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2022 DIGILAW 2375 (RAJ)

Municipal Council v. Sarika Chaplot

2022-09-06

FARJAND ALI

body2022
ORDER 1. Heard learned counsel for the parties and perused the material available on record. 2. By way of filing this instant civil misc. appeal under Order 43 Rule 1 (r) of CPC, the appellant has challenged the order dated 10.06.2022 passed by learned Distt. Judge, Bhilwara in Civil Misc. Case No.101/2022 whereby, learned judge passed an ad-interim order in an application for temporary injunction in favour of respondent-plaintiff. 3. Bereft of elaborate details, succinctly stated, the facts of the case are that the respondent-plaintiff filed a civil suit before the court below for declaration, injunction and some ancillary relief. 4. As per the averments made in the plaint, the respondentplaintiff is having possession over plot No. 74 situated in village Aatun, which he purchased from one Mayank vide registered sale deed dated 02.06.2009. It is specifically pleaded that the plaintiff has made several request to the authority concerned for regularization of the plot but the application for regularization is pending before the Municipal Authority. An apprehension has been shown that the respondent authority may make sale, auction or allotment of the suit property, therefore, it is prayed that the authority may be restrained from alienating the property-in-question in any manner either by way of sale, auction or allotment etc. Along with the suit, an application under Order 39 Rules 1 & 2 of CPC has also been filed seeking temporary injunction till disposal of the suit. 5. The matter was first posted for consideration before the learned Distt. Judge on 08.06.2022. On the very same day, the learned Judge directed to issue notice to respondent (the appellant herein) and the matter came to be posted on 09.06.2022. On 09.06.2022, counsel for the respondents (the appellant herein) put in their appearance and sought a short adjournment for filing reply and to apprise the Court regarding the factual & legal position of the property-in-question but instead thereof, arguments on interim prayer were heard on the same day and the matter was directed to be listed on the next date i.e. 10.06.2022. Thereafter, vide order dated 10.06.2022, the appellant/defendants have been restrained from raising any construction over Khasra Nos.804, 806 & 807, the new numbers of which, after land settlement, are Nos.581 to 584. The appellant has also been restrained from transferring, selling or making auction etc. of the property-in-question. Thereafter, vide order dated 10.06.2022, the appellant/defendants have been restrained from raising any construction over Khasra Nos.804, 806 & 807, the new numbers of which, after land settlement, are Nos.581 to 584. The appellant has also been restrained from transferring, selling or making auction etc. of the property-in-question. The learned trial Judge, at the same time, permitted the plaintiff (the respondent herein) to commence & continue construction over the land in question and the matter has been posted for reply and final arguments on application for temporary injunction. 6. After anxious consideration and perusal of the material placed on record, this Court is of the firm view that the learned trial Judge has not exercised its jurisdiction in accordance with the settled principles of law in passing the order dated 10.06.2022. The bone contention of the plaintiff has been only in respect of plot No.74 as pleaded in the suit, for which, he claims to be the owner and the relief for declaration of ownership over the plot No.74 and regularization of the same has also been sought in the plaint. Thus, the suit is mainly confined to the ownership of the plot No.74 but the learned trial judge has restrained the appellants for doing anything on Khasra Nos.581 to 584 alongwith plot No.74. The plaintiff has not produced any document showing his title over the property which is an open land for which plans for allotment have been made as per the municipal laws. 7. The application for temporary injunction is yet to be decided by the learned trial court for which firstly, existence of a prima facie case needs to be established; secondly, whether balance of convenience is in favour of party seeking temporary injunction has to be decided and thirdly, whether irreparable loss has been caused to the plaintiff is to be found out. Both the parties would be required to be heard on all the above three points. In the firm view of this Court, until the rival submissions and the material placed before the Court passing such order have not been considered and the aforementioned three points have not been dealt with, then interim measure permitting the plaintiffrespondents to raise construction over the suit property, without adjudication of its propriety right, title interest and possession, can be said to be bad in the eyes of law, thus, the same is not sustainable. 8. 8. Considering the peculiar facts and circumstances of the case, this Court deemed it appropriate to direct the parties to maintain status quo as it exists today, with regard to four corners of plot No.74 which is situated at village Aatun, Distt. Bhilwara. However, it is made clear that the observations made hereinabove are limited to the extent of deciding the appeal. The learned trial judge shall not be influenced by any of the observations made hereinabove and the application for temporary injunction shall be decided in accordance with law and the parameters/guidelines issued by Hon’ble the Supreme Court through various judicial pronouncements. 9. Accordingly, the appeal is allowed and the order dated 10.06.2022 passed by learned Distt. Judge, Bhilwara is hereby quashed and set aside.