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2022 DIGILAW 2829 (RAJ)

Unita Saini v. Avatar Kanwar

2022-11-28

NARENDRA SINGH DHADDHA

body2022
JUDGMENT 1. This Civil Writ Petition filed by the petitioner under Article 227 of the Constitution of India against the impugned order dated 06.04.2021 passed Additional District Judge No.3, Jaipur Metropolitan Ist in Civil Misc. Appeal No.16/2020 reversing the order dated 31.10.2020 passed by Additional Civil Judge & Metropolitan Magistrate No.9, Jaipur Metropolitan Ist in temporary injunction application by which learned court below allowed the application for temporary injunction. 2. Learned counsel for the petitioner submits that petitioner had filed a suit for permanent injunction against the respondent Nos.1 & 2 and also filed the application for temporary injunction. Learned counsel for the petitioner also submits that trial court vide order dated 31.10.2020 allowed the application for temporary injunction filed by the petitioner. After that, respondent No.1 had filed an appeal but appellate court vide order dated 06.04.2021 set aside the order of the trial court. Learned counsel for the petitioner also submits that it is an admitted position that respondent No.1 was doing construction without attaining the permission from respondent No.2. Learned counsel for the petitioner also submits that respondent No.2 had also issued the notice for illegal construction to respondent No.1. Learned counsel for the petitioner also submits that order of learned appellate court is perverse and learned appellate court reverse the order of the trial court without appreciating the factual aspect of the case. Learned counsel for the petitioner also submits that learned appellate court should not interfere in discretion exercise by the learned appellate court unless such discretion was found to be palpably incorrect or untenable. Learned counsel for the petitioner also submits that learned appellate court also fails to consider the protection of easement rights to the petitioner because respondent No.1 was doing construction without permission and in violation of local laws. Learned counsel for the petitioner also submits that learned appellate court had not given any reason for disbelieving the notice issued by respondent No.2 to respondent No.1. Learned appellate court merely disbelieved notice on the ground that illegal construction was less than the measurement provided in the sale deed. Learned counsel for the petitioner also submits that if temporary injunction was not allowed in favour of the petitioner then it would create multiplicity of the proceeding and complicity. So, order of learned appellate court be set aside and order of the trial court be restored. 3. Learned counsel for the petitioner also submits that if temporary injunction was not allowed in favour of the petitioner then it would create multiplicity of the proceeding and complicity. So, order of learned appellate court be set aside and order of the trial court be restored. 3. Learned counsel for the petitioner has placed reliance upon the following judgments : (1) Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass reported in (2004) 8 SCC 488 ; (2) Mohd. Mehtab Khan & Ors. v. Khushnuma Ibrahim Khan & Ors. reported in (2013) 9 SCC 221 and (3) Wander Ltd. & Anr. v. Antox India P. Ltd. reported in 1990 Supp. SCC 727. 4. Learned counsel for the respondent No.1 has opposed the arguments advanced by learned counsel for the petitioner and submitted that learned appellate court rightly came to the conclusion that no prima facie case is made out in favour of the petitioner and also submitted that respondent No.1 was doing construction as per the norms of local authorities and also submitted that as per sale deed, respondent No.1 was entitled to construct the house. So, order of the learned appellate court does not suffer from illegality or infirmity. So, petition be dismissed. 5. Learned counsel for the respondent No.2 submits that it is an admitted position that respondent No.1 was doing construction without permission and without following norms of the local authorities. So, petition be allowed. 6. I have considered the arguments advanced by learned counsel for the petitioner as well as learned counsel for the respondents. 7. It is an admitted position that trial court had granted temporary injunction in favour of the petitioner but learned appellate court had set aside the order of temporary injunction granted by the trial court. Learned appellate court wrongly came to the conclusion that order of the trial court was based on notice of the JDA. Learned appellate court also wrongfully inferred that illegal construction is less than the measurement provided in the sale deed. It is also admitted position that respondent No.1 had not acquired any permission from respondent No.2 for construction. During the course of arguments, respondent No.2 also submitted that due to stay of appellate court, they are not in position to do as per law. It is also admitted position that respondent No.1 had not acquired any permission from respondent No.2 for construction. During the course of arguments, respondent No.2 also submitted that due to stay of appellate court, they are not in position to do as per law. So, in my considered opinion, learned appellate court wrongly came to the conclusion that respondent No.1 had right to construct as per sale deed without following local laws. So, present petition deserves to be allowed. 8. Therefore, the Civil Writ Petition is allowed. The order of learned appellate court dated 06.04.2021 is set aside and the order of the trial court dated 31.10.2020 is restored. 9. All the pending applications also stand disposed of.