WPMS/1890/2021
2021 Latest Caselaw 3645 UK

IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL
     ON THE 16TH DAY OF SEPTEMBER, 2021
                          BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


     WRIT PETITION (M/S) No. 1890 of 2021

BETWEEN:

Kavita Grover.                            ..........Petitioner
     (By Mr. M.S. Tyagi, Senior Advocate, assisted by Ms.
     Menka Tripathi, Advocate)

AND:
Sri Godhan Singh Rawat & another.         ...Respondents
     (Mr. H.C. Pathak and Mr. B.D. Pande, Advocates for
     respondent no. 1)


                         JUDGMENT

Petitioner has filed a suit for permanent injunction, which is pending before learned Civil Judge (Senior Division), Nainital. Alongwith her suit, petitioner had filed a temporary injunction application. Learned trial Court vide order dated 20.11.2020 had issued notice on petitioner's temporary injunction application fixing 16.12.2020. Against the said order, petitioner filed a Revision, which has now been dismissed vide order dated 28.07.2021. Challenging these two orders, petitioner has filed this writ petition.

2. Learned Senior Advocate for the petitioner submits that, in the event defendant is not restrained from encroaching upon the passage leading to the

property of the petitioner, petitioner would suffer irreparably and learned Courts below erred in not granting ex-parte temporary injunction in favour of the petitioner.

3. Per Contra, learned counsel for the respondent no. 1 submits that respondent is not encroaching upon any part of the said passage. He has produced in the Court today a show cause notice issued by Secretary, District Level Development Authority, Nainital, which indicates that without approval of layout plan, petitioner is constructing 5 mtrs. wide passage towards her property. He further submits that, in the demarcation made by the Assistant Collector with the consent of both the parties, it was found that the land of the petitioner is short by nearly about 70 sq. feet.

4. Without expressing any opinion on the rival contentions of the parties, this Court thinks that ends of justice would be met if learned trial Court is directed to decide the temporary injunction application as well as the application filed by the petitioner under Order 26 Rule 9 C.P.C. at the earliest.

5. Accordingly, the writ petition is disposed of with a direction to learned trial Court to decide the temporary injunction application as well as the application filed by the petitioner under Order 26 Rule 9 C.P.C. as early as possible; but, not later than four weeks' from today.

6. Learned counsel for the respondent no. 1 has apprised the Court that respondent no. 1 has filed objection to the application filed by the petitioner.

7. For a period of four weeks or till disposal of petitioner's temporary injunction application, whichever is earlier, status quo, qua the passage in question, shall be maintained by the parties.

8. Let a certified copy of this order be issued within 24 hours.

(MANOJ KUMAR TIWARI, J.) Arpan