BHAGWAN SINGH Vs. GHANSHYAM

JUDGEMENT

(1.) The present writ petition has been filed by the petitioner-defendant challenging the order dated 26.4.13 passed by the Civil Judge (JD) & Judicial Magistrate, First Class, Rajgarh (hereinafter referred to as 'the trial court') in Civil Suit NO. 21/12, whereby the trial court has allowed the application filed by the respondent No.1-plaintiff under Section 151 of CPC and directed the petitioner to close the Mori, Bari and Gate put up by him on the western side of his property and further restrained him from using the said gate and also from putting up any construction without the permission of the court.

(2.) In the instant case it appears that the respondent-plaintiff has filed the suit seeking permanent injunction against the petitioner-defendant, in which he had also filed application seeking temporary injunction on 20.7.12. The trial court on 20.7.12 had appointed the Commissioner while issuing notice to the petitioner-defendant. The Commissioner visited the site on 20.7.12 and prepared the report obtaining the signatures of the parties. The said report was submitted on 24.7.12 by the Commissioner before the trial court and the trial court directed the petitioner-defendant to maintain the status-quo as per the Commissioner's report, vide the order dated 24.7.12. It further appears that the petitioner-defendant submitted an application before the trial court stating interalia that he had carried out the construction of Mori, Bari and Gate in between the period 20.7.12 and 24.7.12 and, therefore, the said order was required to be modified. It further appears that the respondent-plaintiff also submitted the application under Section 151 of CPC praying for removal of additional construction put up by the petitioner-defendant and seeking direction to maintain status-quo as earlier directed by the court. The trial court after hearing the learned counsels for the parties passed the impugned order which is under challenge.

(3.) It is sought to be submitted by the learned counsel Mr. J.P. Gupta for the petitioner that the respondent-plaintiff has already filed an application under Order XXXIX Rule 2(a) of CPC which is pending for the disposal and had also filed the application under Section 151 of CPC praying for the removal of the construction, though there was no ex-parte interim order in between the period 20.7.12 to 24.7.12. According to him the order of the trial court being ex-facie illegal and perverse deserves to be set aside.