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Radhey Shyam & Others v/s Ashok Kumar & Others

    Civil Writ Petition No. 13664 of 2010, Civil Misc. Stay Appl. No. 6438 of 2010

    Decided On, 08 December 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE MAHESH BHAGWATI

    For the Petitioners:Anoop Dhand, Advocate. For the Respondents: Ajay Gupta, Advocate.



Judgment Text

Mahesh Bhagwati, J.

1. By way of the instant writ petition, the petitioner has beseeched to quash and set aside the order dated 24th May, 2010 whereby the learned Civil Judge (Jr.Div.) No. 2, Sikar dismissed the application for temporary injunction and the order dated 21st August, 2010 whereby the learned Additional District Judge No. 1, Sikar dismissed the appeal preferred against the order dated 24th May, 2010, in its appellate jurisdiction.

2. Having considered the submissions made at the bar and carefully perused the relevant material on record including the impugned orders, it is noticed that the petitioners-plaintiffs filed a suit for permanent injunction togeth

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er with an application of Temporary injunction under Order 39 Rule 1 & 2 CPC, against the respondents-defendants, in the Court of Civil Judge (Jr. Div.) Sikar. It is alleged that the property in dispute are the shops which belonged to Rao Raja Kalyan Singh, Sikar, who sold them to one Mohini Devi by registered sale deed in the year 1966 and thereafter the said Mohini Devi sold the said shops to the petitioners and the defendants Nos. 1 & 2, in the year 2007. The grievance of the petitioners-plaintiffs is that the respondents No. 1 & 2 were endeavouring to demolish the wall situated towards the southern side of the petitioners' shops. The petitioners have come out with a case that there was 'Burj' and Fatehpur Gate also which were of historical importance and the respondents-defendants had no right to destroy the beautification of the town. The petitioners-plaintiff implored the Court to restrain the defendants-respondents from demolishing the said wall situated towards the southern side of the shops of the petitioners.

3. Learned counsel for the petitioners canvassed that the learned trial Court as also the learned appellate Court seriously erred in holding that all the petitioners had three different shops as such their joint suit was not maintainable.

4. Learned counsel further canvased that the finding arrived at by the learned trial Court with regard to the wall situated towards the southern side of the shops of the petitioners that it was not a part of the property purchased by the petitioners, is totally erroneous and contrary to material. The learned trial Court as also the learned appellate Court sans assigning any cogent reason dismissed the application for temporary injunction and appeal, and these orders deserve to be set aside in the interest of justice.

5. E-converso, the learned counsel for the respondents defended the impugned orders and stated the same to be just and proper which did not warrant any intervention.

6. Learned counsel for the respondents further contended that the said wall situated towards the southern side of the shops of the petitioners was not the property of the petitioners nor was a part of the property purchased by him from Mohini Devi, hence, the petitioners had no right to seek an injunction against the respondents from the concerned Court and thus, the writ petition deserves to be dismissed.

7. After reflecting over the submissions made by the learned counsel for the parties and carefully scanned the contents of plaint and the application for temporary injunction as also the reply furnished by the respondents, it is noticed that the Municipal Corporation, Sikar is found to have filed the reply which stated that the petitioners themselves were the tress-passers and they had encroached upon the land of the Municipal Corporation, about which the suit was already pending in the Court. Had the respondents Nos. 1 & 2 been demolishing the 'Burj' and 'Fatehpur Gate', the Municipal Corporation, Sikar would have taken appropriate steps in this regard as it was the bounden duty of the Municipal Corporation, Sikar to maintain the Burj and Fatehpur Gate which are of historical importance, but that was not the case. What has emerged from the material on record is that the said wall which is alleged to have been demolished by the respondent Nos. 1 & 2 is not found to have been a part of the property purchased by him from Mohini Devi who also, purchased it earlier from Rao Raja Kalyan Singh. Learned trial Court as also the learned Appellate Court are found to have dealt with all these aspects and discussed them adlongum. Both the courts did not find prima facie case in favour of the petitioners-plaintiffs nor they found that the balance of convenience and irreparable loss were in favour of the petitioners. They are found to have rightly dismissed the temporary injunction application as also the appeal preferred, against the order of the learned trial Court.

8. At that stage, it is relevant to record that the Hon'ble Apex Court has consistently held in plethora of cases that the High Court should invoke extra ordinary jurisdiction only when the impugned order is found to be perverse, contrary to material or it results in manifesting injustice. The Hon'ble Apex Court has also cautioned that the High Court should exercise the extra ordinary jurisdiction under Article 227 of the Constitution sparingly and not in routine and the Court should not upset the pure finding of facts.

9. This petition has been filed under Article 227 of the Constitution of India. In the case of Shalini Shyam Shetty and Another v. Rajendra Shankar Patil reported in, (2010) 8 Supreme Court Cases 329 : 2010 (2) WLC (SC) Civil 457 their Lordships of Hon'ble Apex Court have held that the power under Article 227 of the Constitution of India is a reserved and exceptional power for judicial intervention to be exercised not merely for the grant of relief in any even of the case, but only to be directed for the promotion of public confidence in the administration of justice. It has been held that the power is unfettered, but subject to high degree of judicial discipline and interference is to be kept at the minimum.

10. Adverting to the facts of the instant case, it is found that the learned trial Court as also the learned appellate Court are found to have committed no error in holding that the wall situated in southern part of the shops of the petitioners was not a part of the property which was purchased by them from Mohini Devi.

11. Learned counsel for the petitioners has utterly failed to convince me to take a contrary view to that of the view taken by the learned trial Court as also by the learned Appellate Court. There is no ground to interfere with the finding arrived at by the learned trial Court as also the learned Appellate Court, which is based purely on facts.

12. For the reasons stated above, the writ petition fails and the same being bereft of any merit stands dismissed.

13. Consequent upon the dismissal of the writ petition, the stay application does not survive and the same also stands dismissed.

Writ petition dismissed along-with stay application.
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