CW-5581/09-Sanjay Kumar & Anr. Vs. Ram Rai & Ors. Judgment dt.16.7.09 1/4 S.B. CIVIL WRIT PETITION NO.5581/2009 Sanjay Kumar & Anr. Vs. Ram Rai & Ors. Date of order : 16th July, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Manish Shishodia for the petitioner. Mr. Sandeep Saruparia ) for the respondents. Mr. R.K. Purohit for Mr. L.R. Mehta ) ------- 1. This writ petition is directed against the order dated 15.5.2009. The suit was filed by the plaintiffs in representative capacity challenging the construction of shops etc. in the open chowk by the defendant who owned the Sarai (Dharmashala) in question and in the open chowk adjacent to the said Dharmshala, they are constructing the shops etc. The plaintiffs had filed the suit in representative capacity challenging the ongoing construction in the chowk in question. By the impugned order dated 15.5.2009, the learned trial court has directed that the ongoing construction in the open chowk may go on however, the Dharmshala in question shall not be demolished by the defendants. 2. The learned counsel for the petitioner-plaintiffs Mr. Manish Shishodia submits that since final decision of the application under Order 39 Rule 1 C.P.C. is still pending before th learned trial court, the impugned order could not have permitted the defendants to carry on the ongoing construction, the learned trial court may be directed to decide the application expeditiously. CW-5581/09-Sanjay Kumar & Anr. Vs. Ram Rai & Ors. Judgment dt.16.7.09 2/4 3. Learned counsel for the petitioner has relied upon the following judgments in support of his contentions:- 4. Firstly he has relied upon the case of Shaikh Ali Hossain & Ors. Vs. Sk. Showkat ali and Anr. - 2008(2) WLC (SC) Civil 528. 5. In the said judgment in Bench of two Hon'ble Judges, there was difference of opinion and, therefore, the matter stood referred to the Hon'ble CJI for appropriate orders. Therefore, the said judgment is of no avail to the petitioner in the present case. 6. Another judgment cited by the learned counsel is in the case of Maharwal Khewaji Trust (Regd.) Faridkot Vs. Baldev Dass – 2005(1) RLW (SC) 102 in which case the learned trial court granted temporary injunction restraining the respondents from alienating the suit property and putting up construction and the appellate court directed that alienation if any made or construction if any raised would be subject to final decision of the suit and the construction if any put up by the respondents will have to be removed at his own risk and cost in the event of suit being decreed. The Hon'ble Supreme Court restored the order of the learned trial court. This judgment is also of no support to the learned counsel for the petitioner as the impugned order passed is rather in consonance with the said judgment of the Apex Court rather than falling foul with it. CW-5581/09-Sanjay Kumar & Anr. Vs. Ram Rai & Ors. Judgment dt.16.7.09 3/4 7. The third judgment relied upon is in case of Akhil Bhartiya Vidhyarthi Parishad, Udaipur Vs. State of Rajasthan & Ors. - 2004(1) WLC 30 in which the Division Bench of this Court in a public interest litigation dealing with the case of grant of land to Educational Institutions observed that any agreement to transfer the property for grant of commercial purpose was not legal. This judgment is also of no avail and the facts of the case in a public interest litigation of the said nature are entirely different from the facts involved in the present case. Therefore, all the judgments relied upon by the learned counsel for the petitioners are not applicable in the facts and circumstances of the present case. 8. On the side opposite, Mr. Sandeep Saruparia and Mr. R.K. Mehta submit that there is nothing wrong in the impugned order and since the Dharmshala in question is not being demolished as a matter of fact there is no grievance to the plaintiffs and the ongoing construction is with a view to give alternative shops to those persons whose shops have been demolished to raise the said construction in the open chowk adjacent to the Dharmashala in question. They further submit that in view of status quo order granted by this Court on 28.5.2009 the ongoing construction has stopped midway and due to rainy season that is likely to cause serious prejudice to the defendants and may cause financial loss to them. CW-5581/09-Sanjay Kumar & Anr. Vs. Ram Rai & Ors. Judgment dt.16.7.09 4/4 9. Having heard learned counsels and upon perusal of the reasons given in the impugned order, this Court does not find any reason to interfere with the said order at this stage. 10. The writ petition is found to be devoid of merit. The same is accordingly dismissed. [ DR. VINEET KOTHARI ], J. item No.s/3 babulal/