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[Citation : RLW 2004 RJ 447 (HC)]
(Rajasthan High Court)
Dana Ram & Ors. Vs. Civil Judge (J.D.) & Ors. (Garg, J.)
HON'BLE SUNIL KUMAR GARG, J.
Dana Ram & Ors.
Versus
The Civil Judge (J.D.) & Ors.
S.B. Civil Writ Petition No. 7099 of 2003, decided on 27.04.2004
The Court can direct status quo to be maintained in respect of disputed property and further can appoint a Commissioner to visit the site and to report with regard to actual use of the property and if the report is submitted by the Commissioner, that report should be taken into account at the stage of granting temporary injunction and if that report is prepared in presence of both the parties, its importance becomes more and even in a case where the Commissioner visits the site in defendants absence and even without giving any notice to them, that report can be looked into if the Court feels that the said report gives picture of the site in correct manner. Thus, the report of the Commissioner forms acceptable basis for passing ad interim injunction or direction though such report is not an absolute evidence at that stage and has to be scrutinised with greater care and effectiveness at the stage of trial. (Para 12)
(b) C.P.C., Order 39, Rule 1 & 2 read with Constitution of India, Art. 226/227 –Interference of High Court when there is concurrent finding of both the Courts below in respect of issuing Temporary Injunction? – Held – High Court would not ordinarily interfere with the exercise of discretion in the matter of grant of Temporary Injunction – High Court will not reassess the material and seek to reach a conclusion different from the one reached by the Courts below. (Paras 14 & 24)
Petition dismissed.
High Court would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the Trial Court and substitute its own discretion therefor except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the order of the Court under scrutiny ignores the settled principles of law regulating grant or refusal of interlocutory injunction. The High Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter at trial stage, it would have come to a contrary conclusion. (Para 14)
Under Article 227 of the Constitution of India, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its finding or order is clearly perverse of patently unreasonable. (Para 24)
.
(2). The facts of the case as put forward by the petitioner are as under:
i) That the respondents No. 3 to 10 (plaintiffs) filed a suit (Annex.1) on 24.9.98 before the respondent No. 1 (Civil Judge) for declaration of rights, permanent injunction and declaration of easementry rights. Along with the suit, an application (Annex.2) for temporary injunction under Section 39 Rule 1 and 2 C.P.C. was also filed. In the application (Annex.2), the respondents No. 3 to 10 (plaintiffs) alleged that they are residing in Jhajharon Ki Dhani is Sarhad Manana and Khasra No. 398 is gair mumkin pasture land. The respondents No. 3 to 10 (plaintiffs) also pleaded in their suit (Annex.1) that towards north-east corner, there is an ancient way which crosses Khasra No. 401 in the south-east corner and touches the boundary of Khasra No. 401/3 and it goes ahead to the south boundary of Khasra No. 409/3 and ultimately, the aforesaid way joins the Katani Abadi Dhani. It was further pleaded by the plaintiffs (respondent No. 3 to 10) in their application (Annex.2) that the khasras No. 401/2 and 401/3 belonged to the defendants and alleged way has not been entered in the Revenue Record.
ii) Further case of the petitioners is that during pendency of application (Annex.2), the respondent No. 1 (Civil Judge) appointed a Commissioner to prepare a report and site plan of the disputed way and the Commissioner submitted its report on 26.9.1998 (Annex.3).
iii) Further case of the petitioners is that report dtd. 7.7.99 (Annex.4) of another commissioner was also obtained.
iv) Further case of the petitioners is that defendants (petitioners) filed reply (Annex.5) to the application (Annex.2) stating that the plaintiffs (respondents No. 3 to 10) are residing in khasra No. 409/1 and 411/1 and all the respondents No. 3 to 17 are members of one family and they have got their separate Katan (way) in khasra No. 419 and they were using the said way and thus, they are not entitled to use the way as claimed by the plaintiffs in their plaint (Annex.1) as well as in the application for temporary injunction (respondent No. 2).
iv) That the respondent No. 1 (Civil Judge) after hearing both the parties through order dtd. 29.9.99 (Annex.6) allowed the application (Annex.2) filed by the respondents No. 3 to 10 (plaintiffs) after discussing all the three necessary ingredients for issuing temporary injunction inter alia holding:
i) That the first report of the Commissioner dtd. 26.9.98 (Annex.3) is of Laxman Singh, Advocate in which there is specific mention that there is 12 ft. wide way and similarly way has been shown by another Commissioner (Mohd. Umar) in his report dtd. 7.7.99 (Annex.4).
ii) There is no dispute on the point that Khasra No. 398 is Gair Mumkin Nadi and there is also a way in khasra No. 409/3, but the dispute is only whether there is way in khasra No. 401/2 and 401/3 belonging to the defendants (petitioners) or not and for that respondent No. 1 (Civil Judge) came to the conclusion that since the way has been shown in both the reports (Annex.3 and 4) of the Commissioner and thus, he found a prima facie case in favour of th
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