Injunction, not to demolish while the suit is pending
sudhirghabasu
(Querist) 22 January 2012
This query is : Resolved
sirs , good wishes to all our learned experts, Sirs my query is my client has a 1/3 undivided share in the ancestral property, there is dispute in the family, hence my client and the other co-sharer had file a suit for partition and injunction not to alienate the suit property against the other share holder, he had also received summons in the same and is also appearing.while the suit is pending the defendant had started demolishing the property, without the knowledge of my clients. After starting the demolishing work he had filed a caveat.
My query is 1) Whether the caveat is maintainable while the suit is pending and also the defendant has knowledge about it.
2) Can i file a interlocutory application restraining the defendant from demolishing and reconstructing the property until the disposal of the suit, without amending the plaint, or else i should have to amend the plaint and than ask for the relief for not to demolish.
3) I had decided to file 2 I.A. one for restraining the defendant from demolishing and reconstructing the suit property and another for appointment of advocate commissioner to inspect the property and file a report about the situation.
Can i proceed with my decision without amending the plaint. Please advice me also some citation if possible. thanking you in anticipation.
Devajyoti Barman
(Expert) 23 January 2012
1. Caveat is for order not to be passed ex parte, not for this action.
2.You have file petition for contempt of court u/o 39 Rule 2A of CPC.
For these you do not need amendment of plaint if you succeed after trial.
Raj Kumar Makkad
(Expert) 23 January 2012
If you do not file a separate case then there is no relevance of such caveat. I think you should photograph the ongoing demolishing proceeding being done by defendant mentioning thereon date and time so that you may prove this change as Lis Pendence.
As stay order has not been granted in your favour as on day so question of filing application under order 39 Rule 2A as suggested by Barman do not arise.
You need not amend the plaint at this time rather proceed with your applications and ensure immediate action thereon.
V R SHROFF
(Expert) 23 January 2012
My query is 1) Whether the caveat is maintainable while the suit is pending and also the defendant has knowledge about it. NO, IF U OBTNED STAY.
2) Can i file a interlocutory application restraining the defendant from demolishing and reconstructing the property until the disposal of the suit, without amending the plaint, or else i should have to amend the plaint and than ask for the relief for not to demolish.YES
3) I had decided to file 2 I.A. one for restraining the defendant from demolishing and reconstructing the suit property and another for appointment of advocate commissioner to inspect the property and file a report about the situation. YES IT IS FINE ; GET PHOTO WITNESS, ASK INJUNCTION EX-5 IMMEDUIATELY. SHD HAVE DONE ALONG WITH FILING SUIT , THE VERY FIRST STEP, EX-PARTE
Can i proceed with my decision without amending the plaint. Please advice me also some citation if possible. thanking you in anticipation. U SHD DO IT. APPLICATION FOR INT RELIEF
prabhakar singh
(Expert) 23 January 2012
1) I think since you did not seek injunction specifically against demolition,he has taken this smart step.
2)It appears you do not comprehensibly word your relief clause,as i saw another query of this nature from you.
You should amend main relief clause before you seek interim injunction but what teases me is the fact that when demolition has already taken place all efforts would be infructuous,the things have already traveled at chowk of damages.
3)It is required to be done as you have decided.
