- (1.) THE present petition has been filed by the petitioner-plaintiff challenging the order dated 29.1.2008, passed by the Additional District Judge Kishangarh Bas,district Alwar (hereinafter referred to as "the appellate court "), in the Appeal being No. 5/08, as also the order dated 22.1.2008 passed by Civil Judge(Jr. Div.), Kishangarhbas (hereinafter referred to as "the trial court "), in Civil Misc. Application NO. 5/08, rejecting the application of the petitioner for temporary injunction.
(2.) IN the instant case, it appears that the petitioner-plaintiff has filed the suit before the trial court for permanent injunction restraining the respondents nos.3 to 9 (original defendants) in- respect of his property situated at village Slakhar, Tehsil Kotkasim. It has been alleged in the plaint interalia that the property of the defendants was situated on the northern side of the plaintiff's property after leaving a nine feet wide lane, which was commonly used by the parties and that there was a boundary wall with a gate opening on the said lane, on the northern side of the plaintiff's property. It has been further alleged that the defendants were trying to remove the said wall and close the said gate of the plaintiff, and hence the suit for permanent injunction was filed for restraining the respondents-defendants from removing the said wall or closing the said gate and from creating any way through the plaintiff's property, and also from causing any obstruction to the plaintiff in using the said common lane on the northern side of his property. The said suit has been resisted by the respondents-defendants by filing the written statement denying the allegations and averments made in the plaint, and further contending interalia that there was a 12 feet wide lane on the northern side of the plaintiff's property and that the plaintiff had made encroachment on the 3 feet of the said lane and also on the 6 feet of the land situated on the eastern side of his property. The respondents have also made a counter claim for the removal of such alleged encroachments made by the plaintiff,and prayed for the dismissal of the suit. - It further appears that the petitioner-plaintiff had also filed an application seeking temporary injunction of the similar nature under Or.XXXIX Rule 1 and 2 of C.P.C. which was rejected by the trial court vide the order dated 22.1.08. Being aggrieved by the same, the petitioner had preferred an appeal being No.5/08, before the Appellate Court under Or. XLIII rule 1(r) C.P.C. The notice in the said Appeal was made returnable on 29.1.08, by the Appellate Court and on returnable date it passed the following order:- ...[VERNACULAR TEXT OMITTED]... " Being aggrieved by the said order, the petitioner has preferred the present petition invoking the extra ordinary jurisdiction of this Court under Art. 226/227 of the Constitution of India. This Court, while issuing the notice to the respondents on 5.2.2008, had directed the parties to maintain status quo with regard to the disputed way as it existed on that day. The learned counsel Mr. Tantia, for the petitioner-plaintiff vehemently submitted that the appellate court had committed gross illegality in passing the impugned order, exceeding his jurisdiction by directing the S.H.O. to create a 12 ft. wide road for the respondents-defendants, and that too when the learned counsel for the respondents had sought time to file reply in the Appeal filed by the petitioner. He further submitted that the appeal was filed by the petitioner u/Or. XLIII of C.P.C. against the order passed by the trial court rejecting the T.I. Application of the petitioner, and the appellate court passed the impugned order in favour of the respondents without there being any application or cross appeal filed by the respondents. According to him, at the most, the appellate court could have refused to grant any ad interim relief in favour of the petitioner, but under no circumstances could have granted mandatory injunction in favour of the respondents directing the S.H.O. to create 12 ft. wide road for the respondents. However,the learned counsel Mr. K.S. Loha for the respondents, supporting the impugned order passed by the appellate court submitted that some criminal proceedings under Section 133 of Cr.P.C. were pending before the criminal court and hence the appellate court had passed such order. - At the outset, this Court is constrained to observe that the impugned order passed by the appellate court is the glaring example of the arbitrary and illegal exercise of powers at the instance of the appellate court. The appellate court while passing the impugned order has not only contravened the express provisions of law contained in the C.P.C. but has granted the relief in favour of the respondents without there being any application or appeal filed by them, and directed the Police Officer of the concerned Police Station to create a 12ft. Wide road for the respondent Maher Chand and report to the Court, as if the appellate court was functioning as the Criminal Court exercising powers under the Criminal Procedure Code. Such an illegal action and approach on the part of the appellate court not only deserves to be strongly deprecated but deserves to be seriously viewed. From the submissions made by the learned counsels for the parties and from the documents annexed to the petition, it clearly appears that the appeal was filed by the petitioner-plaintiff under Or. XLIII of C.P.C. against the order passed by the trial court rejecting his application for temporary injunction filed under Or. XXXIX of C.P.C. It also appears from the copy of order sheet that in the appeal notices were issued to the respondents making it returnable on 29.1.08. It is also pertinent to note that there was no application filed by the respondents either before the trial court or before the Appellate Court seeking any injunction much less mandatory injunction against the petitioner in respect of the disputed land. Now, as transpiring from the impugned order itself, on 29.1.09, the learned counsel for the respondents appeared and sought time to file the reply, which was granted up to 15.2.08. However, simultaneously the appellate court passed the order directing the S.H.O. Police Station Kherthal to visit the site and make 12 feet wide road for approaching the house of the respondent Maher Chand, and then report to the court. This Court fails to understand as to how a Police Officer could be directed to make a road in a civil proceedings and that too without assigning any reason and without affording any opportunity of hearing to the petitioner, and again without any application being filed by the respondents seeking such a mandatory injunction, in the Appeal filed by the petitioner. It cannot be gainsaid that Civil Courts could grant only such reliefs to the parties in the suit, as are specifically asked for and incidental thereto as contemplated in O. VII R.7, and grant only such kind of temporary injunctions as are contemplated in O. XXXIX of C.P.C. In the instant case, the appellate court appears to have totally lost sight of the fact that it was exercising the jurisdiction of Civil Court under C.P.C. and not of Criminal Court under Cr.P.C. Even if it is assumed that the respondents had made their counter claim in the written statement for the removal of alleged encroachment made by the petitioner on the disputed land then also, the appellate court could not, by any stretch of imagination, have directed the S.H.O. of the concerned Police Station to make the road for the respondents, without any prayer being made by the respondents by filing any application, appeal or cross-appeal, and that too without affording the opportunity of hearing to the petitioner and without assigning any reason in the impugned order. - It is difficult to make out as to whether the appellate court was completely ignorant about the legal position or was over zealous to favour the respondent Maher Chand, however, the impugned order passed by the appellate court being exfacie arbitrary, illegal and without jurisdiction, could not be allowed to stand any further, and therefore the same is quashed and set-aside. In that view of the matter, the appellate court is directed to decide the Appeal pending before it on merits and in accordance with law, and pending the Appeal both the parties are directed to maintain status quo, as was directed by this Court on 5.2.08 while issuing the notice to the respondents. The petition stands allowed accordingly. ;