SANJEET SINGH Vs. KAMLESH SINGH

JUDGEMENT

(1.) Respondent No.1 herein is the plaintiff before the trial Court. He instituted a civil suit for declaration and permanent injunction claiming that he has easementary right of access / way over the 180 ft. wide road from the house of defendant No.1 / petitioner herein, therefore he has acquired easementary right and defendant No.1 be restrained from interfering in his possession and he be restrained from closing the suit way. The plaintiff also filed an application under Order 39 Rules 1 and 2 of the CPC along with an application under Order 39 Rule 3 of the CPC. The trial Court considered the application under Order 39 Rule 3 of the CPC on 20/6/2014 without issuing and serving notice to defendant No.1 and granted ex parte temporary injunction restraining defendant No.1 till the date of his appearance that he should not make any construction on the suit way till his appearance. Defendant No.1 appeared before the trial Court on 1/7/2014 and filed reply to the application under Order 39 Rules 1 and 2 of the CPC, but the trial Court did not consider the application under Order 39 Rules 1 and 2 of the CPC on that day and on that day itself, the plaintiff filed an application for mandatory injunction in temporary form stating inter alia that the suit way has already been closed by defendant No.1 therefore, defendant No.1 be directed by mandatory injunction in temporary form to remove the construction / wall and to make available the right of access / way to the plaintiff. The trial Court by its order dtd. 30/1/2015, rejected the application for mandatory injunction in temporary form finding no merit in the said application.

(2.) Feeling aggrieved against the said order, the plaintiff preferred a miscellaneous appeal under Order 43 Rule 1(r) of the CPC before the first appellate Court and the said Court by its impugned order dtd. 28/4/2015, set aside the order rejecting the application for mandatory injunction in temporary form and remanded the matter to the trial Court to get the suit way inspected through a revenue officer and thereafter to decide the application dtd. 1/7/2014 afresh. It is pertinent to mention that in the meanwhile, the application under Order 39 Rules 1 and 2 of the CPC was withdrawn by the plaintiff on 2/1/2015 which remained pending since the date of institution of suit.

(3.) Defendant No.1 has preferred this petition under Article 227 of the Constitution of India against the order dtd. 28/4/2015 by which the appellate Court has set aside the order passed by the trial Court dtd. 30/1/2015 refusing to grant mandatory injunction in temporary form stating inter alia that such an order suffers from illegality and material irregularity, as the order dtd. 20/6/2014 was passed in exercise of jurisdiction conferred under Order 39 Rule 3 of the CPC and defendant No.1 had appeared on 1/7/2014 and life of the said order expired on the date of appearance of defendant No.1 i.e. on 1- 7-2014 and, therefore, a fresh application for mandatory injunction in temporary form was not maintainable before the trial Court, as the application for temporary injunction filed under Order 39 Rules 1 and 2 of the CPC has already been withdrawn by the plaintiff. If the order dtd. 20/6/2014 has been violated by defendant No.1, remedy for the plaintiff was to file application under Order 39 Rule 2-A of the CPC. Even otherwise, on merits, this order cannot be maintained as the appellate Court could not have remanded the matter in exercise of its limited jurisdiction under Order 43 Rule 1(r) of the CPC. Therefore, the impugned order be set aside.