Rajasthan High Court - Jaipur
Rahul Kumar Bangani S/O Sh. K.H. Bangani vs Rseb Officers Colony on 24 April, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 24157/2018
Rahul Kumar Bangani S/o Sh. K.h. Bangani
----Petitioner
Versus
Rseb Officers Colony
----Respondent
For Petitioner(s) : Mr.Gaurav Sharma Saraswat For Respondent(s) : Mr.M.S.Saharan HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment / Order 24/04/2019
1. The petitioner by way of this writ petition assails the order dated 31.8.2018 passed by trial court whereby the application filed under Order 39 Rule 1 & 2 CPC was allowed in favour of the respondents and also assails the order dated 24.9.2018 passed by appellate court in appeal whereby the order passed by the trial court has been affirmed.
2. Counsel for the petitioner submits that both the courts below had no jurisdiction to pass the order under Order 39 Rules 1 & 2 CPC in view of specific bar contained in Sec.83 and 99 of the JDA Act as well as in terms of Sec.41 of the Specific Relief Act.
3. Counsel for the respondents submits that the respondents have filed the suit seeking injunction against the petitioner on the ground that he has encroached over the common facility area of the group housing society, and he has not raised any ground as bye laws of JDA Act. Thus the question of jurisdiction of the trial (Downloaded on 28/06/2019 at 01:49:32 AM) (2 of 3) [CW-24157/2018] court would not arise. His further submission is that no such argument was raised either before the trial court or before the appellate court and new pleadings having been raised at the stage of writ jurisdiction would not lie. It is pointed out that the application filed under Order 7 Rule 11 CPC is still pending before the trial court wherein the petitioner has raised similar argument.
4. I have considered the submissions and find that any finding given by this court in relation to the jurisdiction of the concerned court shall affect the result of application moved by the petitioner under order7 Rule 11 CPC and, therefore, this court restrains from making observations in this regard. The judgment cited by the counsel for the petitioner is, therefore, not required to be considered at this stage when the question is only with regard to the order passed by the courts below under Order 39 Rule 1 & 2 CPC. This court noticed that the petitioner has neither raised any objection at the stage of filing of written statement or at the stage of filing an appeal with regard to jurisdiction of the court. New pleadings at the stage of writ jurisdiction would, therefore, not lie as this court does not sit in appeal and has a limited scope to examine. Moreover, the application filed under Order 7 Rule 11 CPC by the petitioner raising the issue of jurisdiction of the concerned court is still to be decided.
5. In view thereof, this court does not find any reason to interfere with the concurrent findings of the courts below. However, same would be subject to final out come of the decision to be taken by the concerned court on an application under Order 7 Rule 11 CPC. Taking into consideration all the aspects, the trial (Downloaded on 28/06/2019 at 01:49:32 AM) (3 of 3) [CW-24157/2018] court is directed to decide the application under Order 7 Rule 11 CPC expeditiously but not later than one month.
6. With the aforesaid observations, writ petition stands disposed of.
(SANJEEV PRAKASH SHARMA),J SANDEEP RAWAT /23/64 (Downloaded on 28/06/2019 at 01:49:32 AM) Powered by TCPDF (www.tcpdf.org)