Rajasthan High Court - Jodhpur
Kushalnath vs Birbalnath (2025:Rj-Jd:15268) on 21 March, 2025
Author: Nupur Bhati
Bench: Nupur Bhati
[2025:RJ-JD:15268]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 19410/2024
1. Kushalnath S/o Lt. Shri Govindnath, aged about 74 years,
Resident of Village- Katariyasar, Tehsil and District
Bikaner (Raj.).
2. Kamunath S/o Lt. Shri Rawatnath, aged about 72 years,
Resident of Village- Katariyasar, Tehsil and District
Bikaner (Raj.).
3. Nanunath S/o Lt. Shri Nanaknath, aged about 63 years,
Resident of Village- Katariyasar, Tehsil and District
Bikaner (Raj.).
----Petitioners
Versus
1. Birbalnath S/o Shri Gopalnath, Pujari of Jasnath Ji
Temple, Resident of Village- Katariyasar, Tehsil and
District Bikaner (Raj.).
2. State of Rajasthan through the District Collector, Bikaner
(Raj.).
3. Tehsildar (Revenue), Bikaner (Raj.).
4. Shri Jasnath Ji Temple Trust, Katariyasar, Bikaner (Raj.).
5. Tikmaram S/o Shri Bhikharam, Resident of Legha Ki
Dhani, Dist.- Barmer (Raj.).
6. Balaram S/o Shri Jivanram, Resident of Baytu, Dist.-
Barmer (Raj.).
7. Lalnath S/o Shri Hukamnath, Resident of Village-
Katariyasar, Tehsil and Dist. Bikaner (Raj.).
8. Kanaram S/o Shri Keshuram, Resident of Aalay, Tehsil and
Dist. Nagaur (Raj.).
9. Jagdishnath S/o Shri Girdharinath, Resident of Jhanjheu,
Tehsil- Shridungargarh, Dist. Bikaner (Raj.).
10. Prahladnath S/o Shri Ramlal, Resident of Sadasar, Tehsil-
Nokha, Dist. Bikaner (Raj.).
11. Jesnath S/o Shri Godhunath, Resident of Village-
Katariyasar, Tehsil and Dist. Bikaner (Raj.) (Deleted Vide
Order Dated 06.04.2024).
12. Keshunath S/o Shri Shernath, Resident of Village-
Katariyasar, Tehsil and Dist. Bikaner (Raj.).
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[2025:RJ-JD:15268] (2 of 5) [CW-19410/2024]
13. Megharam S/o Shri Hemaram, Resident of Village-
Katariyasar, Tehsil and Dist. Bikaner (Raj.).
14. Shravanram S/o Shri Joraram, Resident of Village-
Katariyasar, Tehsil and Dist. Bikaner (Raj.).
15. Shravanram S/o Shri Pemaram, Resident of Village-
Katariyasar, Tehsil and Dist. Bikaner (Raj.).
16. Umaram S/o Shri Rauram, Resident of Village-
Katariyasar, Tehsil and Dist. Bikaner (Raj.).
17. Mohanram S/o Shri Sheraram, Resident of Village-
Katariyasar, Tehsil and Dist. Bikaner (Raj.).
18. Partaram S/o Shri Kojuram, Resident of Village-
Katariyasar, Tehsil and Dist. Bikaner (Raj.).
19. Kisturam S/o Shri Gangaram, Resident of Village-
Katariyasar, Tehsil and Dist. Bikaner (Raj.).
----Respondents
For Petitioner(s) : Mr. C.S. Kotwani and
Mr. Naman Mohnot.
For Respondent(s) : Mr. Hemant Jain.
Ms. Neelam Sharma, AGC.
HON'BLE DR. JUSTICE NUPUR BHATI
Order
21/03/2025
1. The instant writ petition has been filed by the
petitioners/plaintiffs challenging the order dated 08.11.2024
passed by learned Additional District Judge No.2, Bikaner
('Appellate Court') in Civil Misc. Appeal No.07/2022 (CIS
No.41/2022), whereby the appeal filed by the respondents No.1
and 4 /defendants under Order 43 Rule 1 CPC has been allowed
and the order dated 16.03.2022 passed by learned Additional Civil
Judge No.1, Bikaner ('Trial Court') allowing application under
Order 39 Rule 1 & 2 CPC, has been quashed and set aside.
[2025:RJ-JD:15268] (3 of 5) [CW-19410/2024]
2. The petitioners/plaintiffs filed a suit before the learned Trial
Court for permanent and mandatory injunction against the
respondents/defendants with respondent land comprising various
Khasra numbers of Village Katariyasar, the particulars of Khasra
numbers are mentioned in the plaint, and other land situated
surrounding to the temple. Along with the suit, an application
under Order 39 Rule 1 & 2 CPC seeking temporary injunction was
also filed. The respondents/defendants their respective written
statement while denying the facts stated in the plaint.
3. The learned Additional Civil Judge No.1, Bikaner after
hearing the parties and examining the material placed before it
vide order dated 16.03.2022 (Annex.6) allowed the application
preferred by the petitioners/plaintiffs under Order 39 Rule 1 & 2
CPC and restrained the defendants from demolishing, encroaching
or plying their tractor on the cemetery land. The
respondents/defendants were also directed not to interfere in
cremation process conducted by the members of Siddh community
on death of family members and not initiate any construction
activity in north-west side of the cemetery land.
4. Aggrieved by order dated 16.03.2022 (Annex.6), the
respondents No.1 and 4 preferred a misc. appeal before the
appellate court and the learned Appellate Court vide order
impugned dated 08.11.2024 (Annex.7) allowed the appeal filed by
the respondents No.1 and 4/defendants and set aside the order
dated 16.03.2022.
5. Aggrieved by order dated 08.11.2024 (Annex.7) passed by
learned Appellate Court, the petitioners/plaintiffs have preferred
the instant writ petition.
[2025:RJ-JD:15268] (4 of 5) [CW-19410/2024]
6. Learned counsel appearing for the petitioners, at the outset,
submits that learned Appellate Court has seriously erred in
allowing the appeal preferred by the respondents No.1 and 4 and
thereby quashing and set aside the well reasons order passed by
the learned trial court granting temporary injunction in favour of
petitioners. Learned counsel for the petitioners/plaintiffs submits
that the appeal preferred by the respondents No.1 and
4/defendant was barred by limitation and along with the same an
application under Section 5 of the Limitation Act for condoning the
delay was also filed, however, the learned Appellate Court while
passing the order impugned, without condoning the delay
occasioned in filing the appeal, has straightaway allowed the
appeal. Learned counsel for the petitioners further submits that
the learned Trial Court has considered all the three ingredients viz.
prima facie case, balance of convenience and irreparable injury in
favour of petitioners/plaintiffs. In support of his case, learned
counsel for the petitioners relied upon judgment passed by
Hon'ble Apex Court in the case of Ramakant Ambalal Choksi v.
Harish Ambalal Choksi & Ors. : Civil Appeal No.13001 of 2024
(SLP (Civil) No.252/2023) decided on 22.11.2024.
7. On the other hand, learned counsel appearing for the
respondents/defendants opposed the submissions made by
counsel for the petitioners and submitted that there was no prima
facie case, balance of convenience and irreparable injury being
caused to the petitioners.
8. I have considered the submissions made by counsel for the
parties at length and have perused the material available on
record.
[2025:RJ-JD:15268] (5 of 5) [CW-19410/2024]
9. Upon a bare perusal of the order impugned dated
08.11.2024 (Annex.7) passed by learned Appellate Court, this
Court finds that while passing the order impugned, the learned
Appellate Court has not even dealt with the application filed by the
respondents under Section 5 of the Limitation Act and as a matter
of fact, the delay occasioned in filing the appeal has not even been
condoned and the appeal has been allowed by the learned
Appellate Court while setting aside the order passed by the
learned Trial Court granting temporary injunction in favour of
plaintiffs, petitioners herein.
10. In the considered view of this Court, allowing appeal without
first deciding the application under Section 5 of the Limitation Act
cannot be countenanced.
11. Accordingly and in view of above discussion, the writ petition
preferred by the petitioners/plaintiffs is allowed. The order
impugned dated 08.11.2024 (Annex.7) passed by learned
Appellate Court allowing appeal filed by the respondents No.1 and
4/defendants, is quashed and set aside. The matter is remitted
back to the learned Appellate Court without commenting merits of
the appeal, for deciding the appeal afresh with a direction to first
decide the application filed by the respondents/defendants under
Section 5 of the Limitation Act within a period of twenty days from
today. Until decision of the said application of the respondents
No.1 and 4/defendants, the parties are directed to maintain status
quo with land in question. No costs.
(DR. NUPUR BHATI),J
242-DJ/-
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