Rajkumari vs Arvind Kumar
2022 Latest Caselaw 9304 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1110/2022

Rajkumari W/o Late Shri Tejsingh, Aged About 51 Years, D/o Late Shri Madan Singh, R/o Aahor, Tehsil Aahor, Distt. Jalor (Raj.) At Present Chandpole, Chauka Behind Shiv Mandir, Jodhpur (Raj.)

----Appellant Versus

1. Arvind Kumar S/o Himmatmal Ji, Aged About 48 Years, R/ o Kalupura Road, Aahor, Tehsil Aahor, Distt. Jalor (Raj).

2. Vikram Singh S/o Sumer Singh, Aged About 49 Years, R/o Karnot Krishi Farm, Aahor, Tehsil Aahor, Distt. Jalor (Raj.)

3. Laldan S/o Khetdan, Aged About 58 Years, R/o Sanwada, Tehsil Aahor, Distt. Jalor (Raj.)

4. Rajusingh S/o Oatsingh, Aged About 49 Years, R/o Aahor, Distt. Jalor (Raj.)

5. Sub-Registrar, Aahor, Office Tehsildar And Sub-Registrar, Aahor (Raj.)

----Respondents

For Appellant(s) : Mr. Prashant Tatia For Respondent(s) : Mr. Anil Mehta caveator

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Order

18/07/2022

The present Misc. Appeal has been preferred by the plaintiff-

appellant against the order dated 17.05.2022 passed by the

learned Additional District Judge, Jalore (hereinafter referred to as

the learned trial Court for short) in Civil Misc. No.13/2022

whereby, the leaned trial Court has rejected the application filed

by the appellant under Order 39 Rule 1 and 2 of the CPC.

(2 of 3) [CMA-1110/2022]

The facts in nutshell are that the appellant-plaintiff filed a

suit seeking sale deed dated 11.12.2020 as null and void and

decree of permanent injunction against the respondents-

defendants before the learned trial Court.

Alongwith the said suit, the appellant has also filed an

application under Order 39 Rule 1 and 2 of the CPC seeking

temporary injunction in the manner that the respondents may be

restrained from alienating the suit property and not create third

party rights with respect to the suit property.

Learned counsel appearing for the plaintiff-appellant

vehemently submitted that while adjudicating the application for

grant of temporary injunction, the learned trial Court has gave

finding regarding validity of the sale deed itself and has

erroneously commented on the merits of the case that from the

averments of the suit, the appellant could not get success in it.

Learned counsel for the plaintiff-appellant submits that such a

finding of the learned trial Court is erroneous. In support of his

arguments, learned counsel for the appellant has relied upon the

following judgments:-

"1. Rania Vs. Jagdish Chandra, reported 2002 WLC (Rajathan) 283.

2. Smt. Renuka Bhati & Ors. Vs. His Highness Maharawal Brijraj Singh and Another reported in 2010(2) RLW 1067."

Per contra, learned counsel appearing for the respondent

caveator submits that the learned trial Court has rightly passed

the impugned order and there is no vice or illegality in it. Thus, it

was prayed that the present misc. appeal may be dismissed.

Learned counsel appearing for the respondent No.1 relied

upon the following judgments:-

(3 of 3) [CMA-1110/2022]

1. 2020(4) SCC Civil 128 : Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)

2. 2021(1) SCC Civil 351 : Suraj Lamp & Industries Pvt. Vs. State of Haryana & Anr.

3. 2010(1) RLW 578 : Kashi Math Samsthan & Anr. Vs. Srimad Sudhindra Thirtha Swamy & Anr.

I have considered the rival arguments of the learned counsel

for the parties and perused the material available on record.

A perusal of the operative part of para No.8 of the impugned

judgment shows that while deciding the application under Order

39 Rule 1 and 2 read with 151 of the CPC, the learned trial court

made observation on the merits of the suit itself and that would

definitely prejudice the case of the appellant. The findings of the

learned trial court in the order of temporary injunction application

is virtually final adjudication of the matter without framing the

issues and without taking the evidence for adjudication of the

issues.

In view of the above, the present Misc. Appeal is allowed.

The impugned order dated 17.05.2022 is quashed and set aside.

The learned trial Court is directed to decide the suit itself

within a period of one month from the date of receipt a certified

copy of the order instant.

Till then, the respondents shall not alienate the suit property

and shall also not create any third party right with respect to the

suit property.

The stay application also stands disposed of accordingly.

(MADAN GOPAL VYAS),J 25-Hanuman/-

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