Rajasthan High Court - Jodhpur
Dinesh Parmar vs Smt. Usha Sharma on 5 February, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1307/2021
1. Dinesh Parmar S/o Shri Mool Chand Ji, Aged About 58
Years, Resident Of B-45, Shastri Nagar, Jodhpur Through
Power Of Attorney Holder Ayub Khan S/o Shri Ahmed
Khan, By Caste Musalman, Aged About 49 Years, Resident
Of B-14, Marudhar Nagar, Pal Link Road, Kamla Nehru
Nagar, Jodhpur.
2. Lalit Parmar S/o Shri Mool Chand Ji, Aged About 53 Years,
Resident Of B-45, Shastri Nagar, Jodhpur Through Power
Of Attorney Holder Ayub Khan S/o Shri Ahmed Khan, By
Caste Musalman, Aged About 49 Years, Resident Of B-14,
Marudhar Nagar, Pal Link Road, Kamla Nehru Nagar,
Jodhpur.
----Petitioners
Versus
1. Smt. Usha Sharma W/o Shri Taresh Sharma, By Caste
Brahmin, C/o Anshu Sharma, Resident Of Behind T.b.
Hospital, Pal Link Road, Jodhpur.
2. Raj Kumar Vyas S/o Late Shri Gordhan Das Ji, By Caste
Brahmin, Resident Of A-345, Shastri Nagar, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Narendra Thanvi on VC.
For Respondent(s) : Mr. O.P. Boob on VC.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved on 02/02/2022
Pronounced on 05/02/2022
1. In the wake of instant surge in COVID - 19 cases and spread
of its highly infectious Omicron variant, lawyers have been advised
to refrain from coming to Courts.
2. This writ petition has been preferred claiming the following
reliefs:
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"It is, therefore prayed that this Hon'ble Court may
be pleased to issue a writ of certiorari or any other
appropriate writ, order or direction: -
(i) quash the impugned order dated 21.11.2020
(ANNEXURE-4) passed by the Learned Additional District
Judge No.4, Jodhpur Metropolitan in Civil Misc. Case No.
145/2020; and
(ii) the application filed by the petitioners/applicants
under Section 151 C.P.C may be allowed with costs in toto"
4. Learned counsel for the applicants/petitioners submits that
the respondent No.1 had filed a suit for declaration, permanent
and mandatory injunction against the petitioners before the
learned trial court.
5. Learned counsel for the applicants/petitioners further
submits that the petitioners preferred an application under Section
151 of the C.P.C. with the prayer seeking permission to conduct
repair works in the shop premises in question, looking to the
urgent need therefor.
7. Learned counsel for the applicants/petitioners also submits
that the said application was rejected merely on the ground that
vide an order dated 03.02.2017 of this Hon'ble Court, a stay on
further proceedings was operating with respect to the main suit,
despite the shop premises in question being in urgent need of
repairs, owing to the fact that the roof was broken and water was
leaking therefrom. Learned counsel for the applicants/petitioners
thus submits that being aggrieved by the impugned order passed
by the learned trial court, the present petition has been preferred
claiming the aforementioned reliefs.
8. Learned counsel for the applicants/petitioners, in support of
his submissions, relied upon the following judgments:
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8.1 In 2008 (1) D.N.J. (Raj.) 128 : D.B. Civil Special Appeal
(Writ) No. 1499 of 2006 Surendra Sawhney Vs. Muralidhar
& Ors. wherein at Paras. 20 and 21, the Hon'ble Division Bench of
this Court observed:
"20. The legal position, thus, appears to be well
crystallised that inspite of the trial of the suit having been
stayed under Section 10 of the Code of Civil Procedure, the
consideration of the application/s for the interlocutory reliefs,
such as grant of injunction, appointment of receiver,
attachment before judgment, impleadment of a party,
amendment in the plaint etc., may be considered and order
passed because such an order cannot be taken to be a step in
the trial of the suit.
21. Seen thus, it is apparent that the Trial Court failed to
exercise the jurisdiction vested in it in deferring the
consideration of the two applications made by the plaintiff. We
find no justification in order of the trial Court in deferring the
consideration of these two applications until the decision of he
civil suit (301/1992) by Delhi High Court."
8.2 In 1999 Allahabad 1 : Civ. Misc. Writ Petn. No. 13293
of 1998 Rameshwar Vs. Vth Addl. Dist. Judge, Basti and
others. wherein at Para 6, the Hon'ble Allahabad High Court
observed:
"Our experience shows that on many ocasions for some
reason or other further proceedings are stayed. In order to
carry on the process of the suit certain steps are to be taken
in aid of the proceedings or any other measures to keep the
proceedings alive. The purpose of grant of stay is not the
purpose to delay the process. If the interlocutory matter are
decided and the suit is kept ready to proceed further as soon
as the stay of further proceeding cease to be operative from a
stage which could have arrived to ripen the case by disposing
of interlocutory matter in between without affecting the merit
of the case would be in aid of the judicial process and as such
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not unwelcomed. On the other hand it would shorten the time
and help the parties to make the suit ready."
9. On the other hand, learned counsel for the
non-applicants/respondents draws the attention of this Court to
the order, dated 03.02.2017, passed by this Court by which a
clear direction was issued staying the proceedings before the Trial
Court until the subsequent Court date. Therefore, in light of the
clear order directing the maintenance of the status quo of the suit
property i.e. the shop premises in question, the learned trial court
has not committed any error in passing the impugned order.
10. Heard learned counsel for the parties as well as perused the
record of the case, alongwith the precedent laws cited above.
11. This Court observes that a clear and cogent order of this
Court, staying any further proceedings before the learned trial
court, is evidently operational, and therefore, the relief claimed by
the applicants/petitioners in the application seeking permission to
conduct repairs, would lead to an alteration in the status quo of
the suit property i.e. the shop premises in question, and thus, the
submissions made in regard thereto are not sustainable.
12. Thus, in light of the aforesaid observations, no case for
making any interference is made out.
13. Consequently, the present petition is dismissed. All pending
applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI),J.
10-SKant/-
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