MANJU SAHARAN Vs. OM PRAKASH BAIRWA

JUDGEMENT

(1.) The petitioner is aggrieved by the order dated 10.3.2014 passed by the Additional District Judge No.17, Jaipur Metropolitan, whereby the learned Judge has allowed the appeal filed by the respondent-defendant and has set aside the temporary injunction order dated 18.4.2013 passed by the Civil Judge (J.D.), West, Jaipur Metropolitan.

(2.) The brief facts of the case are that petitioner-plaintiff filed a suit for mandatory and permanent injunction against the respondent-defendant stating therein that the respondent-defendant was raising construction in violation of the JDA Bye-Laws and without leaving the necessary set back. The respondent-defendant filed his written statement and denied the averments made in the plaint. After hearing both the parties on the application for temporary injunction, by order dated 18.4.2013, the learned Magistrate directed the respondent-defendant to raise construction only in terms of the Regulations of 2010 by leaving set back area, and not to raise any construction without the leaving set back till final judgment of the suit. Being aggrieved of the said order, the respondent-defendant filed an appeal before the learned Judge. By order dated 10.3.2014, the learned Judge allowed the said appeal and quashed and set aside the order dated 18.4.2013. Hence, this petition before this Court.

(3.) Mr. R.P. Singh, the learned Senior Counsel for the petitioner, has contended that the learned Judge ought to have merely seen the three factors, which are relevant for granting a temporary injunction, namely existence of prima facie case, balance of convenience and irreparable loss caused to the plaintiff. Instead of doing this, the learned Judge has considered other factors such as whether the plaintiff himself has left a set back or not Whether the plaintiff has come to the court with clean hands And whether the JDA had taken any action on the complaint filed by the plaintiff or not According to the learned counsel, these factors are immaterial for the decision of the application for temporary injunction. Secondly, even if the plaintiff has allegedly not left any set back or has constructed his house contrary to Building Bye-laws, it would not entitle the respondent to raise his construction in violation of law. Therefore, the impugned order deserves to be set aside.