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2011 DIGILAW 2093 (RAJ)

Dharam Nariyan v. State of Rajasthan

2011-09-27

BELA M.TRIVEDI

body2011
JUDGMENT 1. - The present petition has been filed under Article 227 of the Constitution of India challenging the order dated 17.5.2011 passed by the Civil Judge(J.D.) Pushkar, Ajmer (hereinafter referred to as the 'Trial Court') in CM No.26/11 (CS No.27/11), whereby the Trial Court declined to grant ad interim relief as prayed for by the petitioners-plaintiffs. 2. Heard learned counsel for the parties. 3. It appears that the present petitioners have filed the suit in the representative capacity against the present respondents (original-defendants) seeking permanent injunction. The petitioners also filed an application under Order 39, Rule 1 and 2 of Code of Civil Procedure seeking temporary injunction against the respondents-defendants. Pending the said application for temporary injunction, the petitioners insisted for grant of ad interim relief, however, the Trial Court vide its order dated 17.5.2011 declined to grant the same and directed the respondents-defendants to file the reply to the said application. Being aggrieved by the said order, the petitioners have preferred the present petition. 4. It has been submitted by learned counsel Mr. PC Bhandari for the petitioners that the Trial Court had mis-interpreted the decision of the High Court in the case of Gulab Kothari v. State and not granted ad interim relief. He also submitted that the respondents No.1 and 2 had changed the use of the land in question though the said land was in the green belt of the master development plan. According to him, the respondent No.3 who is defendant No.3 in the suit was bent upon in using the land for commercial purposes which is not permissible in view of the said decision of this Court. Learned Sr. counsel Mr. R.K. Mathur for the respondent No.3, however, has submitted that the present petition having been filed against non-granting of ad interim relief, the same is not maintainable under Article 227 of the Constitution of. He also submitted that respondent No.3 has already submitted his reply before the Trial Court and the application for temporary injunction under Order 39 Rules 1 and 2 is still to be decided on merits. 5. Having regard to the submissions made by the learned counsels for the parties and the impugned order passed by the Trial Court, it transpires that the petitioners have rushed before this court though their application for temporary injunction is pending before the Trial Court. 5. Having regard to the submissions made by the learned counsels for the parties and the impugned order passed by the Trial Court, it transpires that the petitioners have rushed before this court though their application for temporary injunction is pending before the Trial Court. It appears that by the impugned order dated 17.5.2011, the Trial Court had refused to grant ad interim relief as prayed for by the petitioners and directed the respondents to file their reply to the application. Under the circumstances, as rightly submitted by learned Sr. counsel Mr. Mathur, the present petition against the non granting of ad interim relief would not be maintainable under Article 227 of the Constitution of India. Since the main application for temporary injunction filed by the petitioners is pending before the Trial Court, and since the respondent No.3 who is the contesting party has also filed his reply, the said application is required to be decided by the Trial Court on merits. The learned counsel Mr. Bhandari apprehended that prima facie observations made by the Trial Court in the order dated 17.5.2011 shall come in the way of the petitioners while deciding the main application of temporary injunction. It is needless to say that the Trial Court shall decide the application for temporary injunction on merits without being influenced by the prima facie observations made by it in the impugned order dated 17.5.2011. 6. In that view of the matter, there being no merits in the present petition, the same deserves to be dismissed and is accordingly dismissed. 7. Consequent upon the dismissal of the writ petition, the stay application is also dismissed.Petition dismissed. *******