Rajasthan High Court - Jaipur
Satyanarain Singh And Anr. vs Vimladevi And Ors. on 21 August, 2002
Equivalent citations: 2003(3)WLN465
JUDGMENT Arun Madan, J.
1. This revision petition arises out of an order dated 19.9.2000 of the Addl. Civil Judge (JD) No. 4, Jaipur City Jaipur in Civil Misc. Appln. No. 298/2000 (Old No. 166/98) in civil suit No. 227/2000 whereby application under Section 151, CPC filed by defendants (petitioners) was rejected.
2. Facts relevant for the present revision petition are summerised thus, Shantidevi alongwith her son Narendra Kumar instituted a civil suit No. 8/96 (renumbered as 494/96) on 2.1.1996 before the Addl. Civil Judge No. 4, Jaipur City, seeking perpetual injunction besides a relief that Vimla Devi and Others defendants including the present petitioners be restrained from putting any channel gate or raising any wall or creating any hinderance in free use of passage and Baramada (Ikdara) shown as ABC in a map (Annex.1) annexed to the plaint. Alongwith that suit, temporary injunction application registered as Misc. Appln. No. 262/96 was also filed, to which reply was filed by the present petitioners on 27.5.1997. The TI application was finally decided by the Addl. Civil Judge (JD) No. 5, Jaipur under order dated 16.9.1998 (Annex.2) whereby Vimla Devi was restrained from constructing any wall or putting any channel gate or creating any hinderance on the passage in question and further directing her to maintain status quo as it existed pending suit.
3. It is the case of the petitioners that Vimla Devi, defying temporary injunction order dated 16.9.1998 (supra), got erected wall at the place shown in the map from A to B & B to C, as also to a place adjacent to ancestral room of the petitioners gate of which opening to the Baramada in question has stood blocked from 18.9.1998, inasmuch as enforcement officers of the Municipal Corporation Jaipur after their site inspection got served a show cause notice to Vimla Devi as to the encroachment by construction of the wall on the Baramada (Ikdara) in dispute.
4. But Vimla Devi instituted suit No. 266/98 against the Municipal Corporation on 22.9.1998 and challenged the aforesaid notice for demolishing the construction of the wall erected by her on 18.9.1998 on the Baramada in dispute not only without arraying the present petitioners as party to the suit but also by concealing temporary injunction order dated 16.9.1998 and thereby misled the Addl. Civil Judge (JD) No. 4, Jaipur City with an oblique motive to get stay order.
5. Since they were not arrayed as defendants to the suit filed subsequently by Vimla Devi, the petitioners herein also got instituted another suit No. 138/98 (Satyanarain Singh v. Vimla Devi and Ors.). Besides they moved an application before the Addl. Civil Judge (JD) No. 4, Jaipur City for impleading them as party defendants to the suit of Vimla Devi, which was allowed by order dated 8.12.1999, against which, Vimla Devi preferred revision petition No. 115/2000 but it was dismissed by this Court, and on 13.4.2000 this Court ordered to consolidate all three suits, for which the District Judge was directed to assign these trioka suits to one Presiding Officer so as to decide expeditiously.
6. The petitioners moved application (registered as Civil Misc. Appln. 166/98) under Section 151, CPC impleading Vimla Devi (original defendant No. 1), Shantidevi (original plaintiff) & Govindnarain (defendant No. 5) as respondents on 6.11.1998 and no other defendants were impleaded as respondents to that application, to which contesting respondent Vimladevi (plaintiff) had filed her reply before Addl. Civil Judge No. 5, Jaipur City where though two other applications were also filed under Section 151, CPC by Shantidevi & Narendra Kumar (Civ. Misc. Appl. No. 72/98 & 73/98) but they were filed only against Vimladevi.
7. All these three misc. applications stood transferred to the Addl. Civil Judge No. 4, Jaipur City by virtue of this Court's order dated 13.4.2000 in Civil Revision Petition No. 115/2000, thereby these three applications were renumbered as 298/98, 296/98 & 300/98 respectively before the Addl. Civil Judge No. 4, Jaipur City.
8. In all these civil misc. applications under Section 151, CPC, there was common prayer to restore the position of common passage "ABC" shown in the map annexed to the plaint in consonance with temporary injunction granted by the trial Court on 16.9.1998 because there was common allegation that Vimladevi got constructed a wall to "Ikdara" resulting in hinderance to common passage in question which was totally in defiance of the temporary injunction against her.
9. Though these three misc. applications under Section 151, CPC have been dismissed by common order dated 19.9.2000 by the Addl. Civil Judge No. 4, Jaipur City (for short "trial Court") but only the present petitioners have assailed the common order in this revision petition so I am confining myself to consider the petitioners' application No. 166/98 (New No. 298/2000) and reply thereto of Vimladevi.
10. During the course of arguments, Shri R.D. Rastogi learned counsel for the petitioners contended that while passing the impugned order, the trial Court has grossly ignored rather overlooked its earlier order granting temporary injunction on 16.9.1998 by erroneously interpreting it, inasmuch as the learned trial Court which was having coordinate jurisdiction while deciding the application under Section 151, CPC, have given its own interpretation about portion ABC in the map in question, totally contrary to the pleadings so also site plan and thereby exceeded its jurisdiction warranting interference by this Court in its revisional jurisdiction.
11. On the other hand, Shri A.K. Bhandari, learned Senior Advocate appearing for the original defendant No. 1 (Vimladevi) urged that the co-ordinate trial Court under the impugned order has rightly held that under earlier order granting temporary injunction 16.9.1998 Vimladevi was categorically held as owner of "Ikdara" in question and only open passage adjacent to portion ABC was held as common passage and therefore, the defendant Vimladevi has not violated the earlier temporary injunction. It has also been contended by Shri A.K. Bhandari that temporary injunction was passed earlier by the trial Court on the application of Shantidevi and Narendra Kumar (Plaintiff) and not on the application of the present petitioners who were not the plaintiffs but only co-defendants and thereby they have no right to file either application under Section 151, CPC or this revision petition.
12. Albeit this Court has been taken through the material which have been considered by the trial Court while issuing temporary injunction on 16.9.1998, by Shri Bhandari with a view to interpret the T.I. on different consideration than taken by co-ordinate trial Court, by way of further analysis but in my considered opinion, it cannot be allowed at this stage when the temporary injunction has already attained its finality by virtue of having it not been challenged before the appellate or revisional Court.
13. Such emphasis is laid by Shri Bhandari that the passage to "Ikdara" adjacent to portion "ABC" is common one and has still been open for all the co-owners, where Vimladevi has not at all obstructed whatsoever and that being so, all the co-owners are using this common passage, as would be evident from the Court commission reports dated 4.6.1996 and 31.1.1999, which too revealed that "Ikdara" is not a part of the common passage, and such a common passage from its entrance upto common chowk has not been obstructed by any sort of constructions.
14. Having considered the rival contentions urged at the bar and entire material on record relevant for the present controversy limited to the extent of application of the petitioners (defendants), in my considered view, crucial point which requires to be adjudicated upon is as to whether Vimladevi had raised any construction of wall as disclosed in the application despite having the knowledge of temporary injunction against her passed on 16.9.1998 by the trial Court, and if so, then does it deserve to be removed being in definance of a temporary injunction?
15. Grant of temporary injunction on 16.9.1998 against Vimladevi by the co-ordinate trial Court is not in dispute at the bar and the crucial thing is a different interpretation being put by either of the parties as is suitable to them, to the said T.I. The learned trial Court by its order assailed herein, has declined to accede to the prayer of the present petitioners or other co-defendants or plaintiff (Shantidevi). The pith & substance of the prayer under Section 151, CPC qua the T.I. in question is to issue orders for removal of illegal construction raised by Vimladevi on 18.9.1998 so as to restore the position as it existed pending suit. The petitioners' case is that Vimladevi got constructed a wall A to B upto the height of a roof and further got fixed a channel gate at a place B to C and then put a lock thereat. Contrarily in reply to the petitioner's application under Section 151, CPC, at para 4 did not specifically deny, rather admitted the fact of having raised a wall in question and which according to her is not in defiance of the T.I. in question. Here I must also quote para 7 of written argument produced by Shri Bhandari on behalf of Vimladevi (defendant No. 1):
That the defendant No. 1 in order to protect his "Ikdara" (room for which there was no injunction order and which was prima facie held to be property of defendant No. 1, enclosed this room by a wall and gate for the purpose of safety and security.
16. Thus from the admissions wrung out of the pleadings on record, it stands undisputed that during the course of pending suit, so also at the time of or after grant of the T.I. in question, Vimladevi has got raised wall so also fixed channel gate besides putting lock at the "Ikdara" adjacent to which there has been common passage to all co-owners of the property in dispute.
17. Let me advert to the T.I. in question granted on 16.9.1998. No doubt, the trial Court in its order of temporary injunction in question observed that prima facie ownership of Vimladevi over "Ikdara" was established but concomitantly, it also held that adjacent to the place "ABC", the passage appeared to be common. That being so, the learned trial Court in its T.I. order under operative part specifically directed Vimladevi not to raise any wall, fix any gate etc., so also not to put any hinderance in the common thorough passage at the place shown as ABC in the map annexed to the plaint.
18. It is not the case of Vimladevi that the place where she got raised construction of a wall or fixed a gate thereat was not the common thorough passage to the co-owners of the property in question. What was the common portion is shown with letters "ABC" in the map annexed to the plaint so also as stated in prayer (Gha), which included common passage where the questioned wall and gate have been raised by Vimladevi, which ought not to have been raised by virtue of T.I. granted on 16.9.1998 and moreover, from the pleadings on record it was not in dispute that "Ikdara" and the place adjacent thereto where the questioned wall and gate have been raised, were the suit property including the common thorough passage where the ingress and egress were made absolute free for use of co-owners of the suit property under the T.I. in question, and further there was also order of maintaining status quo as it existed pending suit, under the T.I. in question meaning thereby there existed restraint order of raising any construction over and above the suit property including the common passage and/or "Ikdara" either adjacent thereto or at the passage itself, with a view to make free common use by ingress and egress to the passage in dispute.
19. Thus viewed, the learned trial Court failed to exercise jurisdiction vested in it under Section 151, CPC but further exceeded its jurisdiction by giving its own interpretation resulting in change of order passed by its co-ordinate Court. Hence it committed gross error of law in rejecting the application under Section 151, CPC for restoration of position as it existed at the time of issuing temporary injunction in respect of suit property consisting of "Ikdara" and common passage adjacent thereto, thereby it has resulted in causing prejudice to the rights of either of the parties to the suits, for which this Court has no option except to set at right.
20. Consequently, this revision petition is allowed with no order as to costs. The impugned order dated 19.9.2000 of the trial Court is set aside and accordingly the petitioner's application dated 6.11.1998 (Annex.3) is also allowed. Once it stands established that the construction was unauthorisedly carried out by Vimladevi notwithstanding the order of status quo subsisting as on the date when it was carried out, the interest of justice will be served, if the trial Court's directed to take necessary steps to ensure demolition of the construction in question even by resorting to police help, if necessary. Ordered accordingly.
21. The records in all the three civil suits be sent back with the direction to the trial Court to decide these civil suits expeditiously but not beyond one year from the date of receipt of the records.