- (1.) THE present petition is directed against the order dated 31.5.08 passed by the Addl. District Judge No. 1, Jaipur City, Jaipur in Civil Misc. Appeal No. 2/08.
(2.) IT has been submitted by the learned counsel for the petitioner (original defendant) that the appeal before the appellate court was not maintainable as the order rejecting the application of the respondents-plaintiffs was passed by the trial court under Section 151 of CODE OF CIVIL PROCEDURE, 1908, against which no appeal could lie under Order XLIII Rule 1 of CODE OF CIVIL PROCEDURE, 1908. He further submitted that the petitioner had not made any encroachment on the disputed premises and no mandatory injunction could be granted by the appellate court against the petitioner. The learned counsel for the petitioner has relied upon the case of Gujarat High Court in case of Zakinabed Ors. Vs. Babubhai Alimohamad Kapadia Ors., AIR 1999, Gujarat, 118 in support of his submission. However, learned counsel for the respondents relying upon the judgment of Apex Court in case of Tanusree Basu Ors. Vs. Ishani Prasad Basu Ors. 2008 (2) Apex Court Judgments, 530 (SC) has submitted that the person if is entitled to prohibitory injunction would also be entitled to the mandatory injunction. According to the learned counsel for the respondents, though the petitioner-defendant was restrained from taking the possession of any part of the disputed premises except the rented premises, the petitioner had made encroachment on the premises which was not the rented premises and, therefore, the said application was filed. He further submitted that even according to the petitioner the said disputed premises was locked by one person named Ramhans as per the reply filed by the petitioner before the appellate court and, therefore, the appellate court has passed the impugned order which does not call for any interference of this court. Having regard to the submissions made by the learned counsels for the parties and to the impugned orders passed by the trial court, it appears that initially the trial court had granted an interim injunction against the present petitioner-original defendant vide order dated 5.6.07 whereby he was restrained from taking the possession of the premises other than the rented premises and was also restrained from causing any interference in the possession of the respondents-plaintiffs of the disputed premises. It appears that thereafter the respondents-plaintiffs had submitted an application under Order 39 Rule 1 read with Section 151 of CODE OF CIVIL PROCEDURE, 1908 seeking mandatory injunction against the petitioner for handing over the possession of the disputed premises. The said application was dismissed by the trial court vide order dated 22.11.07. Being aggrieved by the said order the respondents-plaintiffs had filed an appeal being No. 2/08 before the appellate court, which appeal has been allowed by the appellate court vide impugned order dated 31.5.08. Being aggrieved by the said order, the present petition has been filed. It is pertinent to note that in the reply filed by the present petitioner to the application filed by the respondents, it was stated that the person named Ramhans had put lock on the disputed premises and that he had not taken any possession of the disputed premises. In view of the said contention raised by the petitioner, the appellate court has passed the impugned order directing the petitioner to the effect that if he had taken the possession of the premises other than the rented premises, he should handover the possession of the said disputed premises to the respondents-plaintiffs. When the appellate court has directed to handover the possession of only such premises which was not rented to the petitioner, and if the petitioner had taken over the possession of the premises other than the rented premises, the appellate court was justified and empowered to restore the possession of the said disputed premises to the respondents-plaintiffs. If the petitioner had not taken the possession of the said disputed premises and if according to him some third party named Ramhans had put the lock on the disputed premises, the order passed by the appellate as such would not affect him. There being no illegality or infirmity in the said order passed by the appellate court, this court exercising limited jurisdiction under Article 227 of the Constitution of India is not inclined to interfere with the same. The petition being devoid of merits deserves to be dismissed and is accordingly dismissed. ;