W.P.No. 6077/2010
Munna Lal Forest Circle Officer Kalpi and others.
13.5.2010.
Shri Paritosh Trivedi, counsel for the petitioner.
This petition is directed against an order dated 29.4.2010
(Annexure P/5) by the District Judge, Mandla in Misc. Civil
Appeal No.60/2009 by which an appeal preferred against the
order dated 3.12.2009 by Civil Judge Class-2, Niwas in Civil Suit
No. 18-A/2009 was dismissed,
The trial Court vide order dated 3.12.2009 refused to
extend period of temporary injunction on the ground that the
petitioner was at fault in non-paying the process fee for service on
respondents.
The learned counsel appearing for the petitioner submitted
that in fact the petitioner was not at fault. He took steps for service
on defendants but because of non service of the defendants, the
case was adjourned. It is further prayed by Shri Trivedi that for a
period of two months from today, temporary injunction order may
be extended.
To appreciate the aforesaid contention, we have perused
the record. From the perusal of the order dated 6.5.2009 of the
trial Court, we find that an application, under Order 39 rules 1 and
2 CPC filed on behalf of the petitioner, was allowed by the trial
Court but for a limited period and the respondents were restrained
to raise any construction for a period of four months. But because
of non-payment of PF, the defendants could not be served.
However, they were served on 3.12.2009. Both the Courts below
found that the petitioner/plaintiff was at fault in delaying the
proceedings and refused to extend the period of temporary
injunction. After perusal of the orders passed by the Courts below,
we find that there is no error of jurisdiction in the impugned
orders.
W.P.No. 6077/2010
Munna Lal Forest Circle Officer Kalpi and others.
So far as second prayer of the petitioner that two months
period of temporary injunction may be extended, we have
considered the matter and found that parties are served and the
case is ripe for hearing. If during the pendency of the suit, the
respondents are permitted to raise construction, which was
restrained vide order Annexure P/3, there may be an irreparable
loss to the petitioner.
In view of the aforesaid, for a period of two months from
today, we extend the period of temporary injunction but on
following conditions:
(I) The petitioner to furnish security to the trial Court that in
case the suit is dismissed, the petitioner shall compensate the
other side adequately.
(ii) The petitioner shall not delay hearing of the case and shall
produce all his evidence in the matter on a date which may be
fixed by the trial Court in this regard.
Considering the facts of the case, there shall be no order
as to cost.
Certified copy as per Rules.
(Krishn Kumar Lahoti) (G.S.Solanki)
Judge Judge
JLL