Santosh Boobna @APPELLANT@Hash Ramavtar Kandoi

Under challenge by the petitioner-defendant (hereafter `the defendant') is the order dated 11-9-2017 passed by the District Judge Jhunjhunu (hereafter

`the Appellate court') in Civil Miscellaneous Appeal No.34/2017, upsetting and setting aside the order dated 20-5-2017 passed by Senior Civil Judge

Nawalgarh, Jhunjhunu (hereafter `the trial court') in case No.51/2013, dismissing the application under Order 39 Rules 1&2 CPC for temporary

injunction filed by respondents-plaintiffs (hereafter `the plaintiffs') and instead restraining the defendant from raising any construction for the purpose

of commercial use in the west side of the suit property i.e. haveli of Boobna as also from opening any access from the shop constructed to a common

“chowkâ€​.

The facts of the case are that the plaintiff filed a civil suit for mandatory, permanent injunction and cancellation of sale-deed dated 11-5-

2011â€"where the petitioner-defendant (hereafter `the defendant') was the vendeeâ€"to the extent of land measuring 10.6 X 25 (hereafter `suit land')

and for cancellation of the permission granted therefor by the local competent authority to raise commercial construction thereon. Also sought as a

necessary corollary was cancellation of the conversion order changing the land use of the suit land from residential to commercial. Along with the suit

an application for temporary injunction under Order 39 Rules 1&2 CPC was also filed.

The case of the plaintiff was that there were four pre-existing buildings (haveli) with a common “chowk†for residential use onlyâ€"the defendant

was owner of one. The “chowk†adjacent to each constituted private property for use only of the residents of the four “havelisâ€. It was

stated that the defendant, admittedly the owner of one of the four havelis made commercial constructions including of a shop opening in the common

“chowkâ€. The public at large was to be allowed user of the chowk negating limited user thereof by the residents of the four “havelisâ€. It was

stated that the defendant had for the purpose of commercial construction wrongly and illegally obtained permission from the Municipality Nawalgarh

and had similarly been allowed commercial use. Restrain on the construction for commercial use and encroachment of the common “chowkâ€

permitting imminent public use of private property was sought.

On service of summons, the defendant filed a written statement of denial as also a similar reply to the application under Order 39 Rules 1&2 CPC. It

was stated that no purported common chowk between the four havelis ever existed. What was claimed, wrongly, as a “chowk†for the alleged

exclusive user of residents of the four havelis was two public roads criss crossing. The two roads by for long had been used by the public at large

without any restriction. One of the stated four havelis was in a dilapidated condition. The defendant as the lawful registered owner thereof sought its

conversion from residential to commercial on making payment of requisite charges, and also sought approval of construction plans as per extant

building bye-laws. Constructions were thereafter strictly in accordance with approved plans. No legal rights of the plaintiffs was contravened

therefrom. The allegation of encroachment of the alleged common chowk was denied as being baldly false. It was stated that on no count a lawful use

of property by the defendant as underway could be restrained.

The Nawalgarh Municipality supported the defendant's case in its written statement. Existence of a private chowk was denied and it was stated that

public ways 10' feet wide criss crossing the four havelis existed and were being so used. It was stated that building permission for commercial purpose

was granted as per extant bye-laws. The plaintiffs by false allegations of wrong doing was trying it brows beat it and in fact had even filed a false

case for the purpose. It was submitted that the father of plaintiff No.2 had himself sought and has been grated building permission on the chowk

outside his haveli, but within private ownership of the haveli owner and no part of oublic land or road was granted to the defendant and this fact having

been suppressed it sufficed for the plaintiff's case being dismissed. It was stated that the Municipality act as statutorily mandated against

encroachments.

On consideration of the plaintiffs' application under Order 39 Rules 1&2 CPC the trial court in the facts before it, by a detailed order relying on the

reports of the Commissioner dated 30-7-2013, 26-10-2013 and 17-4-2017 which certified that there was a 10' public road between the Havelis as also

reply of the Nawalgarh Municipality, found no prima facie case, balance of convenience or irreparable loss made out by the plaintiffs and dismissed

their application.

Aggrieved of the order dated 20-5-2017 passed by the trial court the plaintiffs filed a civil miscellaneous appeal under Order 43 Rule 1(r) CPC. The

appellate court vide the impugned order dated 11-9-2017 set aside the order passed by the trial court in substantial measure and restrained the

defendant from raising any construction in the “common public chowk†towards the west side of plaintiff's haveli and also restrained the

defendant from opening any gate in his property the shop constructed as per approved building plan towards the purported public “chowkâ€​.

Hence this petition by the defendant under Article 227 of the Constitution of India. Mr. M.M. Ranjan, Senior Advocate appearing with Mr. Arun

Singh Shekhawat for the defendant emphatically submitted that the trial court having taken a plausible and reasonable view on the application under

Order 39 Rules 1&2 CPC with reference to the material before it in the form of the Nawalgarh Municipality's reply, the documents relating to the

defendant's absolute ownership of the suit property, the deposit of conversion charges in regard thereto for the purpose of commercial from residential

as also the following construction as per the building plans approved by the competent authority, there was no scope for interference therewith by the

appellate court even if a different view was at all possible, which in fact in the instant case was not.

The defendant could not have been restrained from lawfully using his property already constructed, the appellate court's ipse dixit particularly when

there was nothing on record that the permissions for raising the construction, by the jurisdictional Municipality had been breached or the user was

unauthorised. He submitted that in view of the reports of the Commissioner (dated 30-7-2013, 26-10-2013 and 17-4-2017) which certified that there

was an existing 10' public road in use for several years between the Havelis, no prima facie case being made out for the plaintiffs, the balance of

convenience in the facts of the case could not even remotely being in his favour, no case of irreparable loss for the plaintiffs in such a situation could

also be found. The trial court had rightly by a detailed order dismissed the plaintiff's Oder 39 Rules 1&2 CPC application. Yet oddly the appellate

court has misdirected itself in exercising its jurisdiction in overlooking all relevant facts on record considered by the trial court.

This by itself vitiates the appellate court's order. Such order cannot be sustained. Reliance has been placed by Mr. M.M. Ranjan on the judgment of

the Apex Court in the case of Wander Ltd. Vs. Antox India P Ltd. [(1990) Supp) SCC 727] wherein the Apex Court held that the order passed by the

court below in exercise of its discretion is not to be interfered with by the appellate court unless it can find good reason to hold that the said order of

the original court was arbitrary, perverse or capricious. Mr. M.M. Ranjan submitted that yet the appellate court without just cause for holding of the

trial court’s order dated 20-5-2017 to be either capricious, perverse or arbitrary had substituted its own discretion thereon in a manner evidencing

irregular exercise of its jurisdiction contrary to the dictum of the Apex Court. Its order now impugned before this court be set aside and that of the trial

court be restored, Mr. M.M. Ranjan prayed.

Per contra, Mr. Pancham Surana, counsel for the plaintiffs submitted that the petition states to be one under Article 226 of the Constitution of India

and is not so maintainable against an order of the Civil Court. Mr. Pancham Surana alternatively submitted that even otherwise this court in the

exercise of its jurisdiction under Article 227 of the Constitution of India should not interfere with the order passed by the appellate court, which is the

final court of fact. The appellate court from the material on record before it found that the defendant was wrongly seeking to use a residential

premises for commercial purposes and allow public access to a “chowkâ€​ with user limited to residents/ owners of the four havelis.

Mr. Pancham Surana submitted that neither was the order of conversion from residential to commercial qua the haveli in issue was of any legal affect

nor the building permission for commercial purpose by the competent authority of any consequence as a Division Bench of this court in the case of

Gulab Kothari Vs. State of Rajasthan [2017(2) RLW 1178 (Raj.)] has held that conversion from residential to commercial should not be permitted

contrary to the master plan and without strict compliance with statutory safeguards written in law for the purpose. Mr. Pancham Surana submitted

that the safeguards and restraints on conversion from residential to commercial/ non residential user propagated by the Division Bench were thrown to

the winds by the Nawalgarh Municipality in allowing conversion of the defendant's haveli situate on a narrow street from residential to commercial.

Such illegality of change of user would also render non-est the building permission for commercial purposes even as per extant laws granted by the

jurisdictional municipality. The trial had overlooked these aspects of the matter and the appellate court has rightly corrected that fallacy. Hence no

interference as prayed for by the defendant in this petition be made and the petition be dismissed.

Heard. Considered.

The objection set up by Mr. Pancham Surana, counsel for the plaintiffs, as to the maintainability of the petition is unsustainable. Mr. Pancham Surana

adverted to the averments in para No.1 of the petition as also the ground (xviii) thereof which invoke Article 226 of the Constitution of India to submit

that such a petition against an order passed by the Civil Court is not maintainable. In making this overtly technical submission, Mr. Pancham Surana

overlooks the fact that the caption of the petition invokes Article 227 not Article 226 of the Constitution of India. Besides, it is well settled that the

caption of any proceeding/ application is not determinative of its maintainability when with reference to another available provision, such proceeding/

application is maintainable. The court thus can not take a technical view of the matter and side step the substantive I would proceed to consider this

petition challenging the interlocutory order passed by the Appellate court in civil miscellaneous appeal as one under Article 227 of the Constitution of

India.

That an order under Order 39 Rules 1&2 CPC is discretionary in nature is not resintegra. No doubt the discretion of the trial court has to be

judiciously exercised. But where it is so, reflected from objective consideration of the underlying material before the trial court, as also the contesting

affidavits in support, the appellate court cannot just substitute such exercise of discretion with its own. For so doing the appellate court has to first hold

for good and judiciously ascertainable reasons that the discretion of the trial court was exercised in a manner palpably arbitrary, perverse or

capricious.

Order 39 Rule 1 CPC provides that where in any suit it is proved by affidavit or otherwise that the defendant inter alia threatens or intends to

dispossess the plaintiff or cause injury to his legal rights, (underlining mine) the court may grant a temporary injunction to restrain such dispossession/

injury (underlining mine) in relation to such property in dispute. The plain language of Order 39 Rule 1 thus entails a prima facie determination of a

legal right of plaintiff and ascertainment of injury imminent thereto. A prima facie case of this count for any plaintiff is the starting point for an order of

injunction. And along therewith, equally important is the ascertainment of the two other ingredients of balance of convenience and irreparable loss.

Only on all three ingredients detailed above being made out and injury to the plaintiff's legal right being imminent is he entitled to interim protection and

conversely the defendant to interim restraint/ injunction. An order on an application under Order 39 Rules 1&2 CPC does not entail it is equally well

settled a mini trial and conclusive determination of complex questions of fact and/ or law. That exercise remains for a full blown trial.

In the instant case the plaintiffs admittedly have not alleged that the defendant has encroached upon the land of the plaintiffs. What they have alleged

is that the defendant want to use an alleged common chowkâ€"adjacent to their haveli for commercial purpose after having unlawfully (not un-

authorizedly) made commercial construction (as the construction has been made as per approved building plans). But that allegation does not prima

facie have a ring of truth in view of the reports of the Commissioner (dated 30-7-2013, 26-10-2013 and 17-4-2017) which certified that there was a

public road though narrowâ€"10' wideâ€"between the Havelis. Further permission of conversion/ change of user from residential to commercial by

the competent authority qua the defendant's property â€"subject of the suitâ€"has been granted. Statutory remedy thereagainst was not availed and

the conversion presently holds. Secondly building permission for commercial use under the extant building bye-laws by the jurisdictional municipality

has been granted for the property in the ownership of the defendant under Section 194 of the Rajasthan Municipalities Act, 2009 (hereafter `the Act

of 2009'). No appeal thereagainst under Section 194(12) of the Act of 2009 or under Rule 11 of the Rajasthan Urban Area Land Use Conversion

Rules, 2010 has been filed. That is also final. It is also nobody's case that the commercial construction by the defendant has been made contrary to the

sanctioned building plans.

Nor is it anybody's case that the approved building plan does not entail a door opening on to the alleged common chowkâ€"which the defendant

asserts is a public street, and the trial court found on the local commissioner (appointed by it) reports. As to the opening of the door from the shop in

issue on the alleged common/ private chowk is concerned, one way or the other and de hors the Nawalgarh Municipality's reply and the defendant's

contestation that no common chowk exists and that two roads criss cross the four havelis, (supported by the reports dated 30-7-2013, 26-10-2013 and

17-4-2017 of the Commissioners stating that a public road runs between the Havelis), the defendant as the owner of one of the four havelis in any

event would have a right to the said alleged common chowk and cannot prima facie be excluded therefrom. The trial court adverted to all the

aforesaid facts and dismissed the plaintiff's application to injunct the defendant in any manner. The appellate court has however overlooked all the

aforesaid factual aspects without any good and legally sustainable cause. It instead misdirected itself without regard the facts of the case and on

vacuous hyperbole in-appositely drawing on the judgment of the Division Bench in the case of Gulab Kothari Vs. State of Rajasthan [2017(2) RLW

1178 (Raj.)] and overlooking the fact that no breach of master plan had been alleged by the plaintiffs; that the defendant had deposited conversion

charges for change of user from residential to commercial which had been accepted by the Nawalgarh Municipality and building permission granted

for commercial purposes of which no breach is alleged, injuncted the defendant.

For the aforesaid reasons, the impugned order dated 11-9-2018 passed by the appellate court interfering without just cause, with the plausible and

reasonable exercise of discretion by the trial court, is quashed and set aside. And the order dated 20-5-2017 passed by the trial court is upheld/

restored. However, the trial court is directed to dispose of the plaintiffs' suit within twelve months of the receipt of a certified copy of this order.

Counsel for the parties undertake on behalf of the plaintiffs and defendant respectively to cooperate in the expedited disposal of the underlying suit. To

that end the trial court should adhere to the enunciation of the Apex Court in the case of Shiv Cotex Vs. Tirgun Auto Plast (P) Ltd. [(2011)9 SCC

678] where adjournments have been limited to three or four times in the trial of the suit and also to Order 17 CPC.

The trial court shall also have the option of deciding miscellaneous applications filed in the course of the trial in the suit along with the final judgment as

was provided for by the Apex Court, for expedited trial, albeit in context of an election petition, in the case of Pukhrem Sharatchandra Singh Vs.

Mairembam Prithviraj (AIR 2015 SC 3783). It is also recorded as fairly stated by Mr. M.M. Ranjan, appearing for the defendant, that this order will

not be used as a firewall against any encroachment by the defendant, if found by the Nawalgarh Municipality at any stage. And where encroachment

by defendant, if made is found after due process, the Nawalgargh Municipality shall be free to act thereagainst in accordance with law. The petition

stands accordingly allowed.