IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 29.01.2009. S.B. CIVIL WRIT PETITION NO.11324/2008 Ram Swaroop Gupta Vs. Addl. District Judge No.2, Bundi & Anr. HON'BLE MR. JUSTICE DALIP SINGH Shri Sanjeev Prakash Sharma , for the petitioner. This writ petition has been filed by the petitioner challenging the order passed by the learned appellate court dated 17.9.2008 allowing the appeal filed by the Gram Panchayat against the order of temporary injunction passed by the learned trial court dated 8.12.2005. Where as the learned trial court while allowing the application for grant of temporary injunction had directed the respondent Gram Panchayat to remove the lock on the shop in dispute and handover the possession and had also restrained the respondent not to obstruct the plaintiff petitioner from using the property in dispute. I have heard the learned counsel for the petitioner and have perused the impugned order as well as the order passed by the learned trial court. Admittedly as per the plaint averments admittedly on 23.6.2005 the respondent Gram Panchayat had taken possession of the shop in dispute and had put its lock over the suit shop. The suit was filed by the petitioner on 13.9.2005 and along with the said suit an application for grant of temporary injunction was also filed. The learned trial court allowed the said application and while passing of the order of injunction against the defendant respondent it had also passed an order of mandatory injunction on the application for grant of temporary injunction directing the defendant respondent to remove the lock and thereby restored the possession to the plaintiff petitioner. It is this, the order of the learned trial court which was challenged before the learned lower appellate court by the Gram Panchayat respondent which appeal has been allowed by the impugned order dated 17.9.2008. I am of the view that as has been held by this court in AIR 1971 (Raj.) 292 Ram Chandra Vs. M/s. Ramrakh Mal Amichand & Anr., while deciding the application for grant of temporary injunction the court can do not more than to restore the position or maintain status quo as it existed on the day of filing of the suit. Reference may be made to Para 10 of the report which reads as under : “10. Then there is another imporant factor which also goes in favour of the appellant. As has been stated the plaintiff filed the application on March 17 1970, along with the plaint for the issue of temporary injunction and in that application it was clearly stated that the two stalls in question were not working and were closed on the date of the suit. In such circumstances, when the business of the plaintiff had already been closed on the date of the suit, namely, on March 17, 1970, there could be no question of granting an injunction under O.39 Rule 1 or 2 C.P.C. so as to permit the plaintiff to restart that business, for it is well settled that the trial court could do not more than restore the position as it stood on the date of the suit. Reference in this connection may be made to Nandan Pictures Ltd. V. Art Pictures Ltd. AIR 1956 Cal 428. The learned Judge of the trial court, therefore, committed another illegality in passing the impugned order which had the effect of allowing the plaintiff to reopen and restart its business on the two stalls in question.” In the facts of the present case admittedly the possession had been taken by the Gram Panchayat on 23.6.2005 and the present suit was filed on 13.9.2005 i.e. after a period of three months of being dispossessed. Keeping in view of the dictum of this court in the case referred to above the learned trial court could not have directed the defendant to handover the possession or to remove the lock from the shop in dispute and hand over the possession since the plaintiff was not in possession when the suit was filed. As this would amount to decreeing the suit at the preliminary stage by means of a mandatory injunction. This writ petition against the order allowing the appeal and setting aside the order of the learned trial court therefore calls for no interference. This writ petition is dismissed summarily. (DALIP SINGH),J. Ramchandrkhatri,PS