Hon'ble TRIVEDI, J.—The present writ petition has been filed by the petitioner-defendant challenging the order dt.26.4.13 passed by the Civil Judge (JD) & Judicial Magistrate, First Class, Rajgarh (hereinafter referred to as 'the trial court') in Civil Suit No.21/12, whereby the trial court has allowed the appli-cation filed by the respondent No.1-plaintiff u/Sec. 151 of CPC and directed the petitioner to close the Mori, Bari and Gate put up by him on the western side of his property and further restrained him from using the said gate and also from putting up any construction without the permission of the Court.

2. In the instant case it appears that the respondent-plaintiff has filed the suit seeking permanent injunction against the petitioner-defendant, in which he had also filed application seeking temporary injunction on 20.7.12. The trial court on 20.7.12 had appointed the Commissioner while issuing notice to the petitioner-defendant. The Commissioner visited the site on 20.7.12 and prepared the report obtaining the signatures of the parties. The said report was submitted on 24.7.12 by the Commissioner before the trial court and the trial court directed the petitioner-defendant to maintain the status-quo as per the Commissioner's report, vide the order dated 24.7.12. It further appears that the petitioner-defendant submitted an application before the trial court stating interalia that he had carried out the construction of Mori, Bari and Gate in between the period 20.7.12 and 24.7.12 and, therefore, the said order was required to be modified. It further appears that the respondent-plaintiff also submitted the application under Section 151 of CPC praying for removal of additional construction put up by the petitioner-defendant and seeking direction to maintain status-quo as earlier directed by the court. The trial court after hearing the learned counsels for the parties passed the impugned order which is under challenge.

3. It is sought to be submitted by the learned counsel Mr. J.P. Gupta for the petitioner that the respondent-plaintiff has already filed an application under Order XXXIX Rule 2(a) of CPC which is pending for the disposal and had also filed the application under Section 151 of CPC praying for the removal of the construction, though there was no ex-parte interim order in between the period 20.7.12 to 24.7.12. According to him the order of the trial court being ex-facie illegal and perverse deserves to be set aside.

4. However, the learned counsel Mr. Mohar Pal Meena for the respondents has submitted that the petitioner had carried out the construction in violation of the impugned order dated 24.7.12 passed by the trial court and had not maintained the position as per the Commissioner's report dated 20.7.12. According to him the impugned order being just and proper, no interference of this court is warranted.

5. Having regard to the submissions made by the learned counsels for the parties and to the documents on record, more particularly the impugned order passed by the trial court, it appears that though the Commissioner had prepared the report on 20.7.12, in presence of the parties, pursuant to the order passed by the trial court on 20.7.12, the said report was submitted by the Commissioner in the trial court on 24.7.12. The trial court on 24.7.12 directed the petitioner-defendant to maintain status-quo as per the Commissioner's report dated 20.7.12. As per the case of the petitioner he had already carried out further construction in between the period 20.7.12 to 24.7.12 and, therefore, the said order was required to be modified. Since the respondent-plaintiff had already filed an application under Order XXXIX Rule 2(A) of CPC alleging breach of injunction, in the opinion of the court the application under Section 151 of CPC for removal of the said construction allegedly carried out by the petitioner in violation of the order dated 24.7.12 was not maintainable. The court also finds substance in the submission m

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