ASHA MANWANI Vs. PAWAN KUMAR

JUDGEMENT

(1.) The present writ petition has been filed under Article 227 of the Constitution of India with the following prayers :-

(2.) Brief facts of the case are that the suit for permanent injunction, damages and mandatory injunction was filed by the petitioner/plaintiff before the learned Additional Chief Judicial Magistrate No.2, Jodhpur Metropolitan being Suit No.213/2023 stating therein that she is in possession of the property situated at Second B Road, Sardarpura, Jodhpur House No.160. It was further stated that the respondents No.1 and 3 (defendants) are bent upon to cause damage to the plaintiff's property by raising illegal wall and are doing commercial activities on their property which is adjacent to the plaintiff's property. Along with the suit, the petitioner also filed application for temporary injunction under Order 39 Rule 1 and 2 read with Sec. 151 CPC. Notices were issued to the respondents and written statement was filed on behalf of the respondents while denying the averments made in the application. After completion of the pleading of the parties, the application for temporary injunction was rejected by the trial court vide order dtd. 19/9/2023 (Annexure-3). After rejection of the application preferred by the petitioner, an appeal was preferred before the learned Additional District Judge No.3, Jodhpur Metropolitan, but the same was also rejected vide order dtd. 8/8/2024 (Annexure-4). Aggrieved by the orders dtd. 19/9/2023 (Annexure-3) and 8/8/2024 (Annexure-4), the petitioner preferred the instant writ petition.

(3.) Learned counsel for the petitioner submits that the learned Trial Court has erred in rejecting the application filed by the petitioner under Order 39 Rule 1 and 2 CPC wherein a prayer was made to restrain the respondent from raising illegal construction upon the land of the petitioner and also restrain them from raising any commercial construction as well as commercial activity on the construction raised by them. He further submits that the petitioner has specifically stated that the respondents have raised wall on the land belonging to the petitioner as they have encroached about 9 inches to one feet on the land of the petitioner from the south side of the house. He also submits that as the nature of the land is not reflected as commercial, therefore, the respondents ought not to run commercial activities on the said land.