Judgement Key Points

Honble YADAV, J. - The plaintiff revisionist filed a suit against the defendant opposite party in the Court of Munsif, Bikaner for permanent injunction restraining defendant from making construction over the area known as chowki outside his residential house which is adjacent to the plaintiffs house. The permanent injunction was claimed on the ground that the plaintiff has a right of easement of light and air from the area known as chowki which is lying open. It was also claimed on the ground that the Municipal Council, Bikaner ha refused permission for raising construction over the same but despite refusal of permission to raising construction over the disputed land the defendant was illegally making constructions on the open land popularly known as chowki.

(2). After service of notice the defendant opposite party filed an objection opposing application moved by the plaintiff revisionist under 0.39 r. 1 and 2 CPC on the ground inter alia that the house of the plaintiff revisionist is not adjacent to his house. The land in dispute popularly known as chowki is not a government land but it belongs to the defendant opposite party which he obtained by patta. Regarding refusal of permission by Municipal Council, Bikaner a evasive reply has been given by the defendant opposite party stating therein that he is seeking relief before the Municipal Council, Bikaner.

(3). After hearing the learned counsel for the parties the learned Munsif and Judicial Magistrate Ist Class, Bikaner issued temporary injunction restraining the defendant opposite party from raising construction over the open disputed land popularly known as chowki. The learned Munsif and Judicial Magistrate Ist Class, Bikaner issued temporary injunction on 10.4.89.

(4). Against grant of temporary injunction under 0.39 r.l and 2 CPC by the learned Munsif and Judicial Magistrate 1st Class, Bikaner on 10.4.89 the defendant opposite party filed an appeal under 0.43 r. 1 (r) CPC before the learned District Judge, Bikaner which was transferred for disposal according to law to the learned Additional Civil Judge, Bikaner.

(5). After hearing both the parties the learned Additional Civil Judge, Bikaner vide his order dated 21.1.93 set aside the order passed by learned Munsif and Judicial Magistrate Ist Class, Bikaner. Thus the injunction order which was granted by learned Munsif and Judicial Magistrate 1st Class, Bikaner was refused by learned Additional Civil Judge, Bikaner vide his order dated 21.1.1993.

(6). Aggrieved against refusal of temporary injunction under 0.39 r. 1 and 2 CPC by learned Additional Civil Judge, Bikaner the plaintiff revisionist has filed the instant revision before this Court.

(7). The present revision was filed on 23.2.93 before this court and a notice was issued to the defendant opposite party to show cause as to why this revision should not be admitted and disposed of. It is important to mention that on the same day following ad-interim stay order was passed : —

"Meanwhile, the status-quo as operating on the date of service of this notice will be maintained by the parties."

(8). I have heard the learned counsel for the parties at length and also critically examined the orders passed by both the learned courts below.

(9). It is urged before me by the learned counsel for plaintiff revisionist that the easementary rights of light and air of the plaintiff are affected therefore he is entitled for a temporary injunction which was legally granted by the trial court but the learned lower appellate court arbitrarily, capriciously, perversely and against the sound principle of law interfered with the discretion exercised by trial court which is impermissible and the defendant opposite party has no right to raise construction over the open land (chowki) against the bye laws framed by Municipal Board of Bikaner. According to him plaintiff has proved a prima facie case. Balance of convenience is also in his favour. The plaintiff will suffer irreparable injury if defendant opp

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