Mohan Lal Kataria and anr. Vs. Nagar Parishad, Sri Ganganagar and anr. - Court Judgment

Excerpt:
- - 3. it has been contended by the learned counsel for the plaintiff-petitioners that both the lower courts have seriously erred to hold that the plaintiffs have failed to establish a prima facie case and balance of convenience in their favour and also that they would suffer irreparable loss if the temporary injunction is not granted. kikj ij foifjr izhkkoims+xk a* in appeal, the learned additional district judge has endorsed these portions.ordermilap chandra jain, j. 1. this revision petition has been filed against the order of the learned additional district judge no, 1, sri ganganagar dated nov. 29, 1991 by which he has dismissed the appeal and confirmed the order of the learned additional munsif, sri ganga-nagar dated october ii, 1990, rejecting the application of the plaintiff-petitioners moved under order 39, rules 1 and 2, c.p.c. the facts of the case giving rise to this revision petition may be summarised thus.2. the plaintiff-petitioners filed a suit for permanent injunction against the nagar parishad, sri ganganagar (non-petitioner no. 1) with the allegations, in short, that public part exists in front of their shops, a piece of land measuring 15'x 10'of this park is being given to sam khadi gramodhyog samiti, ganganagar (non-petitioner no. 2) for installing its std/pco booth withoutany authority and if the booth is constructed the frontage of their shops would be obliterated and praying that the nagar parishad, sri ganganagar be restrained from doing so. an application under order 39, rules 1 and 2, c.p.c. was moved. it was seriously opposed by the nagar parishad by filing its detailed reply. after hearing the learned counsel for the parties, the learned additional munsif dismissed it by his order dated oct. 11, 1990. an appeal was filed. it appears from the order of the appellate court dated nov. 29, 1991 that sain khadi gramodhyog samiti, sri ganganagar was also impleaded in it as respondent no. 2. this appeal was also dismissed as said above.3. it has been contended by the learned counsel for the plaintiff-petitioners that both the lower courts have seriously erred to hold that the plaintiffs have failed to establish a prima facie case and balance of convenience in their favour and also that they would suffer irreparable loss if the temporary injunction is not granted. he contended that no part of the land of the public park can be utilised for any purpose and could be given to sain khadi gramodhyog samiti for installing std/ pco booth. he also contended that installation of the booth will obliterate the frontage of the shop of the plaintiffs. he lastly contended that there is no space near the toilet block. he relied upon bangalore medical trust v. b.s. mudappa, air 1991 sc 1902 : 199j air scw 2082.4. the learned counsel for the defendant-non-petitioners duly supported the order under challenge. he contended that no jurisdictional error has been committed by the subordinate courts in refusing temporary injunction prayed for.5. there is no substance in the revision petition. the learned additional munsif in his order dated october 11, 1990, at page 6, has observed -^cwfk lfkkiuk ds fy, iyku esan'kkz;s x, vk;ysv iyku esa ls flqz 10 x15 qwv dh jke hkwfe lfefr dks vkoafvr dh xbz gs iwjk vk;ysv cykd vkoafvr ughafd;k x;k gs bl izdkj mdr fookfnr lfky ij vk;ysv ds lkfk lkfk ,l- vh- mh- ih- lh-vks- cwfk dh hkh lfkkiuk gksus ls tu lk/kkj.k dks vr;f/kd qk;nk gksxk a*it has further been observed at page 7:~^dk;zy; uxj fu;kstd vo'; gh cqfkdk fcfymax iyku iqjkuh lcth e.mh ekfdzv ds deiysdl ds ud'kksa dks e/; utj j[krsgq, ikfjr djsxk ,slk vf/kodrk vizkfkhz us dgk gs ftls izkfkhz x.k dh nqdkuksa dsvfxze fglls esa fdlh izdkj dk izhkko ugha im+sxk uk gh o;kikj ij foifjr izhkkoims+xk a*in appeal, the learned additional district judge has endorsed these portions. these are findings of fact. as a matter of fact no part of the land has been transferred but only a licence has been granted to erect std/pco telephone booth. it is not open to this court to interfere under section 115, c.p.c.6. however, the trial court will expedi-tiously decide the suit in accordance with law keeping in view the law laid down in bangalore medical trust v. b.s. mudappa, air 1991 sc 1902 : 1991 air scw 2082.7. with the aforesaid observations, the revision petition is dismissed. no order as to costs.

Judgment:
ORDER

Milap Chandra Jain, J.

1. This revision petition has been filed against the order of the learned Additional District Judge No, 1, Sri Ganganagar dated Nov. 29, 1991 by which he has dismissed the appeal and confirmed the order of the learned Additional Munsif, Sri Ganga-nagar dated October II, 1990, rejecting the application of the plaintiff-petitioners moved under Order 39, Rules 1 and 2, C.P.C. The facts of the case giving rise to this revision petition may be summarised thus.

2. The plaintiff-petitioners filed a suit for permanent injunction against the Nagar Parishad, Sri Ganganagar (non-petitioner No. 1) with the allegations, in short, that public part exists in front of their shops, a piece of land measuring 15'x 10'of this park is being given to Sam Khadi Gramodhyog Samiti, Ganganagar (non-petitioner No. 2) for installing its STD/PCO booth withoutany authority and if the booth is constructed the frontage of their shops would be obliterated and praying that the Nagar Parishad, Sri Ganganagar be restrained from doing so. An application under Order 39, Rules 1 and 2, C.P.C. was moved. It was seriously opposed by the Nagar Parishad by filing its detailed reply. After hearing the learned counsel for the parties, the learned Additional Munsif dismissed it by his order dated Oct. 11, 1990. An appeal was filed. It appears from the order of the appellate court dated Nov. 29, 1991 that Sain Khadi Gramodhyog Samiti, Sri Ganganagar was also impleaded in it as respondent No. 2. This appeal was also dismissed as said above.

3. It has been contended by the learned counsel for the plaintiff-petitioners that both the lower courts have seriously erred to hold that the plaintiffs have failed to establish a prima facie case and balance of convenience in their favour and also that they would suffer irreparable loss if the temporary injunction is not granted. He contended that no part of the land of the public park can be utilised for any purpose and could be given to Sain Khadi Gramodhyog Samiti for installing STD/ PCO booth. He also contended that installation of the booth will obliterate the frontage of the shop of the plaintiffs. He lastly contended that there is no space near the toilet block. He relied upon Bangalore Medical Trust v. B.S. Mudappa, AIR 1991 SC 1902 : 199J AIR SCW 2082.

4. The learned counsel for the defendant-non-petitioners duly supported the order under challenge. He contended that no jurisdictional error has been committed by the subordinate courts in refusing temporary injunction prayed for.

5. There is no substance in the revision petition. The learned Additional Munsif in his order dated October 11, 1990, at page 6, has observed -

^cwFk LFkkiuk ds fy, Iyku esan'kkZ;s x, Vk;ysV Iyku esa ls flQZ 10 x15 QwV dh jke Hkwfe lfefr dks vkoafVr dh xbZ gS iwjk Vk;ysV Cykd vkoafVr ughafd;k x;k gS bl izdkj mDr fookfnr LFky ij Vk;ysV ds lkFk lkFk ,l- Vh- Mh- ih- lh-vks- cwFk dh Hkh LFkkiuk gksus ls tu lk/kkj.k dks vR;f/kd Qk;nk gksxk A*

It has further been observed at page 7:~

^dk;Zy; uxj fu;kstd vo'; gh cqFkdk fcfYMax Iyku iqjkuh lCth e.Mh ekfdZV ds dEiysDl ds ud'kksa dks e/; utj j[krsgq, ikfjr djsxk ,slk vf/koDrk vizkFkhZ us dgk gS ftls izkFkhZ x.k dh nqdkuksa dsvfxze fgLls esa fdlh izdkj dk izHkko ugha iM+sxk uk gh O;kikj ij foifjr izHkkoiMs+xk A*

In appeal, the learned Additional District Judge has endorsed these portions. These are findings of fact. As a matter of fact no part of the land has been transferred but only a licence has been granted to erect STD/PCO telephone booth. It is not open to this Court to interfere under Section 115, C.P.C.

6. However, the trial court will expedi-tiously decide the suit in accordance with law keeping in view the law laid down in Bangalore Medical Trust v. B.S. Mudappa, AIR 1991 SC 1902 : 1991 AIR SCW 2082.

7. With the aforesaid observations, the revision petition is dismissed. No order as to costs.