S.B.CIVIL WRIT PETITION NO.9070/09 Kappora Ram & Ors. vs. Pola Ram DATE OF ORDER : 14/12/2009 1/3 S.B.CIVIL WRIT PETITION NO.9070/09 (Kappora Ram & Ors. vs. Pola Ram) DATE OF ORDER : 14/12/2009 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.J.R.Patel, for the petitioner. Dr.Pushpendra Singh, for the respondent. By this writ petition the defendant petitioner has challenged the order dated 2/9/2009 passed by the learned District Judge, Jalore in civil appeal no. 18/2009, whereby, the order of learned trial court dated 19/8/2009, whereby, the trial court rejected the temporary injunction application under Order 39 Rule 1 and 2 CPC was modified and learned first appellate court directed the parties to maintain status quo of the suit property. Learned counsel for the petitioner defendant submits that while rejecting the temporary injunction application, the learned trial court had clearly found on the basis of Commissioner's report that the construction by the plaintiff respondent was along the straight line and, therefore, in the map produced before the learned trial court the plaintiff had wrongly shown that construction on the land was along S.B.CIVIL WRIT PETITION NO.9070/09 Kappora Ram & Ors. vs. Pola Ram DATE OF ORDER : 14/12/2009 2/3 with diagonal line from point `E' to `F' shown in the map Ex.A with the plaint and, therefore, the defendant cannot be restrained by status quo order to raise construction on his own land for which he had permission from the Municipal Authorities. On the side opposite, Dr.Pushpendra Singh submits that where the bonafide dispute between the parties exists, in such matter the Court below ought to normally pass status quo order, therefore, the rejection of temporary injunction application by the learned trial court was incorrect and first appellate court had rightly directed status quo to be maintained by the parties. In rejoinder, Mr. J.R.Patel, learned counsel for the petitioner defendant submits that even if defendant is allowed to complete the construction, he will do so at his own risk and will not claim any equity upon such construction raised during the pendency of the suit and if the suit is decreed against him, he will remove such disputed construction at his own cost without claiming any equity on such construction. He, therefore, prayed for modification of the order passed by the first appellate court on 2/9/2009. S.B.CIVIL WRIT PETITION NO.9070/09 Kappora Ram & Ors. vs. Pola Ram DATE OF ORDER : 14/12/2009 3/3 Having heard the learned counsels and in view of the facts and circumstances of the case, this Court is of the opinion that blanket status quo order may cause serious prejudice to the defendant petitioner in the present case. Once the trial court on the basis of evidence available on record had prima facie found that defendant was raising the construction on his own land, therefore, till the dispute is finally decided in the suit, this Court is of the opinion that if the defendant completes the construction on the aforesaid undertaking of learned counsel for the petitioner defendant, it would meet the ends of justice. Accordingly, this writ petition is allowed and the impugned order dated 2/9/2009 is modified and the defendant petitioner shall be allowed to complete his construction subject to aforesaid undertaking. No order as to costs. (DR.VINEET KOTHARI), J. item no.19 baweja/-