1 S.B. CIVIL WRIT PETITION NO. 1104/2007 Aam Janta Gram Baaniyavass Vs. District Judge, Balotra & ors. Date of Order :: 13th May 2008 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Harish Purohit for the petitioners Mr.Mahaveer Bishnoi for the respondents Nos.3 to 11. ... Having heard learned counsel for the plaintiffs- petitioners and having examined the material placed on record, this Court is not persuaded to consider any interference in the impugned order dated 08.02.2007 (Annex.1) as passed by the District Judge, Balotra in Civil Misc. Appeal No.21/2006 whereby the order dated 19.10.2006 (Annex.2) as passed by the Civil Judge (Junior Division), Balotra in Civil Misc. Case No.45/2006 has been affirmed; and the prayer made by the petitioners for issuing mandatory temporary injunction has been declined. The dispute relates to the rights claimed by the petitioners to use the way in question and the suit has been filed by the petitioners as representatives of the residents of the villages Baniyavas and Meghavas. The learned Trial Court after noticing the fact situation of the case has found prima facie that the land in question, comprised in Khasra No.28, was of the ownership of the defendants and no such 2 alleged way through the land in question was mentioned in the settlement record. The learned Trial Court has also referred to the Commissioner's report indicating existence of the disputed way but the same was found closed at the site. The learned Trial Court has also found available an alternative way, though stretching to about 8-9 Kms. in comparison to the way in dispute, said to be only about 1 ½ Kms. in length. After finding that the disputed way was closed on the date of the suit, the learned Trial Court has issued temporary injunction rather to the effect that status quo as per the Commissioner's report shall be maintained at the place in dispute during the pendency of the suit. The learned Appellate Court has endorsed the findings of the learned Trial Court after examining the record; has also referred to the principles applicable for issuance of mandatory temporary injunction in the matters of serious emergency; and has not found the present case fit enough for invoking such powers so as to order opening of the way in dispute. Learned counsel for the petitioners has vehemently submitted that when it was categorically found from the material available on record that the way in question had been in existence and had been closed by the defendants, the learned subordinate Courts ought to have considered the serious difficulties faced by the residents of both the villages 3 because of closure of the way by the defendants; and the way in question ought to have been permitted to be used during the pendency of the suit. It is noticed that the site inspection report (Annex.7) was made by the Commissioner on 16.08.2006 and the learned Trial Court rejected the prayer for mandatory injunction on 19.10.2006 and then, the appeal was dismissed on 08.02.2007. Obviously, for all this length of time, status quo as was obtaining on the date of filing of the suit has continued. True it is that in a given case, if the situation so warrants, the Court is not powerless to issue a temporary injunction in mandatory form but when the subordinate Courts have not found the case fit enough to make any such order particularly for existence of alternative way, albeit longer one as alleged; and then, having regard to the length of time that has elapsed since passing of the impugned orders, this Court does not find any justification that the proposition of issuance of mandatory temporary injunction be now given a consideration in this writ petition. Ultimately, the rights of the parties are to be adjudicated in the suit and it appears appropriate that without any comments on the merits of the case, the matter be left for decision by the learned Trial Court in the main suit. 4 At this stage, learned counsel Mr.Harish Purohit appearing for the petitioners made a fervent appeal that looking to the difficulties faced by the residents of the two villages, the Trial Court may be directed to decide the suit at the earliest. On being questioned if at all the petitioners made any such prayer to the learned Trial Court and as to whether the learned Trial Court did not give such prayer due consideration, learned counsel frankly submitted that of course no such prayer for expeditious disposal of the suit was made before the Trial Court but prayed that some appropriate directions in that regard may be issued. It is always permissible for the petitioners to make a request to the learned Trial Court to take up trial of the suit in priority and to proceed with the matter expeditiously and it cannot be assumed that if any such prayer is made by the petitioners, the same would not be given due consideration by the learned Trial Court. However, there does not appear any necessity for issuing any further directions in the matter. The parties are required to adopt appropriate course before the Trial Court. Subject to the observations aforesaid, the writ petition stands dismissed. (DINESH MAHESHWARI), J. MK