JUDGMENT
Milap Chand Jain, J.
1. This revision is directed against the order dated 1-8-80 passed by the Civil Judge, Nagaur, whereby he allowed the appeal of the defendants and set aside the order passed by the Munsif Nagour dated 1-7-80 whereby the learned Munsif directed the defendants to remove the obstructions placed at point ‘A’ the passage of the plaintiff.
2. The plaintiff-petitioner Narsingh Ram instituted the suit against the defendants alleging that there was away to his fields Khasra No. 368 and 422 passing through the fields Khasra No. 369 and 365 of the defendants. This right was being used by the plaintiff since long peacefully and without any interruption. It was also alleged that there was no other way except as alleged by the plaintiff It was further alleged that the defendants have obstructed that way so the plaintiff prayed for mandatory injunction. Along with the suit an application for temporary injunction was also presented. The learned Munsif prima facie found the case in favour of the plaintiff and so allowed the application and ordered for removal of the obstruction. In appeal by the defendants, the learned civil Judge observed that the plaintiff has not produced any document regarding the existence of way. Both the parties have filed affidavits regarding existence and non-existence of the way. As regards the non-existence of the way the Commissioner doubted the same so the learned Civil Judge observed that there is a fair question to be tried in the suit. However, felt bound by an authority of this Court in Ram Chandra Tanwar v. Ram Rakhmal Amichand and Ors. AIR 1971 Raj. 292 and on the basis of the observations made in that case he stated that no mandatary injunction can be granted in order to restore the previous positions. Considering the observations in that case he accepted the appeal and set aside the order passed by the Trial Court.
3. Having heard counsel for the parties, I am of the opinion that the order of the appellate court is not sustainable. Ramchandra Tinwar’s case(supra) does not lay down any inflexible rule. That case came up for consideration before this Court in Qulam Abbas v. Iqbal and Ors. reported in 1984 WLN(UC) 707. In Ram Chandra Tanwar’s case reliance was placed on a Calcutta decision which has also been explained in that case. Calcutta case also came up for consideration before the Division Bench of the Calcutta High Court in Indian Cable Co. Ltd. v. Smt. Sumitra Chakraborty . In that case it was observed as under:
If a court is called upon to grant any relief on any interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumpect in the matter of granting any such prayer. It is indeed true that such a relief should be granted only in exceptional cases. Though exercise of such a discretion should be limited to rare and exceptional cases, still at the same time no court should think that in law there is any absolute bar to the Court granting such a relief. In deserving cases, the court should not hesitate to come in aid of a litigant and uphold the cause of justice by granting such a relief.
In Gulam Abbas’ case (supra) it was observed as under:
It cannot be said that law propounded in these cases is inflexible, rigid and knows no exception. Chakarvatti, C.J. in Calcutta case relied on in Ram Chandra Tanwar’s case (supra) himself has stated that in an exceptional case in which the rule propounded may not be adhered to and he was also careful in making an observation that he does not wish to say that in no circumstances will the court have any jurisdiction to issue an interim injunction of a mandatory character pending the disposal of an application for an injunction. These observations go to point out that the question of grant of interim relief in the form of mandatory injunction or preventive injunction depends on the circumstance of each case. Take for example in an action for restoration of amenity like water, light or any other amenity discontinued by the landlord, if the tenant moves an application for immediate restoration of amenity, I think it is the bounden duty of the court to restore the discontinued amenity and grant interim relief to the tenant. Suppose in a suit for permanent injunction for demolition of the obstructions placed, whereby the passage is blocked, so as to render the property inaccessible the grant of interim relief by way of demolition of obstruction would be essential. In a situation like this, where two separate owners of the property are living in a big building having two chowks and access to the property in the inner chowk is obstructed and there may be no other passage to have access to the property in the inner chowk, the court cannot refuse to grant interim relief. So may be the cases where obstructions had been placed affecting the right of irrigation, as the standing crop may be destroyed. Thus, it would appear that the matter of grant of interim relief would depend on the nature of the right, the nature of the wrong done the exigencies of the given case requiring the immediate redressal of the grievance made or undoing of the wrong and the rule propounded cannot be made applicable, with rigidity. Courts primarily exist for imparting justice. If a strong prima facie case is made out necessitating grant of interim relief, it should not refrain from granting the interim relief to the party, if it is legitimately entitled to the same.
It may be mentioned that it was the duty of the appellate court to have recorded a prima facie finding about the existence or non-existence of the way but without recording any such finding, he observed that fair question is required to be tried in the suit. But despite such an observation he proceeded to dispose of the appeal in the light of the decision rendered by this Hon’ble Court in Ramchandra Tanwar’s case (supra). If the plaintiff had no way other than the way in question and if any obstruction has been placed by the defendants in the way, then interim relief undoubtedly is called for else the plaintiffs fields would become inaccessible and therby he would suffer irreparable loss as he would not be able to visit his field and cultivate the same. On behalf of the defendants it is urged that there exists an other way through which the plaintiff can have and was having access to his fields and in case the plaintiff is allowed to have access to his field through the fields of defendants then the defendants ‘bara’ and the boundaries wall have to be demolished. The existence of the ‘bara’ and the boundaries indicate that there never existed any way through the defendant’s field. Suffice it to say that when there is fair question to be tried in the suit then in that situation, it would be highly unjust to refuse interim relief to the plaintiff.’ It may be mentioned that the plaintiff cannot claim any right from a particular part of the defendants land for egress and ingress. The defendants have got a right to set apart a particular portion of the land for the plaintiffs passage but that should be reasonable exercise of choice. If from the existing way as claimed by the plaintiff the constructions are required to be demolished then it would be open to the defendants to provide an alternate way through their lands so that plaintiff may have access to his fields through that particular portion of the defendants’ land.
4. Accordingly, the revision petition is allowed and the defendants are directed to provide way to the plaintiff-petitioner through their lands bearing Khasra No. 369 and 365 so that the plaintiff made have access to his fields 368 and 422. As this matter has become very old, the trial court is directed to hear this case day to day and in dispose of the suit within three months.
5. Parties to bear their own costs.