Rajasthan High Court
Tulsiram Son Of Shri Shivshankar @ ... vs Ram Kumar Sharma Son Of Late Shri ... on 18 April, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 2346/2022
Tulsiram Son Of Shri Shivshankar @ Shibbo, Resident Of Village
Aghapur, Tehsil And District Bharatpur.(Rajasthan).
----Petitioner-Defendant
Versus
1. Ram Kumar Sharma Son Of Late Shri Brij Bhushan
Sharma, Resident Of Village Aghapur, At Present Behind
Old Laxman Mandir, Bharatpur, Tehsil And District
Bharatpur. (Rajasthan).
2. Amit Sharma Son Of Late Shri Dinesh Chand Sharma,
Resident Of Village Aghapur, At Present Behind Old
Laxman Mandir, Bharatpur, Tehsil And District Bharatpur.
(Rajasthan).
----Respondents-Plaintiffs
For Petitioner(s) : Mr. Raj Kumar Goyal
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
18/04/2022
This writ petition under Article 227 of the Constitution of
India has been filed against the order dated 07.01.2022 passed by
the learned Additional District Judge No.3, Bharatpur in Civil
Appeal No.3/2021(10/2021), CIS No.10/2021 dismissing the
appeal preferred by the petitioner-defendant against the order
dated 16.01.2021 passed by the learned Civil Judge, Bharatpur in
Civil Misc. Case No.105/2020 Computer Registration No.109/2020
whereby, an application filed by the respondents-plaintiffs under
Order 39 Rule 1 & 2 read with Section 151 CPC was allowed.
(2 of 4) [CW-2346/2022]
The facts in brief are that the respondents filed a civil suit for
permanent and mandatory injunction stating therein that the
petitioner-defendant has obstructed their only approach way for
their residential property. Alongwith the suit, they filed an
application for temporary injunction in mandatory form which has
been allowed by the learned trial Court vide its order dated
16.01.2021 which was unsuccessfully challenged by the petitioner
by way of a civil misc. appeal which has been dismissed by the
learned Appellate Court vide its order dated 07.01.2022.
Learned counsel for the petitioner contended that the
learned Court below could not have been granted interim relief in
mandatory form as it amounts to allowing the suit itself. He
submitted that in the Commissioner Report, the alternative way
available to the respondents was not disclosed which led to
erroneous findings by the learned Court. He, therefore, prayed
that the writ petition be allowed and the order be quashed and set
aside. He, in support of his submission, relies upon an order dated
28.03.2011 passed by the co-ordinate Bench of this Court in case
of Kamal Kumar Vs. Bheru Bux & Ors., 2011 8 RCR (Civ) 929.
Heard. Considered.
There is concurrent findings of the facts that since the
respondents-plaintiffs have been deprived by the petitioner of only
way available for them to approach their residential
accommodation.
Learned counsel for the petitioner failed to point out any
perversity in the order and has failed to show that the
respondents have any other alternative way available to them to
approach the subject property. Rather, he admitted that absence
(3 of 4) [CW-2346/2022]
of alternative way available to the respondents in the
Commissioner report, has led to erroneous finding.
In these circumstances, in the considered opinion of this
Court, the learned Courts below have committed no error in
directing the petitioner to remove obstacle in the only approach
way available to the respondents. True it is that as a general
principle, interim relief should not be granted in mandatory form;
but, if the exigency so warrants, the Court is not incompetent to
grant such relief in mandatory form. A co-ordinate Bench of this
Court has, in case of Abdul Karim & Ors. Vs. Abdul Sattar decided
on 13.03.2008, held as under:-
"5. In the instant matter the plaintiffs are
seeking an interim mandatory injunction.
Hon'ble Supreme Court in Metro Marins and
Another v. Bonus Watch Company (P) Ltd. and
Others, reported in
MANU/SC/0760/2004MANU/SC/0760/2004 :
2005(1) Apex Court Judgments 436 (S.C.) :
2005(1) Civil Court Cases 308 (S.C.) : 2004
(7) SCC 478 held that an interim mandatory
injunction can be granted only in exceptional
cases. In Dorab Cawasji Warden v. Coomi
Sorab Warden and Others, reported in
MANU/SC/0161/1990MANU/SC/0161/1990 :
1991 Civil Court Cases 99 (SC) : 1990 (2) SCC
117, Hon'ble Supreme Court, while providing
guidelines for grant or refusal of interlocutory'
mandatory injunction, held that it shall
ultimately rest in sound judicial discretion of
the Court to be exercised in the light of the
facts and circumstances in each case."
The judgment relied upon by the learned counsel for the
petitioner in case of Kamal Kumar (supra) is of no help to him as
therein, the learned trial Court has rejected the application filed
by the petitioner under Order 39 Rule 1 & 2 read with Section 151
CPC holding that no final relief should be granted at that stage.
(4 of 4) [CW-2346/2022]
The judgment does not disclose the fact involved therein. It is trite
that judgment of Court cannot be accepted as Euclid's formula and
has to be read in the context of factual matrix involved therein.
This Court finds no patent jurisdictional error or perversity in
the order impugned warranting interference of this Court in its
supervisory jurisdiction.
The writ petition is dismissed accordingly.
(MAHENDAR KUMAR GOYAL),J
Sudha/72
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