The court upheld the dismissal of a temporary injunction application, emphasizing the completion of construction and absence of commercial activities as key factors.

ORDER :

(NUPUR BHATI, J.)

1. The present writ petition has been filed under Article 227 of theConstitution of India with the following prayers :-

“It is, therefore, most humbly and respectfully prayed that the present writ petition so preferred by the petitioner may kindly be allowed and :-

I. by an appropriate writ, order or direction, the order dated 19.09.2023 passed in original civil case No.171/2023 and the judgment/order dated 08.08.2024 passed in Civil Appeal No.138/2023 may kindly be quashed and set aside.”

2. Brief facts of the case are that the suit for permanent injunction, damages and mandatory injunction was filed by the petitioner/plaintiff before the learned Additional Chief Judicial Magistrate No.2, Jodhpur Metropolitan being Suit No.213/2023 stating therein that she is in possession of the property situated at Second B Road, Sardarpura, Jodhpur House No.160. It was further stated that the respondents No.1 and 3 (defendants) are bent upon to cause damage to the plaintiff’s property by raising illegal wall and are doing commercial activities on their property which is adjacent to the plaintiff’s property. Along with the suit, the petitioner also filed application for temporary injunction under Order 39 Rule 1 and 2 read with Section 151 CPC. Notices were issued to the respondents and written statement was filed on behalf of the respondents while denying the averments made in the application. After completion of the pleading of the parties, the application for temporary injunction was rejected by the trial court vide order dated 19.09.2023 (Annexure-3). After rejection of the application preferred by the petitioner, an appeal was preferred before the learned Additional District Judge No.3, Jodhpur Metropolitan, but the same was also rejected vide order dated 08.08.2024 (Annexure-4). Aggrieved by the orders dated 19.09.2023 (Annexure-3) and 08.08.2024 (Annexure-4), the petitioner preferred the instant writ petition.

3. Learned counsel for the petitioner submits that the learned Trial Court has erred in rejecting the application filed by the petitioner under Order 39 Rule 1 and 2 CPC wherein a prayer was made to restrain the respondent from raising illegal construction upon the land of the petitioner and also restrain them from raising any commercial construction as well as commercial activity on the construction raised by them. He further submits that the petitioner has specifically stated that the respondents have raised wall on the land belonging to the petitioner as they have encroached about 9 inches to one feet on the land of the petitioner from the south side of the house. He also submits that as the nature of the land is not reflected as commercial, therefore, the respondents ought not to run commercial activities on the said land.

4. Learned counsel for the respondents submits that the respondent No.2-Municipal Corporation, South Jodhpur, has specifically submitted in their reply that in case any commercial activity being run by the respondents, then appropriate action would be taken against them. He further submits that construction of the wall is already over and as of now, the respondents are living in the house, and they are not running any commercial activity in the house.

5. Heard learned counsel for the parties and perused the material available on record.

6. This Court, upon perusal of the impugned order dated 19.09.2023 (Annexure-3) passed by the learned Trial Court finds that the learned Trial Court after considering the pleadings of the parties observed that the construction of the wall is already over and only the finishing work remained and thus has rightly rejected the application filed by the petitioner under Order 39 Rule 1 and 2 CPC. Further, from the perusal of the reply filed by the respondent No.2-Municipal Corporation, South Jodhpur, it is reflected that the respondent No.2 has categorically stated that in case any commercial activity is run by the respondents in the premise, appropriate action