// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4544/2008 Bhawani Sahai S/o Shri Roop Narayan Versus Heera Lal S/o Shri Ramhet and Others Date of Order ::: 08.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Rakesh Kumar, Counsel for petitioner Shri H.P. Singh, Counsel for respondent No.1 #### By the Court:- Admit. Heard learned counsel for the parties. The plaintiff-respondent No.1 Heera Lal filed a suit for permanent injunction in respect of disputed way in the trial court against the defendant-petitioner along-with an application for temporary injunction. The trial court, vide its order dated 5th March, 2008, partly allowed the application for temporary injunction and directed that the defendants will not put any obstruction in coming of plaintiff on the disputed way which is passing through Khasra Nos.300 and 301 as per Commissioner's report dated 31st January, 2008. Both the parties were directed to maintain the status-quo over the disputed place also. Being aggrieved with the // 2 // same, the plaintiff preferred an appeal and the first appellate court, vide its impugned order dated 16th April, 2008 also allowed the plaintiff to take his tractor, trolley etc. from the disputed way up-to his agriculture field. The order of status-quo was also passed in the case. The said order of the first appellate court is under challenge in this writ petition preferred on behalf of the defendants. The learned counsel for the petitioner contended that the learned trial court passed a speaking order after referring the Commissioner's report and granted only a limited stay, but the learned first appellate court, without considering the evidence on the record, allowed the plaintiff to bring his tractor, trolley etc. from the disputed way also, therefore, the order passed by the learned appellate court is liable to be set-aside and that of the trial court be restored. The learned counsel for the plaintiff- respondents contended that the first appellate court has considered the evidence placed on the record and only thereafter modified the order of the trial court permitting him to take his tractor, trolley etc. from the disputed way and there is no illegality in the same and the writ petition deserves to be dismissed. // 3 // I have considered the submissions of learned counsel for the parties and examined the impugned orders passed by both the courts below and also the agreement (Annexure-1), the Commissioner's report along-with the site-plan (Annexure-3). From the order of the first appellate court it is clear that it has not considered any documentary evidence including the affidavits alleged to have been filed by the parties in support of their applications for temporary injunction and reply thereto while deciding appeal. The learned counsel for the respondents referred two affidavits which, according to him, were filed before the first appellate court. The contents of the said affidavits were not part of the record of the trial court nor there is any reference thereof in the impugned order dated 16th April, 2008 passed by the first appellate court. The order passed by the first appellate court is not a speaking order and the same cannot be allowed to be sustained. Consequently, the writ petition is allowed. The impugned order dated 16th April, 2008 passed by the Additional District No.1, Alwar, is set-aside and the said Court is directed to decide the appeal again on merits after hearing the parties and considering the // 4 // evidence i.e. affidavits or any other documentary evidence, which has been placed on the record by the parties by a speaking order. Both the parties are directed to appear before the Additional District Judge No.1, Alwar, on 28th July, 2008. There will be no order as to costs. (Narendra Kumar Jain) J. //Jaiman//