JUDGMENT D. K. Seth, J.
1. The petitioner as plaintiff had filed a suit being O. S. No. 378 of 1998 before the learned Civil Judge, Junior Division, Hapur, Ghaziabad against the Opposite Party No. 3 and one Nagesh Tyagi as defendant Nos. 1 and 2 respectively for injunction restraining the defendants from demolishing the disputed wall as shown in the plan for the purpose of using the property as ingress and egress for the defendants' property. In connection with the said suit, an application for injunction was filed. The learned Civil Judge had passed an order of status quo initially by an order dated 24th April, 1999. Aggrieved the defendant No. 1 filed an appeal against the said order dated 24th April, 1999 being the Misc. Civil Appeal No. 36 of 1999. By an order dated 25th August. 1999 passed by the learned Additional District Judge, Hapur, the appeal was allowed. It is this order which has since been challenged.
2. Mr. Anil Kumar Bajpai, learned counsel for the petitioner contends that the order of the Appeal Court suffers from perversity and as such, is liable to be set aside. According to him, the property belongs to one Ashok Housing Society and that the wall also belonged to the said society. The said land was appurtenant to the property of the plaintiff which he used for his ingress and egress and if the defendant is permitted to use the same in that event, the privacy of the plaintiff would be interfered with and that the defendant has no right to use the said property. He also claims easement right over the said properly.
3. Mr. S. S. Tyagi, learned counsel for the opposite party, caveater on the other hand contends that by reason of U. P. amendment of Rule 2 of Order XXXIX. no injunction could be granted tn the suit as framed. He also contends that the suit is not maintainable in view of Section 38 read with Section 41 of the Specific Relief Act and as such, prima facie the plaintiff has not been able to make out a case. He also contends that the necessary parties have not been impleaded in the suit and that no relief can be had against the defendants without Impleading the Ashok Housing Society whom the plaintiff himself had admitted to be the owner of the land used as road and the alleged wall. He further contends that on a consideration of payment of Rs. 25.000 to the said Housing Society, the Housing Society had undertaken the development of the said road permitting the defendant to use the road for his ingress and egress from his property. In such circumslances. no relief could be had against the defendant since it was the Housing Society who is the owner of the property and had permitted the defendant to use the same in view of the consideration as is apparent from the material placed before the learned appeal court which is not a disputed proposition.
4. I have heard both the counsel at length.
5. Admittedly, from the plaint, it appears that defendant had admitted that the wall belong to the Housing Society which is apparent from paragraph 5 of the plaint. It is alleged that the land, which is being used by the plaintiff for ingress and egress also belongs to the Housing Society, which is apparent from paragraph 6 of the plaint. From the four corners of the plaint, no case of easement appears to have been made out. The relief that has been claimed tn the prayer is for restraining the defendant from demolishing the wall and using the property for his passage for ingress and egress. No where it is claimed that the property of the plaintiff is being encroached upon or is being interfered with. After having admitted, that the property belongs to the Housing Society and on the face of the material on record to show that the Housing Society in lieu of consideration of a sum of Rs. 25,000 had undertaken the development of the said land permitting the defendant to use the same as his passage from his property, the suit cannot be maintained against the defendant without impleading the society. In such circumstances, no perpetual injunction could be claimed within the meaning of Section 38 of the Specific Relief Act which specifies the grounds on which the perpetual Injunction can be had. The plaint as It appears is excepted within the scope and ambit of Section 38 of the Specific Relief Act. Thus, it appears that the plaintiff does not have any personal interest in the matter so far as the wall is concerned. In as much as in the plaint, no case for easement has been made out. Unless a case for easement is made out, the plaintiff cannot claim any interest either on the wall or in the road. Therefore, even under Section 41, clause (j) of the Specific Relief Act, no injunction could be asked for. Thus, it appears to be a case covered within clause (a) of sub-rule (2) of Rule 2 of Order XXXIX as amended and applicable in U. P.
6. That apart, when it is admitted that the land belongs to the Housing Society and the Housing Society has granted permission to the defendant, no relief can be had against the defendant without impteading the said Housing Society. Since no relief is claimed against the Housing Society who has permitted the defendant to use the property in lieu of the consideration and had undertaken the development Itself, prima facie It appears that the plaintiff has not been able to make out a prima facie case. In such circumstances, I am not inclined to interfere with the order passed by the learned appeal court.
7. The writ petition therefore, fails and is, accordingly, dismissed. However, there will be no order as to costs.
8. But however, it may be noted that all findings and observations made in this order are tentative for purpose of deciding the question of grant or refusal of the injunction. The observations or the findings made in this order or in the order dated 25th August, 1999 passed by the learned Additional District Judge. Hapur in Civil Misc. Appeal No. 36 of 1999 shall not be taken note of while deciding the suit on merit. It is expected that the suit be decided expedltiously.