Uttarakhand High Court
Rajeev Kalia & Anr vs Smt. Santosh Jain on 29 May, 2013
Author: B.S.Verma
Bench: B.S.Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.884 of 2013 (M/S)
Rajeev Kalia & Anr.
... Petitioners
Vs.
Smt. Santosh Jain
...Respondent
Mr. Sharad Sharma, Senior Advocate alongwith Mr. Ramji Srivastava, Advocate for
the petitioners
Hon'ble B.S.Verma, J. (Oral)
By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned orders dated 12.2.2013 and 1.10.2012 passed by appellate court, annexed as Annexure Nos.10 and 8 to the writ petition.
According to the petitioners, respondent/plaintiff filed a suit for permanent injunction against the petitioners/defendants. An application for temporary injunction was also moved by the plaintiff in the suit praying that the petitioners/defendants be restrained from raising any construction de hors the sanctioned plan. Vide order dated 5.9.2012, learned trial court rejected the interim injunction application of the plaintiff. Against the order of the trial court, the plaintiff/respondents filed a misc. appeal before the District Judge, which was subsequently transferred to Additional District Judge, for hearing and disposal. During the pendency of appeal, on the interim relief application of the plaintiff/respondent, learned ADJ passed an interim order to the effect that the petitioners would raise the construction as per the sanctioned plan on the adjoining portion of the respondent/plaintiff. Thereafter, again on 19.9.2012, an application was moved by the respondent/plaintiff, on 2 which, the appellate court directed the police authorities to visit the spot and verify the fact as to whether the petitioners are raising the construction as per the sanctioned plan on the adjoining portion i.e. set back area in dispute. In compliance of the court's order, the police submitted its report. On the basis of police report, vide order dated 1.10.2012, learned Addl. District Judge, passed an order directing the parties to maintain status quo and also directed the Development Authority to make survey on the spot and submit its report.
By perusal of the order of the appellate court dated 1.10.2012, prima facie it reveals that the dispute is only regarding the setback area but the appellate court has restrained the petitioners/defendants by raising construction on entire portion.
In the above facts and circumstances, impugned order dated 1.10.2012 is modified to the extent that the status quo shall be maintained by the parties in respect of setback area only, which as per the petitioner is 3 mtrs. from the adjoining wall of the plaintiff. It is clarified that the appellate court may decide the appeal on merit.
Issue notice to the respondent returnable within four weeks, who may also file counter affidavit within the aforesaid period.
Thereafter, two weeks' time is allowed to the petitioners to file rejoinder affidavit.
List in the week commencing 15.7.2013, for admission/orders.
Stay Application No.3838 of 2013 is disposed of.
(B.S.Verma,J.) Rajni 29.05.2013