Alok Sharma, J. - (1.) The plaintiffs-respondents (hereafter 'the plaintiffs) filed a suit for mandatory and permanent injunction, wherein in the application under Order 39, Rule 1 and 2 CPC on the basis of the Commissioner report, the trial court vide order dated 5.11.2014 granted temporary injunction in plaintiffs' favour and restrained the defendants-petitioners (hereafter 'the defendants') from throwing garbage, cow dung etc. on the 3 foot lane in question or create hindrance in passing therefrom. The defendants however in defiance of the restraint continued to throw garbage and cow dung etc. and obstruct passage. In the circumstance, the plaintiffs filed as advised an application under Order 39, Rule 1 and 2 r/w section 151 CPC praying for interim relief in mandatory form directing the cleaning of the obstruction on the 3 ft. lane. That was however dismissed by the trial court vide order dated 10.2.2015. There against the civil miscellaneous appeal filed by the plaintiffs was allowed by the appellate court under its order dated 10.8.2018 and the defendants directed to remove the obstruction caused by them on the 3 foot lane by throwing cow-dung, waste etc. within seven days from the date of the court's order.
(2.) This petition has now been filed by the defendants challenging the order dated 10.8.2018 passed by the appellate court.
(3.) Counsel for the defendants contended that second application under Order 39, Rule 1 and 2 CPC was not maintainable and the trial court so having rightly held, the appellate court acted perversely in setting aside its order and substituting its discretion for that of the trial court without lawful cause.;