Rajasthan High Court
Smt. Sunita Saini Wife Of Shri ... vs Smt. Avatar Kanwar Wife Of Shri ... on 28 November, 2022
Bench: Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 4989/2021
Smt. Sunita Saini Wife Of Shri Nigam Singodia, Aged About 35
Years, Resident Of Plot No. 771, Ground Floor, Devi Nagar, New
Sanganer Road, Jaipur.
----Petitioner
Versus
1. Smt. Avatar Kanwar Wife Of Shri Satyanarain Singh,
Resident Of Plot No. 771, First Floor, Devi Nagar, New
Sanganer Road, Jaipur.
2. Jaipur Development Authority, Jaipur Through Its
Commissioner, Jawahar Lal Nehru Marg, Jaipur.
----Respondents
For Petitioner(s) : Mr. O. P. Mishra, Adv.
Mr. Ajay Verma, Adv.
For Respondent(s) : Mr. Hemant Gajraj on behalf of
Mr. Mahaveer Kalwa, Adv.
Mr. M. F. Baig, Adv. for JDA
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
ORDER RESERVED ON :: 23.11.2022
ORDER PRONOUNCED ON :: 28.11.2022
This Civil Writ Petition filed by the petitioner under Article
227 of the Constitution of India against the impugned order dated
06.04.2021 passed Additional District Judge No.3, Jaipur
Metropolitan Ist in Civil Misc. Appeal No.16/2020 reversing the
order dated 31.10.2020 passed by Additional Civil Judge &
Metropolitan Magistrate No.9, Jaipur Metropolitan Ist in temporary
injunction application by which learned court below allowed the
application for temporary injunction.
(2 of 4) [CW-4989/2021]
Learned counsel for the petitioner submits that petitioner
had filed a suit for permanent injunction against the respondent
Nos.1 & 2 and also filed the application for temporary injunction.
Learned counsel for the petitioner also submits that trial court vide
order dated 31.10.2020 allowed the application for temporary
injunction filed by the petitioner. After that, respondent No.1 had
filed an appeal but appellate court vide order dated 06.04.2021
set aside the order of the trial court. Learned counsel for the
petitioner also submits that it is an admitted position that
respondent No.1 was doing construction without attaining the
permission from respondent No.2. Learned counsel for the
petitioner also submits that respondent No.2 had also issued the
notice for illegal construction to respondent No.1. Learned counsel
for the petitioner also submits that order of learned appellate
court is perverse and learned appellate court reverse the order of
the trial court without appreciating the factual aspect of the case.
Learned counsel for the petitioner also submits that learned
appellate court should not interfere in discretion exercise by the
learned appellate court unless such discretion was found to be
palpably incorrect or untenable. Learned counsel for the petitioner
also submits that learned appellate court also fails to consider the
protection of easement rights to the petitioner because
respondent No.1 was doing construction without permission and in
violation of local laws. Learned counsel for the petitioner also
submits that learned appellate court had not given any reason for
disbelieving the notice issued by respondent No.2 to respondent
No.1. Learned appellate court merely disbelieved notice on the
ground that illegal construction was less than the measurement
(3 of 4) [CW-4989/2021]
provided in the sale deed. Learned counsel for the petitioner also
submits that if temporary injunction was not allowed in favour of
the petitioner then it would create multiplicity of the proceeding
and complicity. So, order of learned appellate court be set aside
and order of the trial court be restored.
Learned counsel for the petitioner has placed reliance upon
the following judgments : (1) Maharwal Khewaji Trust
(Regd.), Faridkot Vs. Baldev Dass reported in (2004) 8 SCC
488; (2) Mohd. Mehtab Khan & Ors. Vs. Khushnuma Ibrahim
Khan & Ors. reported in (2013) 9 SCC 221 and (3) Wander
Ltd. & Anr. Vs. Antox India P. Ltd. reported in 1990 Supp.
SCC 727.
Learned counsel for the respondent No.1 has opposed the
arguments advanced by learned counsel for the petitioner and
submitted that learned appellate court rightly came to the
conclusion that no prima facie case is made out in favour of the
petitioner and also submitted that respondent No.1 was doing
construction as per the norms of local authorities and also
submitted that as per sale deed, respondent No.1 was entitled to
construct the house. So, order of the learned appellate court does
not suffer from illegality or infirmity. So, petition be dismissed.
Learned counsel for the respondent No.2 submits that it is an
admitted position that respondent No.1 was doing construction
without permission and without following norms of the local
authorities. So, petition be allowed.
I have considered the arguments advanced by learned
counsel for the petitioner as well as learned counsel for the
respondents.
(4 of 4) [CW-4989/2021]
It is an admitted position that trial court had granted
temporary injunction in favour of the petitioner but learned
appellate court had set aside the order of temporary injunction
granted by the trial court. Learned appellate court wrongly came
to the conclusion that order of the trial court was based on notice
of the JDA. Learned appellate court also wrongfully inferred that
illegal construction is less than the measurement provided in the
sale deed. It is also admitted position that respondent No.1 had
not acquired any permission from respondent No.2 for
construction. During the course of arguments, respondent No.2
also submitted that due to stay of appellate court, they are not in
position to do as per law. So, in my considered opinion, learned
appellate court wrongly came to the conclusion that respondent
No.1 had right to construct as per sale deed without following local
laws. So, present petition deserves to be allowed.
Therefore, the Civil Writ Petition is allowed. The order of
learned appellate court dated 06.04.2021 is set aside and the
order of the trial court dated 31.10.2020 is restored.
All the pending applications also stand disposed of.
(NARENDRA SINGH DHADDHA),J
Jatin /65
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