UNITA SAINI Vs. AVATAR KANWAR

JUDGEMENT

(1.) This Civil Writ Petition filed by the petitioner under Article 227 of the Constitution of India against the impugned order dtd. 6/4/2021 passed Additional District Judge No.3, Jaipur Metropolitan Ist in Civil Misc. Appeal No.16/2020 reversing the order dtd. 31/10/2020 passed by Additional Civil Judge and Metropolitan Magistrate No.9, Jaipur Metropolitan Ist in temporary injunction application by which learned court below allowed the application for temporary injunction.

(2.) Learned counsel for the petitioner submits that petitioner had filed a suit for permanent injunction against the respondent Nos.1 and 2 and also filed the application for temporary injunction. Learned counsel for the petitioner also submits that trial court vide order dtd. 31/10/2020 allowed the application for temporary injunction filed by the petitioner. After that, respondent No.1 had filed an appeal but appellate court vide order dtd. 6/4/2021 set aside the order of the trial court. Learned counsel for the petitioner also submits that it is an admitted position that respondent No.1 was doing construction without attaining the permission from respondent No.2. Learned counsel for the petitioner also submits that respondent No.2 had also issued the notice for illegal construction to respondent No.1. Learned counsel for the petitioner also submits that order of learned appellate court is perverse and learned appellate court reverse the order of the trial court without appreciating the factual aspect of the case. Learned counsel for the petitioner also submits that learned appellate court should not interfere in discretion exercise by the learned appellate court unless such discretion was found to be palpably incorrect or untenable. Learned counsel for the petitioner also submits that learned appellate court also fails to consider the protection of easement rights to the petitioner because respondent No.1 was doing construction without permission and in violation of local laws. Learned counsel for the petitioner also submits that learned appellate court had not given any reason for disbelieving the notice issued by respondent No.2 to respondent No.1. Learned appellate court merely disbelieved notice on the ground that illegal construction was less than the measurement provided in the sale deed. Learned counsel for the petitioner also submits that if temporary injunction was not allowed in favour of the petitioner then it would create multiplicity of the proceeding and complicity. So, order of learned appellate court be set aside and order of the trial court be restored.

(3.) Learned counsel for the petitioner has placed reliance upon the following judgments : (1) Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass reported in (2004) 8 SCC 488; (2) Mohd. Mehtab Khan and Ors. v. Khushnuma Ibrahim Khan and Ors. reported in (2013) 9 SCC 221 and (3) Wander Ltd. and Anr. v. Antox India P. Ltd. reported in 1990 Supp. SCC 727.