Writ petition challenging Trial Court's refusal to grant ad-interim injunction in a dispute over a gravel road was dismissed; court directed Trial Court to decide the injunction application within two months.
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S.B. CIVIL WRIT PETITION NO. 1361/2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR.
ORDER
S.B. CIVIL WRIT PETITION NO. 1361/2015 WITH
S.B. CIVIL MISC. STAY APPLICATION NO. 1219/2015
NAZMA BANO VS. JAT VIKAS SAMITI & OTHERS.
DATE OF ORDER : 02.03.2015
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
Mr. Vijay Choudhary on behalf of Mr. N.C. Choudhary, for the petitioner.
BY THE COURT:
This writ petitioner has been filed by the petitionerplaintiff challenging order dated 14.01.2015 passed by Civil Judge, Todaraisingh, Tonk(for short 'the Trial Court') whereby the Trial Court has declined to pass ad-interim injunction order on temporary injunction application filed by the petitioner along with the suit.
The plaintiff-petitioner filed a suit against the defendants for mandatory injunction along with temporary injunction application on 06.01.2015 stating therein that on 05.01.2015, the respondentdefendants stated that they will start construction of boundary wall in the land of common way. The petitioner tried her best to inform the defendants that for last many decades there is gravel road
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S.B. CIVIL WRIT PETITION NO. 1361/2015
through which her house is connected with the main road. The defendants through the contractor have started construction and are trying to block the way. The petitioner-plaintiff is owner of Khasra No. 563 and has been using the gravel road, which is on the southern side, for last 100 years. During the proceedings, two commissioner reports were received by the Trial Court. In sipte of the fact disclosed in one of the Commissioner reports that there is a gravel road in front of the plaintiff's house which connects it with the main road, the Trial Court vide order dated 14.01.2015 declined to pass ad-interim injunction order on the temporary injunction application filed by the petitioner.
Learned counsel for the petitioner has submitted that the petitioner has a customary right of easement and a right of way so as to enable her to use her residence and the defendants have constructed boundary wall on much larger area than it has been allotted. The defendants are adamant to close the way thereby causing irreparable loss to the petitioner. The Trial Court is required to decide three tests, i.e., prima facie case, balance of convenience and irreparable loss while passing order in temporary injunction application, but the Trial Court without considering the basic elements and the fact that the plaintiff is in peaceful possession of the land and using the gravel road for last 100 years, has wrongly declined to pass ad-interim injunction order.
Having heard learned counsel for the petitioner and perused the material on record, this Court does not deem it appropriate to directly entertain this writ petition. However, in the facts and circumstances of the case, the Trial Court is directed to
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S.B. CIVIL WRIT PETITION NO. 1361/2015
decide temporary injunction application filed by the plaintiffpetitioner along with her suit within two months from the date of production of copy of this order before it.
With the aforesaid direction writ petition is disposed of. Stay application also stands disposed of.
(MOHAMMAD RAFIQ),J.
Manoj, S.NO.74.
“All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.” MANOJ NARWANI Personal Assistant.
NAZMA BANO
JAT VIKAS SAMITI & OTHERS
MOHAMMAD RAFIQ
As recorded by the court registry
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