1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Bharat Singh & Ors. V/s. Additional District Judge (FT) NO.1, Jhunjhunu & ors. (S.B. Civil Writ Petition No.7602/2010) S.B. Civil Writ Petition under Articles 226 and 227 of the Constitution of India Date of Order :: August 27, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Rinesh Gupta for the petitioners. Aggrieved by the orders dated 27.01.2009 and 07.04.2010, the petitioners have approached this Court. By the former order passed by the Civil Judge (JD) Jhunjhunu, the learned Civil Judge had dismissed the T.I. Application filed by the petitioners under Order 39 Rules 1 & 2 read with Section 151 CPC. By the latter order, passed by the Additional District Judge (FT) No.1, Jhunjhunu, the learned Judge had upheld the order dated 27.01.2009 and had dismissed the appeal filed by the petitioners. The brief facts of the case are that the petitioners had instituted a suit for permanent injunction against the defendant-respondent Nos. 3 & 4 before the learned Civil Judge (JD) Jhunjhunu. The petitioners had also moved an application for temporary injunction under Order 39 Rules 1 & 2 read with 2 Section 151 CPC stating therein that the respondents have enmity and malice with the petitioners. Therefore, with the ulterior motive the defendants are raising illegal constructions. They have constructed two big windows towards the house of the petitioners. The said construction has been made without any legal right or authority, and just to disturb the privacy of the petitioners. After service of notice, the defendants filed reply to the T.I. application. Vide order dated 27.01.2009, after hearing the parties, the learned trial court dismissed the T.I. application. Being aggrieved with the order dated 27.01.2009, the petitioners filed an appeal before the Additional District Judge (FT) No.1, Jhunjhunu. However, vide order dated 07.04.2010 the learned Judge dismissed the said appeal. Hence, this petition before this Court. The learned counsel for the petitioners has contended that both the Courts below have failed to consider the fact that the open space in front of the house of the petitioners was used by the ladies of the petitioners' family. Therefore, the opening of the windows by the defendant is in violation of their sense of privacy. Moreover, both the Courts below have relied upon the Commissioner's report and given a finding that the open space between the house of the petitioners and the respondents happens to be a public way. However, such a finding has been given without recording any evidence. Therefore, such a finding would certainly come in the way of the 3 petitioners, during the course of trial. Thirdly, the Courts below did not assign any cogent reason for dismissing the T.I. application. Heard the learned counsel for the petitioners and perused the impugned orders as well as the Commissioner's report which was submitted before this Court by the counsel himself. A bare perusal of the order dated 27.01.2009 clearly reveals that two windows, which are subject matter of dispute, have not been constructed on the ground floor. But, they have been constructed on the first floor of the building. Therefore, the contention of the petitioners, in the plaint, that the construction of the said windows creates an obstacle for them to bring the camel cart in, is without any foundation. Moreover, the learned Judge has clearly noticed that in the T.I. application, the petitioners did not spell out as to how the privacy of their family is being disturbed by the construction of the two windows. According to the learned counsel, the ladies of the petitioners' family normally work in the open space which is situated between the two houses. Therefore, with the construction of the windows, their privacy is being disturbed. Considering the fact that according to the Commissioner's report, the area is an open space, considering the fact that women who step into the open space, who can be seen by the public, such women can hardly claim that their right of privacy is being disturbed. Therefore, 4 the contention that the opening of the two windows would disturb their right of privacy is without any foundation. The second contention that the finding which has been given while rejecting the T.I. application would adversely affect the outcome of the trial, such a contention is also without any foundation. After all, an observation made by the learned trial Court, and although confirmed by the appellate Court, even then, such an observation would not bind the decision of the learned trial Court. For, a case has to be adjudged on the basis of the evidence which is marshalled out during the course of trial. At best, the observations made by the learned trial Court are made on “a prima facie” basis, and not after the recording of the evidence. Therefore, the anxiety of the petitioners is clearly unfounded. A bare perusal of both the impugned orders clearly reveals that the learned Courts below have given cogent reasons for dismissing the T.I. application. Therefore, this Court does not find any illegality or perversity in either of the two impugned orders. Hence, this petition is devoid of any merit; it is, hereby, dismissed. (R.S.CHAUHAN)J. A.Asopa/-