Allowed

Shrimati Dev Kaur Alias Gurudev Kaur Widow of Late Shri Sohan Singh v. Bashya Singh Alias Badshah Singh S/O Late Shri Sohan Singh

Rajasthan HC5 Dec 2024/5370/2024

Case brief

AI extract

What is this about?

A plaintiff challenged a trial court order rejecting her application under Order 39 Rule 7 CPC seeking appointment of a commissioner to report on defendants' alleged illegal construction despite an interim injunction. The High Court held the trial court should have appointed a commissioner, set aside the rejection and directed appointment of a commissioner.

What did the court decide?

Trial court's order dated 16.02.2024 set aside; trial court directed to appoint commissioner to procure factual report on construction.

Shrimati Dev Kaur Alias Gurudev Kaur Widow of Late Shri… — Property and Title | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 5370/2024

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Shrimati Dev Kaur Alias Gurudev Kaur Widow Of Late Shri Sohan Singh, Aged About 83 Years, Resident Of Village Rundh Pachgaon Tehsil And District Dholpur (Raj).

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---Plaintiff-Petitioner

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Versus

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Bashya Singh Alias Badshah Singh S/o Late Shri Sohan Singh, Aged About 61 Years, R/o Sohan City Jhor Wali Mata Road, Dholpur (Raj).

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Jagdev Singh Sainger Alas Lala S/o Shri Harnam Singh, R/o Radhabihari Road Dholpur, Tehsil And District Dholpur(Raj).

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Anita Sharma W/o Shri Sanjay Sharma, R/o Shaktinagar Colony Ghantaghar Road Dholpur (Raj).

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Netram Jain S/o Late Shri Nemichand Jain, R/o Tabela Road, Dholpur, Tehsil And District Dholpur(Raj).

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Rohil Sareen S/o Shri Rajeev Sareen, S.p.g. Sareen Complex, Gulab Bagh, Dholpur(Raj).

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Rajeev Sareen S/o Shri Shrigopal Sareen, R/o S.p.g. Sareen Complex Gulab Bagh, Dholpur(Raj).

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Geeta Shrivastva W/o Shri Neelam Kumar, R/o Gurudwara Road Kothi Dholpur(Raj).

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Girishchand Shrivastva S/o Shri Jamunaprasad Shrivastva, R/o House No.2/188 Housing Board Colony Dholpur(Raj).

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Rajesh Sharma S/o Shri Pannalal, R/o 325/ka City Jubni Hall Ke Pass Dholpur(Raj).

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Premwati Sharma W/o Shri Chivnarayan Sharma, R.a.c. Ke Samne Gaushala, Dholpur(Raj).

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Khshagra Sharma S/o Vijay Sharma, R/o Gurudwara Road, Dholpur (Raj), Vijay Nursing Home Sitaram Colony Jubli Hall Ke Pass Dholpur Tehsil And District Dholpur (Raj).

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Sanjay Sharma S/o Shyambabu Sharma, R/o Pachouri Pada Kachchi Kui Purana Shaher Dholpur Presently Shakti Nagar Ghantaghar Road Dholpur Tehsil And District

[CW-5370/2024]

(2 of 4)

Dholpur(Raj).

Bharti Agarwal W/o Avadh Kishore Agarwal, R/o Jawahar Nagar Colony Station Road Dholpur (Raj).

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Avadh Kishore Agarwal S/o Sureshchand Agarwal, R/o Agarwal Vila Jawahar Nagar Colony, Station Road Dholpur(Raj).

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Sarita Upadhya W/o Avadhesh Upadhyay, R/o Uma Nagar Shiv Mandir Ke Piche Dholpur(Raj).

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Padma Tiwari W/o Ashok Tiwari, R/o Mata Wali Gali Basedi District Dholpur(Raj).

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Arundhati Sharma W/o Mukesh Sharma, R/o Dhulkot, Dholpur Tehsil And District Dholpur (Raj).

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Vishambhardayal Parashar S/o Radheshyam Parashar, R/o Aangai Tehsil Sarmathura District Dholpur (Raj).

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Hariom Parashar S/o Radheshyam Parashar, R/o Aangai Tehsil Sarmathura, District Dholpur (Raj).

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Smt. Kamlesh Kumari Shukla W/o Anokhelal Shukla, R/o Bajrang Colony, Ab Road Jirouli, Dholpur(Raj).

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Archana Sharma D/o Ramraj Sharma, R/o Jhinna Pada Sarmathura Tehsil Sarmathura District Dholpur (Raj).

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Nagar Parishad, Dholpur, Through Commissioner Nagar Parishad Dholpur.

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----Respondents

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For Petitioner(s) : Ms. Meenal Bhargava, Adv. For Respondent(s) :

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HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

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Order

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05/12/2024

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The instant petition has been filed by the plaintiff-petitioner (for short ‘the plaintiff’) against the order dated 16.02.2024 passed by the Additional District Judge, Dholpur (for short ‘the trial court’) in Civil Suit No.35/2022 in Civil Miscellaneous

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[CW-5370/2024]

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(3 of 4)

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Application No.08/2024 titled as “Dev Kaur @ Gurudev Kaur Vs. Bashya Singh @ Badshah Singh”, whereby the trial court rejected the application filed by the plaintiff under Order 39 Rule 7 CPC.

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Learned counsel for the plaintiff submits that the plaintiff filed a suit as well as temporary injunction application against the defendants-respondents (for short ‘the defendants’) in which the interim order was passed in favour of the plaintiff. The plaintiff filed an application under Order 39 Rule 2-A CPC on account of breaching the order passed by the trial court. Since the defendants were continuously breaching the order, the plaintiff filed an application under Order 39 Rule 7 CPC for bringing the factual report on record with regard to illegal construction being done by the defendants but the trial court vide order dated 16.02.2024 wrongly dismissed the said application. Learned counsel for the plaintiff also submits that the trial court has committed an error in dismissing the application filed by the plaintiff because without commissioner report, no factual report can be placed on record. So, in the interest of justice, the order dated 16.02.2024 passed by the trial court be set-aside and the trial court be directed to appoint commissioner for bringing the factual report on record.

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I have considered the arguments advanced by learned counsel for the plaintiff and perused the impugned order dated 16.02.2024.

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It is an admitted position the interim order was passed in favour of the plaintiff and contention of the plaintiff is that the defendants were continuously the interim order passed by the trial court. So, in my considered opinion, the trial court should have

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[CW-5370/2024]

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(4 of 4)

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procured the factual report by appointing the commissioner. The trial court has committed an error in dismissed the application filed by the plaintiff under Order 39 Rule 7 CPC. So, the petition filed by the plaintiff deserves to be allowed.

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The petition filed by the petitioner is allowed and the order dated 16.02.2024 passed by the trial court is set-aside. The trial court is directed to appoint commissioner for procuring the factual report regarding so-called construction on record.

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Pending application(s), if any, also stand(s) disposed of.

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(NARENDRA SINGH DHADDHA),J

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Gourav/15

Shrimati Dev Kaur Alias Gurudev Kaur Widow of Late Shri Sohan Singh v. Bashya Singh Alias Badshah Singh S/O Late Shri Sohan Singh

Case brief

What is this about?

What did the court decide?

Shrimati Dev Kaur Alias Gurudev Kaur Widow of Late Shri Sohan Singh v. Bashya Singh Alias Badshah Singh S/O Late Shri Sohan Singh

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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