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Rajasthan High Court · body

2021 DIGILAW 71 (RAJ)

Gopal S/o Shri Kajod v. General Public, Rajgarh

2021-01-12

ASHOK KUMAR GAUR

body2021
ORDER : 1. The present writ petition has been filed by the petitioners challenging the order dated 24.07.2020 passed by the Appellate Court, in appeal filed by the petitioners against the order dated 29.11.2019, whereby the Mandatory Injunction application was accepted and direction was given against the petitioners for removal of obstruction in right of way within 15 days and if the petitioners failed to remove the obstruction within a period of 15 days, the said obstruction was to be removed with police assistance. 2. Learned counsel for the petitioners-defendants submitted that the Appellate Court though allowed the appeal of the petitioners vide order dated 24.07.2020, however, further direction has been given to allow the parties to use the way for a period of six months and further direction has been issued to maintain status quo in respect of way in dispute. 3. Learned counsel for the petitioners submitted that once the order of Mandatory injunction dated 29.11.2019 was set aside, then there was no occasion for the Appellate Court to give further direction to both the parties to allow the right of way to the other persons-residents of Bairwa Basti. 4. Learned counsel for the petitioners further submitted that the land in question belongs to the petitioners and as such the other persons cannot be permitted to use right of way in private land. Learned counsel for the petitioners submitted that once the Appellate Court found that the mandatory injunction was not to be granted in the facts of the case, then there was no occasion to give further direction. 5. Learned counsel for the petitioners submitted that initially S.B. Civil Writ Petition No. 10399/2020 (Aam Janta Gram Dabla Mev and Others vs. Gopal and Others) was filed by the respondents-plaintiffs and this Court, at the time of admission, vide order dated 15.09.2020 permitted the plaintiffs (petitioners therein) to withdraw the writ petition with liberty to move appropriate application before the Appellate Court, and bring out the relevant facts about initial Temporary Injunction Application and subsequent Mandatory Injunction Application, filed by the plaintiffs. 6. Learned counsel submitted that after ex-parte order was passed by this Court, an application was filed before the Appellate Court and the Appellate Court issued notices to the present petitioners. 6. Learned counsel submitted that after ex-parte order was passed by this Court, an application was filed before the Appellate Court and the Appellate Court issued notices to the present petitioners. Learned counsel submitted that due to passing of order in S.B. Civil Writ Petition No. 10399/2020, the entire appeal is being re-heard and the order of Mandatory Injunction dated 29.11.2019, which was already set aside, is again being considered on merits by Appellate Court. 7. Learned counsel further submitted that the Appellate Court while passing the order dated 24.07.2020 had taken into account the fact of filing initial Temporary Injunction Application by the plaintiffs dated 26.07.2019 and has also taken into consideration the subsequent application filed on 09.08.2019, asking for Mandatory Injunction. 8. Learned counsel submitted that this Court was not properly informed that both the applications filed by the plaintiffs for Temporary Injunction and Mandatory Injunction was part of the discussion in the order of the Appellate Court and as such this Court on wrong assumption permitted the plaintiffs-respondents to move an application before the Appellate Court. 9. This Court had directed learned counsel for the petitioners to serve copy of the writ petition in the office of Mr. Sudesh Bansal, who had appeared in S.B. Civil Writ Petition No. 10399/2020. Mr. Mohd. Adil, appeared on behalf of the respondents, submitted that no instructions have been received from the respondents but, however, submitted that if this Court is inclined to interfere in the matter, the proper course is to issue notices to the parties concerned. 10. Learned counsel submitted that the order passed by this Court in S.B. Civil Writ Petition No. 10399/2020 was rightly passed and does not have any bearing in the present controversy. 11. I have heard the submissions made by learned counsel for the parties and perused the material available on record. 12. This Court finds that the Appellate Court while passing the order dated 24.07.2020 has considered the fact of filing initial Temporary Injunction Application as well as the Mandatory Injunction Application. This Court further finds that the Appellate Court while deciding the appeal filed by the petitioners, has come to the conclusion that right of way, which is available to both the parties is the only convenient way and as such the appellants were restrained to create any hindrance in use of right of way for a period of six months. 13. 13. This Court further finds that the order of removal of any obstruction in the right of way, which was to be demolished by the petitioners, has further been not upheld and only right of way to the parties has been maintained for a period of six months. This Court further finds that the direction to decide regular Temporary Injunction Application has also been given and the same was required to be decided in a time bound manner. 14. This Court does not accept the submissions made by learned counsel for the petitioners that while passing the order dated 24.07.2020, the Court below could not have directed the parties to have right of way over private land, which is claimed to be exclusively belonging to the petitioners. 15. This Court finds that if the Appellate Court has come to the conclusion that the Temporary Injunction Application was also required to be decided within a period of six months and only for such period, the right of way was made available, no illegality can be found in such an order. 16. The submission of learned counsel for the petitioners that due to passing of the order in S.B. Civil Writ Petition No. 10399/2020, the Appellate Court has issued notices and entire order is revisited, suffice it to observe by this Court that this Court had only granted liberty to those petitioners to move an application and this Court had upheld the order passed by the Appellate Court dated 24.07.2020, as the petitioners in the Writ Petition No. 10399/2020, had sought permission to withdraw the writ petition. 17. This Court finds that once the order dated 24.07.2020 has not been interfered with by this Court, there does not arise any occasion now to change or set aside the order dated 24.07.2020. 18. Accordingly, the present writ petition stands disposed of in terms of above observations.