- (1.) This writ petition has been filed by the defendant Sher Singh being aggrieved of the order dated 31/5/2011 passed by the Addl. District Judge (Fast Track No.3), Jodhpur dismissing his appeal against the order dated 8/12/2010, whereby, the application of the defendant under Order 39 Rule 2-A read with Section 151 CPC was rejected by the learned trial court.
(2.) The circumstances giving rise to present writ petition in nutshell are that a suit for injunction was filed on 24/11/1990 by the plaintiff respondent Ashok Kumar against the present petitioner Sher Singh in which it was inter alia claimed that plot no.94-A in which he is living in a two storied house and when he started construction of staircase for first floor, the defendant interfered with the same and, therefore, plaintiff approached the Court with a case that he had applied for permission to raise said construction before the Municipal Authorities and defendant had no right to interfere with the same. On 5/8/1999, the learned trial court granted temporary injunction in favour of the plaintiff to the effect that the defendant Sher Singh will not interfere with the construction being raised by the plaintiff till it is completed and at the same time plaintiff was also directed to furnish an undertaking within 15 days that if he fails in the suit, he would remove the said disputed construction at his own cost. In an appeal filed by the defendant against the said order dated 5/8/1999, the appellate court vide order dated17/9/1999 modified the said temporary injunction while partly accepting the appeal of the defendant and directed for status quo to be be maintained by the parties. It was also observed in the order dated 17/9/1999 that since the plaintiff had already given an undertaking before the learned trial court that in case he fails in the main suit, he would remove the disputed construction of staircase, namely, two stairs and one platform ('Runa') at his own cost. It appears from the order sheet dated 26/7/2000 of the court below that on an application filed before the learned trial court on 26/7/2000 itself, duly signed by the plaintiff, his counsel Shri Abdul Sattar and one Shri Shri Hari Shanker Shrimali, junior counsel of Shri Bheem Kant Vyas, Advocate as counsel for the defendant, the learned trial court, upon a compromise between the parties dismissed the suit itself as withdrawn (Page 47 of the paper book). It is also recorded in the order sheet that counsels of both the sides have produced a compromise in the spirit of 'Lok Adalat', which was verified and accordingly the suit is dismissed as withdrawn. After 26/7/2000, an application was filed by the defendant through his advocate Mr. Bheem Kant Vyas on 18/8/2000, within one month of the previous order dated 26/7/2000 by which the suit was dismissed as withdrawn in view of compromise between the parties, claiming compliance of the undertaking furnished by the plaintiff in terms of order dated 5/8/1999 on the temporary injunction application that since suit has been dismissed, the plaintiff should remove the disputed construction within fifteen days of 26/7/2000. The said application was accepted by the learned trial court vide order dated 26/5/2001 (Annex.6) and plaintiff was asked to remove the disputed construction of two stairs and platform to the aforesaid extent in terms of undertaking dated 6/8/1999. Since the same was not done, the defendant Sher Singh moved an application under Order 39 Rule 2-A CPC vide Annex.7, which was replied to by the plaintiff and after hearing both sides counsels, the learned trial court dismissed the said application by order dated 8/12/2010 inter alia holding that the applicant defendant Sher Singh had failed to prove that said disputed construction had been raised by the plaintiff after furnishing the said undertaking in the learned trial court on 6/8/1999. The learned trial court also held that no evidence to this effect was produced by the defendant nor any independent witness was produced before the learned trial court. The further appeal filed against the said order dated 8/12/2010 came to be dismissed by the learned appellate court on 31/5/2011 reiterating the same grounds as given by the learned trial court, which order is impugned in the present writ petition.
(3.) I have heard the learned counsel for the petitioner defendant, Mr. Suresh Shrimali at length and perused the record.;