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Rajasthan High Court · body

2012 DIGILAW 2119 (RAJ)

Bheru Singh v. Chhanv Kanwar (Smt. )

2012-10-10

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - Instant writ petition has been filed by the petitioner under Article 227 of the Constitution of India to challenge order dated 8.9.2008 passed by the Addl. District judge, Sojat in Appeal No. 18/2006 and impugned order dated 13.7.2010 passed by the Addl. District Judge, Sojat in the review petition by which the temporary injunction application filed by the respondent- plaintiff was allowed. 2. At the threshold, learned counsel for the petitioner submits that in the suit filed by the respondent-plaintiff in the Court of Civil Judge (Jr. Dn.), Sojat, an application under order 39 Rules 1 and 2, C.P.C. was filed and the trial Court after taking into consideration the important aspect of the matter that for the same relief earlier a suit No. 50/1996 was filed by the plaintiff which was dismissed by the Civil Judge (Jr. Dn.), Sojat City vide order dated 13.8.2001, therefore, no interim relief can be granted by the trial Court to the plaintiff. Said order was passed by the trial Court on 16.10.2006 in Civil Misc. Case No. 48/2005. Against that order an appeal was preferred in the Court of Addl. District Judge, Sojat and learned Addl. District Judge, Sojat allowed the appeal and passed an order to maintain status quo till disposal of the suit. The petitioner-defendant filed a review petition under Order 47 Rule 1, C.P.C. but, that, too, was dismissed vide order dated 13.7.2010. 3. In this Writ petition, the petitioner-defendant is challenging the validity of both the orders dated 13.7.20 10 as well as order dated 8.9.2008. 4. The basic argument of learned counsel for the petitioner is that for the same relief earlier a suit was filed by the plaintiff-respondent which was dismissed as not pressed on 13.8.2001. Thereafter, again, a fresh suit was filed in the year 2005 for claiming the same relief. Therefore, the trial Court while deciding the application for temporary injunction rejected the prayer for granting interim injunction but the appellate Court without considering the grounds taken by the petitioner granted stay in favour of the plaintiff-respondent which is totally illegal. 5. After hearing learned counsel for the parties, I have perused the prayer clause made in the Civil Suit No. 50/1996, so also, prayer made in the suit filed in the year 2005. 5. After hearing learned counsel for the parties, I have perused the prayer clause made in the Civil Suit No. 50/1996, so also, prayer made in the suit filed in the year 2005. In both the suits, a specific prayer was made that in pursuance of the document dated 18.10.1993 which is a registered will no mutation or khatedari right may be made in favour of the petitioner-defendant, so also, the said will may be declared void and ineffective against the plaintiff; and, admittedly the earlier suit was dismissed as not pressed without granting any liberty to file fresh suit. 6. Therefore, in my opinion, at the time of deciding the application vide order dated 16.4.2006 in Civil Misc. Case No. 48/2005 the trial Court rightly rejected the prayer for temporary injunction but the appellate Court failed to decide the ground taken by the petitioner. 7. Therefore, this writ petition is allowed. The order impugned dated 8.9.2008 passed by the Addl. District judge, Sojat in Appeal No. 18/2006 and impugned order dated 13.7.2010 passed by the Addl. District Judge, Sojat in the review petition are hereby quashed and set aside and order passed by the trial Court dated 16.4.2006 is maintained.Writ petition allowed. *******