Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 1842 (RAJ)

Sunil Kumar Sharma v. Vijay Kumar

2021-09-27

DINESH MEHTA

body2021
JUDGMENT IA No.24918/2019: The application for early listing of the writ petition is dismissed as having become infructuous. IA No.1/2021: For the reasons stated, the application seeking early listing of the writ petition is allowed. The matter is taken up for consideration today itself. SBCWP NO.18756/2018: 1. By way of the present writ petition, the petitioner has laid challenge to order dated 16.7.2018 passed by the Appellate Court in an appeal filed by the respondent-defendant against the order dated 16.11.2017 accepting application of temporary injunction. 2. Shorn of the unnecessary details, the facts appertain are that the petitioner-plaintiff filed the suit for declaration, permanent and mandatory injunction alongwith an application for temporary injunction. 3. The trial Court allowed the application under Order XXXIX Rule 1 and 2 Code of Civil Procedure and restrained the defendants from alienating the property by way of sale, mortgage or otherwise while also injuncting the defendants from raising construction and getting the record of the property changed. 4. Against the order dated 16.11.2017 passed by the trial Court, the respondents-defendants preferred an appeal before the learned Addl. District & Sessions Judge, Chidawa, District Jhunjhunu, which was registered as Civil Appeal No.16/2017. 5. The Appellate Court after going through the record passed a detailed order considering all the necessary ingredients for grant of temporary injunction and allowed the appeal and set aside the order passed by the trial Court. 6. Laying challenge to the aforesaid order dated 16.7.2018 passed by the Appellate Court, the petitioner-plaintiff has preferred the present writ petition under Article 227 of the Constitution of India. 7. A Co-ordinate Bench of this Court after hearing both the parties was pleased to pass an interim order on 6.9.2018 and directed the respondents-defendants not to alienate the suit property and create 3rd party rights. Whereafter, vide order dated 13.10.2018, the writ petition was admitted and the interim order was however modified in the manner that the respondents-defendants were though restrained from alienating the property, but permitted to let out the property but with a stipulation that they would tender the record of receipt of the rent before the trial Court. The order dated 30.10.2018 reads thus: "Heard the counsel for the parties, I am of the considered view that in the facts of the case, the petition be admitted. The order dated 30.10.2018 reads thus: "Heard the counsel for the parties, I am of the considered view that in the facts of the case, the petition be admitted. The interim order dated 6.9.2018 is affirmed to the extent of restraining the respondent defendant from alienating the suit property. However in view of the fact that the respondent has made constructions over the suit property in his possession of which he is also the patta holder-even though the patta is under challenge in the suit-out of his own funds, I would permit him to rent the property subject to the condition that the rent shall be received only by bank cheques to faciliate account keeping thereof. Further the statement of rent henceforth received month to month be filed before the Trial Court on or before the fifteen day of the following month." 8. After hearing learned counsel for the parties and upon perusal of material available on record, this Court is of the view that the interim order passed by this Court meets the ends of justice and balances the equity. 9. Obviously, the respondents-defendants cannot be permitted to alienate the property till the suit in question filed by the plaintiff (petitioner herein) is pending. At the same time, the defendants can also not be restrained from enjoying the fruits of the property and deprived of even the rental receipts till the disposed of the suit. 10. In the opinion of this Court permitting the defendants- landlords to let the property out does not amount to alienating the property. That apart, this Court has struck a perfect balance of equity between the parties by directing the defendants to furnish accounts of rent receipts before the trial Court. 11. In the facts obtaining in the present case, the writ petition is disposed of while making the interim order dated 30.10.2018 absolute. 12. Till the disposal of the suit no.412/2016 pending before the trial Court, it will be required of the defendants-respondents to continue to furnish information of receipt of rent before the trial Court as already ordered by this Court. 13. While deciding the suit finally, the trial Court would also take into account the rent received by the defendants during the pendency of the suit. 14. The trial Court is requested to decide the suit expeditiously. 15. The writ petition as well as stay application stand disposed of accordingly.