SUNIL KUMAR Vs. CHHAGAN LAL

JUDGEMENT

(1.) The instant petition for writ is preferred giving challenge to the judgment dated 24.7.2003 passed by the learned District Judge, Sirohi accepting the appeal preferred by the defendantrespondent giving challenge to the order dated 30.4.2003 passed by the Civil Judge (Sr. Div.), Sirohi exercising powers under Order 39 Rule 1 and 2 CPC. By the judgment impugned learned District Judge accepted the appeal in part permitting the defendant to raise the construction at the disputed site subject to the condition that he execute an undertaking to the effect that in the event any order contrary is given by the court he shall remove the construction so raised and no right by such construction shall be created in his favour.

(2.) While giving challenge to the order aforesaid it is contended by the counsel for the petitioner that the trial court dismissed the application in totality but the appellate court without holding that the order passed by the trial court perverse or the trial court travelled beyond the jurisdiction vested with it or failed to exercise the jurisdiction vested with it, interfered with the order and accepted the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure in part. According to counsel for the petitioner the appellate court was having a very little scope to interfere with the order passed by the trial court and a finding should have been given to the effect that the order passed is perverse or the trial court travelled beyond the jurisdiction vested with it or failed to exercise the jurisdiction so vested.

(3.) Learned counsel appearing on behalf of the respondentdefendant has stated that the entire construction on the dispute site has already been made and therefore no useful purpose shall not be served by examining the present writ petition on merits. It is also contended by counsel for the respondent-defendant that the rights of the plaintiff have been adequately protected by the appellate court as an undertaking has been given by the defendant in accordance with the order passed by the appellate court dated 24.7.2003 and the defendant is abide by that.