1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.8470/05 Kailash Chand vs. State of Raj. & Ors. Date of order : 21/2/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri B.M. Sharma for the petitioner. Shri Ankur Rastogi, Addl. Govt. Counsel for State. Shri A.K. Pareek for the respondent. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner challenging the judgment dated 16.9.2007 whereby the appeal of the petitioner against the injunction order dated 26.2.2005 passed by the Court of Civil Judge (JD), Newai was dismissed. The injunction order was passed in the suit filed by respondent no.5 Radhey Shyam to claim that the residential quarter in dispute was attached to the office of pump driver posted in Pratappura, Vanasthali pump of Bidoli Dam. The plaintiff-petitioner having been transferred to that post was entitled to 2 occupy the quarter. It was contended that the petitioner Kailash Chand has since been transferred to Chanani, Kachariya, which is situated at adjacent place and that he was illegally occupying that quarter. The learned trial court passed the injunction order to the effect that the allotment of the quarter be made to the plaintiff. The petitioner filed appeal against that injunction order. Contention of the petitioner before the appellate court was that he was not made a party to the suit even though the order that was passed ultimately affected him. It was contended by him that the allotment made to the plaintiff Radhey Shyam was stayed by Assistant Engineer vide his telephonic order dated 4.6.2004. The plaintiff concealed this fact from the trial court that as soon the quarter was vacated by Shrawan Singh on 30.4.2004, it was occupied by the petitioner and that the petitioner was 3 senior to plaintiff Radhey Shyam and his application for allotment of quarter was pending consideration with the authorities of the department. The learned appellate court however dismissed the appeal by categorically holding that the petitioner has not been able to produce any order of allotment made in his favour. Hence this writ petition. I have heard Shri B.M. Sharma, learned counsel for the petitioner, Shri Ankur Rastogi, learned Addl. Govt. Counsel and Shri A.K. Pareek, learned counsel for the respondent no.5. Shri B.M. Sharma, learned counsel for the petitioner has argued that the injunction order could not have been passed behind the back of the petitioner more particularly when it affected him vitally in that it could have the effect of his dispossession from the disputed quarter. It was argued that the allotment made to respondent no.5 was stayed by the 4 Assistant Engineer. Learned counsel for the petitioner invited attention towards para 11 of the judgment of the appellate court and argued that when the appellate court noticed the fact that execution / implementation of the allotment order made in favour of the plaintiff- respondent was stayed by the competent authority, he had no authority to claim occupation of the house in question. It is therefore prayed that the judgment passed by the appellate court as also the injunction order passed by the trial court be both set aside. On the other hand Shri Ankur Rastogi, learned Additional Government Counsel and Shri A.K. Pareek, learned counsel for the respondent no.5 opposed the writ petition and argued that even the order dated 4.6.04 on which reliance is placed by the learned counsel for the petitioner does not make allotment of the said quarter to the petitioner inasmuch as it is argued 5 that while the plaintiff who has been allotted the quarter in question is posted at that place itself. The petitioner is posted much away from there at Chanani, Kachariya. The learned Additional Govt. Counsel in particular argued that the petitioner had on his own unauthorizedly occupied the house and he was a trespasser in the house. The Government therefore seriously opposes the claim of the petitioner to retain the possession of that quarter. Having heard the learned counsel for the parties and perused the impugned order, I find that allotment of the quarter in question was never made to the petitioner inasmuch as the petitioner could not produce any such allotment order either before the appellate court or even before this Court. He could not show as to under what authority, he occupied the quarter in question. He also could not dispute the fact that while the 6 plaintiff is posted at the place where this quarter is located, his posting is at a different place. In the circumstances, I do not find that the appellate court has committed any error of law in rejecting the appeal of the petitioner. The argument that the petitioner was not impleaded as party, therefore the injunction should be interfered with also does not merit acceptance because in spite of the fact that petitioner in his appeal against the injunction order had the opportunity to prove his prima facie case, he was not able to persuade the appellate court on the merits of his case, nor is he able to do so even before this Court. I therefore do not find any merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/