Rajasthan High Court
Girraj Singh Son Of Shri Jadveer Singh @ ... vs Ramesh Chand Son Of Shri Jagan Prasad on 9 May, 2024
Author: Narendra Singh Dhaddha
Bench: Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1313/2024
Girraj Singh Son Of Shri Jadveer Singh @ Raghuveer Singh,
Aged About 56 Years, Resident Of Nadiyan Mohallan, Bharatpur,
Tehsil And District Bharatpur (Raj.).
----Appellant
Versus
1. Ramesh Chand Son Of Shri Jagan Prasad, Resident Of
Choburja Bazar, Bharatpur (Raj.).
2. Rajesh Son Of Ramesh Chand, Resident Of Choburja
Bazar, Bharatpur (Raj.).
3. Pradeep Son Of Ramesh Chand, Resident Of Choburja
Bazar, Bharatpur (Raj.).
----Respondents
For Appellant(s) : Mr. Deepak Sharma, Adv.
For Respondent(s) : Mr. J. P. Goyal, Senior Adv. assisted
by Ms. Minal Bhargava, Adv.
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
Date Of Judgment 09/05/2024
By way of this judgment, the maintainability of the present
miscellaneous appeal is being decided.
The present civil miscellaneous appeal has been filed by the
appellant-plaintiff(for short 'the plaintiff') against the order dated
18.01.2024 passed by the Additional District Judge, No.1,
Bharatpur(for short 'the appellate court') in civil miscellaneous
appeal No.03/2024, whereby the temporary injunction application
filed by the plaintiff has been dismissed which was filed along-with
an appeal arising out of the judgment and decree dated
12.12.2023 passed by the trial court, whereby the trial court
(2 of 3) [CMA-1313/2024]
dismissed the suit filed by the plaintiff for declaration and
permanent injunction and partly allowed the counter claim filed by
the defendant Nos.2 and 3.
At the very outset, learned counsel for the defendants-
respondents (for short 'the defendants') has opposed the appeal
filed by the plaintiff on the ground of its non-maintainability.
Learned counsel for the defendants submits that the present
appeal comes under the purview of Order 41 Rule 5 CPC. The
appellate court rejected the temporary injunction
application(interim application) filed by the plaintiff during the
pendency of the appeal. Learned counsel for the defendants also
submits that the impugned order comes under the purview of
interlocutory order because the appeal is still pending
consideration before the appellate court. So, the plaintiff should
have filed a writ petition against the said order. So, the present
appeal be dismissed on the ground of its non-maintainability.
Learned counsel for the defendants has placed reliance upon
the judgment passed by this court in the case of S.N.Banerjee
Vs. State Of Raj. & Ors. in S. B. Civil Revision Petition
No.350/1988 decided on 01.08.1988.
Learned counsel for the plaintiff has opposed the arguments
advanced by learned counsel for the defendants and submitted
that the present appeal is civil miscellaneous appeal. The appellate
court rejected the temporary injunction application filed by the
plaintiff in civil Case No.03/2024. So, the present appeal is
maintainable.
Learned counsel for the plaintiff has placed reliance upon the
judgment passed by the Bombay High Court in the case of Shivaji
(3 of 3) [CMA-1313/2024]
Shankar Jadhav Vs. Laxman Gajanan Godbole reported in
AIR 2019 BOMBAY 1.
I have considered the arguments advanced by learned
counsel for the plaintiff as well as learned counsel for the
defendants.
It is an admitted position that the plaintiff filed the regular
first appeal along-with temporary injunction application before the
Appellate Court against the judgment and decree dated
12.12.2023 passed by the trial court, whereby the trial court
dismissed the plaintiff's suit for declaration and permanent
injunction. The Appellate Court vide order dated 18.01.2024
dismissed the temporary injunction application filed by the
plaintiff. In my considered opinion, the present civil miscellaneous
appeal is not maintainable because it is an interlocutory order and
the appeal is also pending consideration before the Appellate
Court. The judgment passed in the case of Shivaji Shankar
Jadhav(Supra) relied by counsel for the plaintiff is not applicable
in the present case because in the said case, regular civil appeal
was filed and the present case pertains to civil miscellaneous
appeal. So, the present appeal filed by the plaintiff being non-
maintainable is disposed of with liberty to the plaintiff to avail
appropriate remedy, in accordance with law.
Pending application, if any, also stand(s) disposed of.
(NARENDRA SINGH DHADDHA),J
Gourav/174
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