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2024 Supreme(Online)(RAJ) 4734
[2024:RJ-JD:38556]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1977/2024 Smt. Nirmala Bai W/o Shri Karan Ji Gurjar, Aged About 42 Years, R/o Rustam Ji Gali, Dist. Pratapgarh,raj. Presently Residing At Shagun Garden, Mandsaur, Madhya Pradesh ----Appellant Versus
1. Smt. Heeramani W/o Vishnu Ji, D/o Laxman Ji Gurjar R/o Rustam Ji Gali, Dist. Pratapgarh, Raj.
2. Smt. Mangi Bai D/o Laxman Ji, W/o Shambhu Lal R/o Rustam Ji Gali, Dist. Pratapgarh, Raj.
3. Smt. Savitri Bai W/o Laxman Ji, R/o Rustam Ji Gali, Dist.
Pratapgarh, Raj.
4. Ankit S/o Shambhu Lal, R/o Rustam Ji Gali, Dist.
Pratapgarh, Raj.
5. Deepak S/o Shambhu Lal, R/o Rustam Ji Gali, Dist.
Pratapgarh, Raj.
6. The Municipal Council, Pratapgarh, Rajasthan ----Respondents For Appellant(s) : Mr. Hemant Jain For Respondent(s) :
HON'BLE MR. JUSTICE MADAN GOPAL VYAS
Order
18/09/2024 The present civil misc. appeal under Section 43 Rule 1(r) of the CPC has been filed by the appellant against order dated 05.04.2024 passed by learned District Judge, Pratapgarh (for short, 'learned trial Court') in Civil Misc. Case No.26/2024 (Smt. Nirmala Bai Vs. Smt.Heeramani & Ors.), whereby the application for temporary injunction filed by the appellant under Order 39 Rule 1 & 2 CPC was disposed of by learned trial Court while granting liberty to the respondents-defendants to raise construction over the property in dispute.
2. Learned counsel appearing for the appellant-plaintiff submits that learned trial Court has disposed of the application under Order 39 Rule 1 & 2 CPC however has wrongly granted permission to the respondents-defendants to raise construction over the property in dispute at their own risk and cost. Learned counsel further submits that it is the cardinal principle of law that while deciding the application under Order 39 Rule 1 & 2 CPC, learned trial Court is required to consider all the ingredients of granting injunctions i.e. prima facie case, balance of convenience and irreparable loss and these ingredients should be in favour of the applicant. However, a bare perusal of the impugned order dated 05.04.2024 reveals that the same is not only a non-speaking order but also does not deals with the essential ingredients for grant of injunction.
3. Despite service, nobody has appeared on behalf of the respondents.
4. I have perused the impugned order dated 05.04.2024. The impugned order only speaks that at the cost and risk of the defendants, they are at liberty to raise construction over the disputed property. Nothing more has been recorded in the impugned order. The impugned order is ex facie a non-speaking order and this Court is of the opinion that the same deserves to be quashed and set aside.
5. In view of the above, the present appeal is disposed of. The impugned order dated 05.04.2024 passed by learned District Judge, Pratapgarh in Civil Misc. Case No.26/2024 is quashed and set aside. Learned trial Court is directed to decide the application under Order 39 Rule 1 & 2 CPC afresh within a period of one month from the date of receipt of certified copy of this order after providing opportunity of hearing to all the parties concerned.
6. Till decision on application under Order 39 Rule 1 & 2 CPC, the status quo, as it exists today, with regard to the suit property shall be maintained by both the parties.
7. A copy of this order be sent to learned trial Court through E-
mail or fax.
(MADAN GOPAL VYAS),J
160-Bharti/-
