RAM Vs. KAHRI

JUDGEMENT

(1.) In the instant writ application, the petitioners/defendants have challenged the legality and validity of the order dated 4th December, 1996 passed by the learned trial Court on an Application No. 27/1995 seeking mandatory interim Temporary Injunction and order dated 17th March, 2012 passed by the appellate Court on and an appeal preferred against the order dated 4th December, 1996. Briefly, the essential material facts necessary for adjudication of the controversy raised are, that the petitioners/plaintiffs instituted a civil suit in representative capacity on 25th July, 1995 for declaration and Permanent Injunction claiming right of way on the property in dispute. The application for mandatory interim Temporary Injunction was responded by the respondents/defendants. On 29th July, 1995, the learned trial Court appointed Court Commissioner to inspect the site and submit a report. It is also urged that on an inspection of the site made earlier in the year 1993, the entire way was shown to be open without any obstruction.

(2.) The learned trial Court taking into consideration the pleaded facts and after hearing the counsel for the parties declined the prayer for mandatory interim Temporary Injunction, however, issued an injunction to maintain status quo, in accordance with the status as per the report of the Court Commissioner dated 29.7.1995. The petitioners-plaintiffs assailed the impugned order dated 4.12.1996 before the appellate Court, as is evident from the order dated 18.5.2001; which was subjected to further challenge by way of a writ application before this Court and in consequence, the matter was remanded for decision afresh, setting aside the order dated 18.5.2001, by this Court on 12.12.2003. The learned appellate Court on a re-consideration of the matter passed the impugned order dated 17.3.2012, upholding the order dated 4.12.1996 passed by the learned trial Court, which is again under challenge in the instant writ application.

(3.) The counsel for the petitioners/plaintiffs reiterating the pleaded facts argued that the learned trial Court and the appellate Court, committed apparent illegality on the face of record in not taking into consideration the provisions of Section 91 and Order 39 Rules 1 and 2 CPC, for grant of mandatory interim Temporary Injunction. Moreover, the dispute relates to right of public way, but the Courts below by misreading and misconstruing the report of the Court Commissioner dated 29th July, 1995; fell in gross error of law and fact, while declining the relief of mandatory interim Temporary Injunction. The learned counsel urged that the learned Courts below have erred in not appreciating the prima facie case in favour of the petitioners as well as the irreparable loss, and balance of convenience which is heavily loaded in favour of the petitioners.