R.S. Chauhan, J. - (1.) THE petitioner -defendants are aggrieved by the order dated 17.10.2013 passed by the Additional District Judge No. 4, Jaipur Metropolitan, whereby the learned Judge has set aside the order dated 30.4.2011 and has directed the petitioner -defendants and the respondent plaintiff to maintain the status quo.
(2.) THE brief facts of the case are that the respondent -plaintiff filed a suit for permanent injunction against the petitioner -defendants along with an application for temporary injunction under Order 39, Rule 1 and 2 CPC. The petitioner -defendants filed their reply to the temporary injunction application and denied averments made in the plaint. By order dated 30.4.2011, the learned Magistrate allowed the temporary injunction application. Being aggrieved by the order dated 30.4.2011, the petitioner -defendants filed an appeal before the Appellate Court. By order dated 17.10.2012, the Appellate Court party allowed the appeal and set aside the order dated 30.4.2011 and directed to the parties to maintain status quo with regard to the property in dispute. Hence, this petition before this Court. The learned counsel for the petitioners, Mr. Vijay Kumar Sharma, has raised the following contentions before this Court -
(3.) FIRSTLY , without filing an application for specific performance, a suit for injunction is not maintainable. Secondly, since possession is with the petitioners, an injunction could not have been granted in favour of the respondent -plaintiff. Thirdly, while granting an injunction in the respondent -plaintiff, the learned Judge was required to see three factors, namely existence of prima facie case, balance of convenience and irreparable loss. However, the learned Judge has failed to notice the fact that since the possession was with the petitioners, the respondent -plaintiff did not have prima facie case in his favour. Fourthly, status quo order could not have been passed, as the respondent -plaintiff was not in possession of the suit property. To do so has caused irreparable loss to the petitioners, as they are unable to maintain the shop, which is under their possession. Lastly, the petitioners are willing to give an undertaking that in case, they are permitted to repair and maintain the shop, or to raise any further construction, they would demolish the construction, if the respondent were to succeed in the suit filed by him. They would raze the construction without seeking any compensation from the respondent -plaintiff.;