Petitioner challenged injunction orders rejecting his application to produce documents and seeking permission to build a pillar. Court found status quo was appropriate as a final decree was pending and construction would create complications.
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SBCWP No.4033/06.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
O R D E R
S.B. CIVIL WRIT PETITION NO.4033/2006.
Subhash Chand Vs.
Shiv Shankar and ors.
Date of order : 01/02/2008.
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
Shri Rajesh Sharma for the petitioner. ***
BY THE COURT :-
The petitioner who is defendant before the trialcourt has filed this writ petition against the order of injunction dated 25/4/2005 passed by the trial court and the order dated 14/2/2006 passed by the learned appellate court of Additional District Judge Shahpura, District Jaipur whereby his application filed under Order 41 Rule 27 CPC was rejected.
Learned counsel for the petitioner has argued that the learned appellate court has wrongly rejected the application filed under Order 41 Rule 27 CPC whereby he has prayed to bring certain documents on record. The appellate court rejected the application on wrong assumption that petitioner did not make such application before the trial court. The learned appellate court therefore erred in law in not permitting copies of map dated
SBCWP No.4033/06.
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29/10/2005 on record and copies of the report of Commissioner in regard to the disputed property produced in another suit. Report of the Commissioner was illegally rejected on the ground that advocate who was appointed as Commissioner was representing the defendant-petitioner in other suit whereas the fact was that he was only junior advocate to the counsel for petitioner and did not himself file Vakalatnama on his behalf. Learned counsel argued that both the courts below have erred in law in illegally holding that prima-facie case exists in favour of the plaintiff. It was submitted that because of the injunction order, the petitioner has not been able to raise pillar on the 5 feet wide street adjoning Dharamshala in question. Counsel for petitioner therefore prayed that he may be permitted to raise pillar so that he can raise further construction and it should be allowed to be done at his own cost and risk if eventually petitioner lost in the civil suit, the same will be demolished.
Having heard learned counsel for the petitioner and perused the impugned-order, I find that the learned trial court found prima-facie case against the defendant-petitioner and in favour of the plaintiff-respondent. While the case of the defendant-petitioner that 5 feet land was carved out from his ancestral property was not accepted. The trial court held that for last 20 years the
SBCWP No.4033/06.
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petitioner is not having possession on such land and on the basis of evidence that has been brought on record, title of the defendant-petitioner also could not be proved over such land. This question could be examined only after the evidence has been led by the parties. The aforesaid findings were upheld by the learned appellate court.
Having regard to the facts of the case, I find that the courts below have not committed any error of law in passing the order of injunction requiring the parties to maintain status-quo. If petitioner is allowed to raise pillar and further construction thereupon, it will only create complications and question of equity would arise when the suit would come at the stage of passing the final decree.
In my view, neither of the impugned-orders suffer from any illegality whereby both the courts below directed parties to maintain status-quo.
I do not find any merit in this petition. Same is accordingly dismissed.
(MOHAMMAD RAFIQ), J.
anil
3 issues framed by the court
Whether the appellate court erred in law by rejecting the petitioner's application under Order 41 Rule 27 CPC to produce documents on record.
Whether the High Court should set aside the status quo order requiring parties to maintain the position pending final decree.
Whether the petitioner can be permitted to construct a pillar on the disputed land while the suit is pending.
2 provisions across 1 enactments
Subhash Chand
Shiv Shankar
MOHAMMAD RAFIQ
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
