Rajasthan High Court - Jodhpur

Honorary Flight Lieutenant Shubhash Ji ... vs Harshvardhan Nandwana ... on 6 February, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:7643]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                    S.B. Civil Writ Petition No. 8985/2020

Honorary Flight Lieutenant Shubhash Ji Nandwana S/o Shri Har-
ishankar Nandwana, Aged About 69 Years, Through Power Of At-
torney Holder Ms. Neha Nandwana D/o Shri Shubhash Chandra
Nandwana, Aged About 30 Years, Resident Of 16-A-18, Bapu Na-
gar, Near Telicom Colony, Bhilwara (Raj.)
                                                                       ----Petitioner
                                       Versus
1.       Harshvardhan Nandwana S/o Late Shri Harishankar Ji
         Nandwana, Aged About 60 Years, Resident Of 7-B-7, Patel
         Nagar, Bhilwara (Raj.)
2.       Chandrakalla Baldi W/o Shri Mahaveer Prasaad Baldi,
         Aged About 67 Years, Resident Of 61-A, R.k. Colony,
         Bhilwara (Raj.)
3.       Dalchand Sharma S/o Shri Banshi Lal Ji Sharma, Aged
         About 41 Years, Resident Of Bavdi, Tehsil Mandal, District
         Bhilwara (Raj.)
4.       Deputy Registrar, Bhilwara, Add. Deputy Registrar Office,
         Bhilwara (Raj.)
                                                                    ----Respondents


For Petitioner(s)            :     Mr. Nitin Prakash Trivedi.
For Respondent(s)            :     Mr. Sanjay Nahar.
                                   Mr. Pushkar Taimini.


         HON'BLE DR. JUSTICE NUPUR BHATI

Order 06/02/2025

1. The instant writ petition has been filed while challenging the

order dated 02.09.2020 passed by District Judge, Bhilwara,

whereby, the appeal filed by the petitioner under the provisions of

Order XLIII Rule 1 (r) of CPC challenging the order dated

20.08.2020 passed by the learned trial, Bhilwara, in a suit filed by

the petitioner/plaintiff has been dismissed. By the said order, the

trial court granted an ad-interim temporary injunction while allow-

ing the defendant to proceed with construction, subject to the out-

come of the temporary injunction application. Additionally, liberty

was granted to the defendant to alienate the property, with such

[2025:RJ-JD:7643] (2 of 5) [CW-8985/2020]

transactions remaining subject to the final decision on the tempo-

rary injunction.

2. Brief facts of the case stated by the petitioner in the writ pe-

tition are that the petitioner/plaintiff filed a civil suit seeking a per-

manent injunction and cancellation of the power of attorney dated

05.11.1997 executed in favor of defendant no.1, as well as the

sale deeds dated 10.11.1997 and 15.11.2010 executed in favor of

defendant no.2 and 3, respectively. The agricultural land in ques-

tion, situated at Bhilwara, was allotted to the plaintiff, who re-

mained its owner and possessor. Since the plaintiff was often out

of town, defendant no.1 managed the property, but after retire-

ment, the plaintiff resumed its care and resided jointly at Nagar,

Bhilwara. Following a brain stroke suffered by the plaintiff, his

daughters, Sapna and Neha, began overseeing the property. When

they attempted to raise fencing, they were threatened by un-

known persons, leading them to inquire at the Sub-Registrar's of-

fice, where they discovered that defendant no.1 had allegedly exe-

cuted a forged power of attorney on 05.11.1997, based on which

a sale deed dated 10.11.1997 was executed, eventually leading to

the sale of the property to defendant no.3 through a sale deed

dated 15.11.2010. The petitioner also filed an application under

Order XXXIX Rule 1 and 2 CPC seeking a temporary injunction to

maintain the status quo over the property. On 20.08.2020, the

trial court granted time to defendants no.1 and 2 to file their reply

to the injunction application while granting an ad-interim injunc-

tion and observed that if defendant No.3 raises construction, same

shall be subject to final order. Aggrieved, the petitioner filed a civil

miscellaneous appeal under Order XLIII Rule 1(r) CPC, contending

[2025:RJ-JD:7643] (3 of 5) [CW-8985/2020]

that after 23 years of no construction on the property, the defen-

dants were now permitted to construct without ascertaining the

property's existing status. The petitioner also submitted a photo-

copy to demonstrate the absence of any boundary wall or fencing

at the site. However, on 02.09.2020, the appellate court dismissed

the appeal, holding that only a final order under Order 39 Rule 1

and 2 CPC was appealable under Order XLIII Rule 1(r) CPC and as

such, the present writ petition has been filed challenging the or-

ders dated 02.09.2020 (Annex.10) passed by the learned District

Judge, Bhilwara, and 20.08.2020 (Annex.7) passed by the learned

trial court.

3. Learned counsel for the petitioner submits that the impugned

order dated 02.09.2020 (Annex.10) has been passed by the

learned Appellate Court in gross violation of Order XLIII Rule 1 of

CPC. He submits that an appeal lies to the impugned order dated

20.08.2020 (Annex.7) by which the ad-interim order was granted

while directing that the respondent Nos.1 & 3 can raise construc-

tion on the suit property. He submits that the petitioner/plaintiff

being aggrieved of the same has preferred an appeal before the

learned Appellate Court and the learned Appellate Court vide order

dated 02.09.2020 (Annex.10) rejected the appeal while holding

that the appeal is not maintainable in light of the provisions and

accordingly the appeal was dismissed.

4. Learned counsel for the respondents is not in a position to

refute that under Order XLIII Rule 1 of CPC, an appeal is main-

tainable against the impugned order dated 20.08.2020 (Annex.7).

[2025:RJ-JD:7643] (4 of 5) [CW-8985/2020]

5. Thus, having heard the learned counsel for the parties, this

Court finds that the impugned order dated 02.09.2020 (Annex.10)

has been passed while not taking into consideration the relevant

provision i.e. Order XLIII Rule 1 of CPC. The relevant provision is

reproduced as under:-

"1. Appeal from orders An appeal shall lie from the following orders under the pro- visions of section 104, namely :--

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(r) an order under rule 1, rule 2 [rule 2A], rule 4 or rule 10 of Order XXXIX;"

6. Learned counsel for the petitioner has also placed reliance

upon the judgment passed Hon'ble Apex Court in A. Venkatasub-

biah Naidu vs S. Chellappan And Ors.: 2007 (7) SCC 695 and the

relevant part is reproduced as under:-

"It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omis- sions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction.

In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In ap- propriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making ad- verse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the pur- poses of the appeal, be deemed to be the final order

[2025:RJ-JD:7643] (5 of 5) [CW-8985/2020]

passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.

Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exer- cise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party af- fected by the interim ex parte order should have been di- rected to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition.

In the light of the direction issued by the High Court that the trial court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accor- dance with law, we may further add that till such orders are passed by the trial court, status-quo as it prevailed im- mediately preceding the institution of the suit would be maintained by the parties.