Bela M. Trivedi, J. - (1.) WITH the consent of the learned counsels for the parties the appeal is being decided finally at the admission stage. The present appeal has been filed under Order XLIII Rule 1 of CPC challenging the order dated 28.07.2011 passed by the Additional District & Sessions Judge No. 4, Jaipur City, Jaipur (hereinafter referred to as "the trial court") in T.I. Application No. 30/2011, whereby the trial court has dismissed the said application seeking temporary injunction filed under Order XXXIX Rule 1 & 2 of CPC.
(2.) THE appellant -plaintiff has filed the suit against the respondents -defendants seeking permanent injunction and also the possession of the disputed part of khasra No. 172/332. Pending the said suit, the appellants had filed the application seeking temporary injunction, which has been dismissed by the trial court on the ground that the appellant -plaintiff had failed to prove any prima facie case in his favour and the balance of convenience was also not in favour of the appellant -plaintiff. It is submitted by the learned counsel Mr. R.B. Mathur for the appellant that the khasra No. 172/332 and No. 185 were in the names of the appellant and his uncle Gulu Meena, and that they had not sold the said disputed plot No. 172/332 to anybody. He further submitted that the J.D.A. Tribunal had passed the order dated 15.02.2005 in reference No. 223/04, restraining the JDA from allotting the disputed khasra No. 172/332 to anybody till the review petition of the proceedings under Section 90 -B of the Land Revenue Act was decided by the concerned authority. According to him, the respondents -defendants were raising the illegal construction on the said disputed land, and hence the suit was filed. He further submitted that the respondents could not be permitted to raise any further construction or create any third party interest pending the suit, which would otherwise create multiplicity of proceedings. However, learned counsel Mr. R.K. Daga for the respondents submitted that the suit of the appellant -plaintiff was not maintainable as the appellant had not impleaded the concerned societies i.e. the Hathroi Gari and Chatrapati Shivaji Grih Nirman Sahakari Samiti as the party defendants in the suit, through whom the respondents were put in possession of the property in question. He further submitted that the respondents have spent huge amount for putting up construction of four storied building, which is on the verge of completion and that they are ready to give an undertaking as may be directed by the court.
(3.) HAVING regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the learned trial court, it appears that there are very contentious and triable issues involved in the suit which are required to be decided by the trial court after both the parties lead their respective evidence. Be that as it may, without expressing any opinion on the merits of the case, since the construction on the disputed land is on the verge of the completion, the interest of Justice would be met if the respondents are permitted to complete the construction subject to the filing of the undertaking as stated by the learned counsel for the respondents. In view of the above, the impugned order passed by the trial court is modified to the effect that the respondents -defendants are permitted to complete the construction on the suit plot, on submitting the undertaking on oath before the trial court within a period of 15 days from today that they shall remove the construction on the disputed plot at their own cost and risk if the appellant -plaintiff ultimately succeeds in the suit and that they shall not transfer or alienate or create any third party interest in the said constructed property on the suit land, during the pendency of the suit. The trial court is also directed to decide the suit as expeditiously as possible. The appeal stands partly allowed accordingly. The office is directed to send back the record of the case to the trial court forthwith.;