At, High Court of Rajasthan Jodhpur Bench
By, THE HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA
For the Petitioner: Ranjeet Joshi, Kapil Bissa, Advocates. For the Respondents: Khet Singh, Cavator.
1.Counsel for the respondent has put in appearance.
2. Heard the matter at this stage itself.
3. Having heard the counsel for both the sides and after having looked into the order dated 13.01.2016 passed by the Additional Civil Judge No.2, Jodhpur Metro in Civil Misc. Case No.126/2014 and appellate order dated 20.01.2016 passed by the Court of District & Sessions Judge, Jodhpur Metro in Civil Appeal No.06/2016, the arguments were advanced.
4. The counsel for the petitioner states that the learned trial cou
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t had rejected the application under Order 39 Rules 1 & 2 CPC while passing detailed order dated 20.01.2016, the appellate Court has reversed the same vide its order dated 21.02.2016 and has granted final relief while deciding the application under Order 39 Rules 1 & 2 CPC. It has been further submitted that the plaintiff had filed simple suit for permanent injunction and had stated in his plaint that he was having agricultural land and RIICO had prepared a map wherein there was a road of 18 meters in front of the RIICO land. He further states that the plaintiff has asserted that the petitioner-respondent is trying to encroach upon 18 meters land by constructing his boundary wall for the purpose of factory. It is submitted that the land was allotted to him by RIICO wherein it is stated that he has left 6 meters of road while constructing the boundary wall. The trial court after examining this aspect, rejected the application of the non-petitioner-plaintiff. There was no occasion for the appellate court to have given a reversal finding as the appellate court has limited jurisdiction to interfere in the order passed in Order 39 Rules 1 & 2 CPC. It has been further argued that there is an alternative way available for the plaintiff and in this regard reliance has been placed on the judgment of Deva Ram and Anr. v. Narsingh Mandir Trust and Ors. reported in 2011 (1) DNJ (Raj.) 25.Para 5 of the said judgment is as under:-A bare perusal of the impugned order clearly reveals that according to the Commissioner's report, there is, indeed, an alternative way for the petitioners to reach their farm land. Since they have an alternative route to reach their land, the learned Judge was justified in concluding that the petitioners have not been able to establish a prima facie case in their favour. Once the petitioners have alternative route, they cannot complain that the action proposed by the respondent would prejudice their cause. Moreover, the learned Judge is certainly justified in concluding that, although the petitioners claim that they have been using a particular route, since time immemorial they have not submitted the revenue record which shows the existence of that particular route; moreover, it is a matter of evidence during the course of trial. Thus, the said fact cannot be commented upon at the initial stage.5. Per contra, the counsel for the respondent-non-petitioner states that as the RIICO has issued a map showing 18 meters of road in front of plaintiffs land, the petitioner-respondent has clearly admitted to encroach the road and the appellate court in its jurisdiction has rightly reversed the order of the trial court and has restrained the defendants-petitioner to leave 18 meters road and make no construction6. Having heard the learned counsels, a specific query was raised to the counsel for the respondent-non-petitioners regarding the prayer made by him in the plaint. Where after the counsel has taken this Court to the prayer clause wherein the plaintiff has prayed that during the pendency of the suit, the defendants be restrained from encroaching on 18 meters road and construct only after leaving said area.7. A bare perusal of the impugned order passed by the trial court would show that the relief given by the appellate Court is identical to the prayer made in the main suit and final relief has been granted by way of interim order. Obviously, such course should not have been adopted by the appellate Court while reversing the findings of the trial court.8. This Court finds merit in the submission made by the counsel for the petitioner that while reversing the findings under Order 39 Rules 1 & 2 CPC, the appellate Court has limited jurisdiction and should not have gone beyond the prayers made in the temporary injunction and granted final relief at the interim stage.9. So far as submission relating to alternate way is concerned, this Court is unable to accept the contention of the learned counsel for the petitioner as at this stage no finding can be arrived at whether there is alternate way available with the plaintiff or not.10. However, in view of the fact that the final relief has been granted by way of passing an interim order in a suit for permanent injunction, which could not have been done in the order dated 20.01.2016, the same has to be set aside.11. Accordingly, the writ petition is allowed. The order dated 20.01.2016 passed by learned District & Sessions Judge, Jodhpur Metro in Civil Appeal No.06/2016 is quashed and set aside with further directions that the trial court may decide the suit at the earliest as expeditiously as possible after both the parties put their evidence. It goes without saying that if any finding is arrived in favour of the petitioner, consequence thereof shall follow.Writ Petition allowed.