development and Regulation) Rules, 1952. Chandigarh Administration sanctioned the building plan submitted to it by the defendant for raising construction on plot No. 1120 but it cannot be assumed readily that the Chandigarh Administration was not aware of the implication of rules 20 and 26 and other rules while sanctioning the plan that the raising of construction by the defendant on their plot will bring about diminution of light and air to residential house No. 1119, Sector 8-C, Chandigarh and also damage its drive way etc. Balance of convenience and irreparable injury principle appears to be leaning in favour of the defendant. This revision fails and is dismissed.
27. Revision dismissed.