Rajasthan High Court - Jodhpur
Smt. Radha Devi vs Municipal Board, Mount Abu & Ors on 5 January, 2009
Author: Prakash Tatia
Bench: Prakash Tatia
1
SB Civil Writ Petition No.4944/2008
Smt. Radha Devi vs. Municipal Board, Mt. Abu & Ors.
S.B. Civil Writ Petition No.4944/2008
Smt. Radha Devi.
vs.
Municipal Board, Mount Abu & Ors.
Date : 5.1.2009
HON'BLE MR. PRAKASH TATIA, J.
Mr.Vikas Balia, for the petitioner. Mr.Yashwant Mehta, for the respondent.
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Heard learned counsel for the parties.
This writ petition is arising out of the appellate court's order dated 19.7.2008 which was passed while exercising appellate jurisdiction and the appellate court set aside the order of injunction granted by the trial court dated 23.7.2005. The appellate court reversed the trial court's injunction order to maintain status quo by its order dated 19.7.2008. The first appellate court was of the view that the document which was submitted by the petitioner before the respondent Municipal Board, Mount Abu for seeking permission 2 SB Civil Writ Petition No.4944/2008 Smt. Radha Devi vs. Municipal Board, Mt. Abu & Ors.
to repair the roof had no sign of any of the person of the Municipal Board and, therefore, the trial court committed error by observing that the petitioner sought permission from Municipal Board for repair of the roof.
The roof has already been repaired as per the petitioner and as per the respondent, in place of old tin shed, new roof has been constructed, against which there is a prohibition as the area of Mount Abu has been declared "No Construction Zone".
The petitioner has placed on record the photostat copy of the applications dated 1.6.2005 (Annex.2 & 3) which has not only seal of the Municipal Board but signature of some one on behalf of Municipal board. At the time of consideration of injunction prayer, the Court is required to record prima-facie finding and not final finding. If the trial court has considered the document and has granted injunction to maintain status quo in a matter where the construction in question is already completed and more than 3 years had already passed to the grant 3 SB Civil Writ Petition No.4944/2008 Smt. Radha Devi vs. Municipal Board, Mt. Abu & Ors.
of injunction, then the appellate court should have been slow in reversing that order to maintain status quo. The appellate court could have directed the trial court to decide the suit expeditiously.
In view of the above reason, it appears that there is error apparent on the face of the record and the appellate court has committed error of jurisdiction by reversing the injunction order to maintain status quo.
Since the suit is for grant of injunction and there is only one defendant, the trial court can certainly decide the suit expeditiously.
Consequently, this writ petition is disposed of with a direction to the trial court to decide the suit expeditiously preferably within a period of one year from the date of receipt of certified copy of this order and till then, both the parties shall maintain status quo and the petitioner shall also furnish an undertaking that she will not add, alter or change the premises in any manner and the respondent shall also not demolish any structure 4 SB Civil Writ Petition No.4944/2008 Smt. Radha Devi vs. Municipal Board, Mt. Abu & Ors.
of the petitioner.
It is made clear that neither the first appellate court, nor the trial court nor this Court has decided any contentious issue finally which may affect the trial or decision of the suit in any manner.
(PRAKASH TATIA), J.
S.Phophaliya