BHAWESH PARMAR Vs. MAHENDRA KUMAR LODHA AND ANR.

JUDGEMENT

(1.) In this writ petition filed under Art. 227 of the Constitution of India, the plaintiff-petitioner has prayed for quashing the orders impugned dt. 03.05.2010 (Annexure-12) and dt. 20.8.2010 (Annexure-13) and further prayed that applications filed by the petitioner for appointment of Commissioner and for directions to the Station House Officer (SHO), Police Station, Amba Mata, Udaipur and Urban, Improvement Trust, Udaipur in contempt proceedings, may be allowed.

(2.) As per facts of the case, the plaintiff-petitioner filed a civil suit along with an application under Order 39 Rule 1 & 2 read with Section 151 CPC for temporary injunction against the respondents. The respondents No. 1 & 2 separately filed their reply to the application for temporary injunction. The learned trial Court appointed Shri Satish Shrimali, Advocate as Commissioner to inspect the site. The Commissioner submitted his report on 06.02.2009 (Annexure-4). Thereafter, the learned trial Court after hearing both the parties granted temporary injunction in favour of the plaintiff-petitioner vide order dt. 03.02.2010 whereby the trial Court restrained the respondent no. 1 from raising any construction upon the land in question of the plaintiff's plot without proper construction permission and leaving set back. As per the plaintiff-petitioner , inspite of the order passed by the trial Court, the respondent No. 1 continued with the construction and disobeyed the order passed by the trial Court on 03.02.2010. Therefore, the plaintiff-petitioner filed an application under Order 39 Rule 2-A read with Section 151 of CPC against the respondents for committing contempt with the prayer for demolishing the construction raised by the respondent No. 1 in the set back area and for sentencing him for violating the injunction order.

(3.) In reply to the application filed under Order 39 Rule 2-A CPC, it is submitted by the respondent No. 1 that he has not raised any construction in violation of the order. But to prove the correct fact, an application was filed by the petitioner for appointment of commissioner on 23.04.2010. The petitioner filed another application under Sec. 151 of CPC in the suit for directing the Station House Officer (SHO), Police Station Amba Mata, Udaipur to restrain the respondent No. 1 from raising any construction in the Eastern and Western set back area and for direction to the respondent No. 2 demolish the construction raised in violation of the injunction order. The respondent No. 1 filed reply to the application filed by the petitioner under Sec. 151 CPC and after hearing both the parties, the learned trial Court vide order dt. 03.05.2010 rejected the application of the petitioner for appointment of Commissioner so also rejected application filed under Sec. 151 CPC for demolishing the construction with police aid vide order dt. 20.08.2010. Hence, this writ petition is filed for quashing both the orders of trial Court.