PURSHOTTAM Vs. PISTA DEVI

JUDGEMENT

(1.) This civil revision petition under section 115 CPC is directed against the order dated 27.2.2003 passed by the learned Civil Judge (SD) Nawalgarh District Jhunjhunu in Civil Misc. Case No. 66/2001 whereby the application of petitioner filed u/O. 11 Rr. 12 and 14 CPC has been dismissed.

(2.) Briefly stated the relevant facts are that petitioner filed a suit for permanent injunction along with an application for temporary injunction initially against non-petitioners-defendants Nos. 1 and 2 but thereafter impleaded Municipal Board, Mukandgarh also as defendant No. 3. It was averred in the plaint as well as in the application that there is a public way 15 ft. wide which is being used by the parties, but defendants without any lawful authority has made constructions to the extent of 3? ft. and are adamant to make further constructions thereon. The local authority on being approached by petitioner has not taken any action. In the aforesaid suit an application u/0.11 Rr. 12 and 14 CPC was filed by petitioner on 10.12.2002 stating therein that the Municipal Board, Mukandgarh had issued a notice to non- petitioners Nos. 1 and 2 on 31.5.2002 and 16.10.2002 with regard to the aforesaid encroachment, but in its reply filed in the suit and the application Municipal Board, Mukandgarh stated that non-petitioners Nos. 1 and 2 had not made any encroachment. It was, therefore, prayed that the aforesaid notices dated 31.5.2002 and 16.10.2002 be discovered from defendant No. 3. In its reply to the aforesaid application, defendant No. 3 admitted that the aforesaid notices were given to defendant Nos. 1 and 2 but submitted that the aforesaid notices were not with regard to any encroachment and these notices are not relevant to the suit. It was also stated in the reply that defendant No. 1 had moved an application on 5.9.2002 seeking permission for construction enclosing a blue print therewith and after examining the matter and after getting necessary fee deposited permission was granted, whereupon petitioner moved another application on 13.1.2003 praying that application, blue print map, notices and receipt for the deposit of fee may also be directed to be produced before the Court. But the learned Court below has after hearing the parties on the aforesaid application, rejected the application vide impugned order.

(3.) It has been contended by the learned counsel for petitioner that the aforesaid order is legally unsustainable being contrary to the provisions of law which if allowed to stand will occasion failure of justice and would cause irreparable loss to him. But the learned Court below has observed in its impugned order that the documents sought to be discovered and produced have no relevance to the subject-matter of the suit and apart from this learned counsel for petitioner could not show as to how the impugned order if it had been passed in favour of petitioner could have finally disposed of the suit or proceeding and how the learned Court below has committed any jurisdictional error in passing the impugned order. So in view of the amended proviso to sub-section (1) of Section 115 CPC as interpreted in Phool Singh v. Mavla @ Bhavaliya and Ors., reported in AIR 2002 MP 246, K.R. Subbaraju v. M/s. Vasavi Trading Co. and Ors., reported in AIR 2002 Karnataka 407 and in Prem Bakshi and Ors. v. Dharam Dev and Ors., reported in AIR 2002 SC 559, this Court is precluded from varying or reversing the impugned order unless it has the effect of disposing of the suit or proceeding finally, if. it had been passed in favour of petitioner.