JUDGMENT

V.L. Achliya, J. - Rule. Rule made returnable forthwith. By consent heard finally.

2. The short question that falls for consideration in this petition is whether in a temporary injunction proceeding filed under Order 39, Rule 1 of C.P.C., the Court has the jurisdiction on the application of either party to adduce oral evidence for deciding such application.

3. Before adverting to deal with the submissions advanced, it is useful to refer few facts leading to filing of petition. The respondents herein have filed R.C.S. No. 213/2017 claiming perpetual injunction as well as mandatory injunction against the petitioner. By way of interim relief filed a application for temporary injunction under Order 39, Rule 1 of C.P.C.

4. The respondents/plaintiffs have approached with the case that the petitioner is a tenant of suit premises bearing municipal house No. 4/202 CTS No. 3131/7. Towards western side of said premises, there is open space and well which is under common use of owner of CTS No. 3131/1 to 3131/9. So also, there is toilet/bathroom in common use of the residents. The petitioner - defendant has constructed wall admeasuring 8 x 10 x 6 ft. in the open space and thereby restricted the use of open space, well and toilet/bathroom. In the back-ground of the facts pleaded in the plaint, the plaintiffs have claimed the relief of perpetual injunction as well as mandatory injunction to demolish the wall constructed in open space. By way of interim relief, the plaintiffs have moved application for temporary injunction under Order 39, Rule 1 of C.P.C. vide Exh. 6 seeking mandatory injunction against the defendant to demolish said wall.

5. On service of suit summons, the defendant appeared and filed Written Statement as well as Say to the application [Exh.6] and disputed the case putforth by the plaintiffs. The defendant opposed application [Exh.6] with contention that the reliefs claimed in the Suit as well as the application for temporary injunction are one and the same and granting of relief in the temporary injunction application would amount to grant of reliefs claimed in the Suit. The petitioner has taken a specific stand that the wall in question is in existence since many years and the defendant has not made construction as alleged by the plaintiffs.

6. Since the prayers in Suit as well as application made under Order 39, Rule 1 of C.P.C. i.e. Exh. 6 are identical and granting of relief in terms of application [Exh.6] would amount to grant of reliefs claimed in the Suit, the petitioner-defendant filed application vide Exh. 29 for permission to adduce oral evidence of himself and his witnesses for the purpose of deciding the application for temporary injunction i.e. Exh. 6. The respondent-defendant opposed the application with contention that application needs to be decided only on the basis of affidavits of parties as well as the documents produced in support of respective contentions. It is further contended that the application is filed with ulterior motive to prolong the hearing of application [Exh. 6] and urged to reject the application.

7. On due consideration of the rival submissions, trial Court has rejected the application [Exh.29] with observation the request of the petitioner - defendant to adduce oral evidence can not be entertained at the stage of deciding the application seeking temporary injunction and same can be entertained only after framing of issues. It is observed that at the stage of deciding the application seeking temporary injunction, the defendant can prove his case by filing affidavit and the documents in support of his case. Being aggrieved the petitioner-defendant has preferred this petition.

8. Mr. S.S.Bora, learned counsel for the petitioner-defendant assailed the impugned order with contention that the impugned order is ex-facie incorrect, contrary to scope of exercise of powers under Order 39, Rule 1 of C.P.C. It is contended that perusal of Order 39, Rule 1 of C.P.C. shows that, parties to