SBCWP No.7116/2008 Champalal Vs.Mahendra Singh & Ors. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ::: ORDER Champalal vs. Mahendra Singh & Ors. S.B. Civil Writ Petition No.7116/2008 under Article 226 of the Constitution of India. DATE OF ORDER :: 9.1.2009 PRESENT HON'BLE MR. PRAKASH TATIA, J. REPORTABLE Mr.Rakesh Arora, for the petitioner. Mr. KC Samdariya, for the respondent. <><><> BY THE COURT: Heard learned counsel for the parties. The petitioner is aggrieved against the order of injunction granted by the trial court dated 20.8.2008 and which was upheld by the first appellate court vide order dated 6th Sept., 2008. According to learned counsel for the petitioner- defendant that the defendant also submitted application for grant of injunction and that has not been considered by the SBCWP No.7116/2008 Champalal Vs.Mahendra Singh & Ors. 2 courts below nor that has been rejected and thereby both the courts below committed serious error of law as well as error of jurisdiction. It is also submitted that the courts below have not considered the case of the petitioner- defendant. It is also submitted that plaintiff in his injunction application prayed only for relief of maintaining status quo, yet the trial court granted the injunction that the petitioner-defendant shall not interfere in peaceful possession and the business of the plaintiff-respondent. Learned counsel for the petitioner vehemently submitted that the respondent had his shop near private bus stand whereas the shop in dispute is situated near the Roadways Bus Stand. The plaintiff in the garb of this injunction order wants to take possession of the ownership shop of the defendant-petitioner. It is also submitted that at the time when the site was inspected by the Commissioner appointed by the court, the counsel for the plaintiff tried to influence the Commissioner and asked him to give report in favour of the plaintiff and submitted the map prepared by the counsel for the plaintiff, upon which another Commissioner was appointed. The Second Commissioner SBCWP No.7116/2008 Champalal Vs.Mahendra Singh & Ors. 3 submitted report on next day on 20th Dec., 2007 wherein also the Commissioner only reported that there is serious dispute with respect to the possession of the shop in dispute and large public gathered on the spot and police is also present there. The police, therefore, put look over the shop in dispute looking to the situation. In this way, according to learned counsel for the petitioner, the respondent-plaintiff could not get the possession and presently the shop is locked by the police. Learned counsel for the petitioner vehemently submitted that the documents, which have been placed on record by the plaintiff clearly show that his shop was never in the defendant's-petitioner's premises and it was situated at the place shown by the defendant in the sketch map filed alongwith the reply to the temporary injunction application and copy of which at page no.66 of the writ petition. Learned counsel for the petitioner also referred the documents produced by the plaintiff wherein the address of the plaintiff's shop has been shown near “Private Bus Stand”. Learned counsel for the petitioner was asked to show SBCWP No.7116/2008 Champalal Vs.Mahendra Singh & Ors. 4 and explain whose business was in the shop in dispute, Photographs of which has been placed on record by the plaintiff (record of the Civil Original Suit Misc. Case No.67/2007 was summoned wherein number of Photographs, Commissioner reports and other documents are there), but according to learned counsel for the petitioner the courts have not considered those documents in correct perspective. It is submitted that in the shop the business of the petitioner was running and also submitted that these photographs are not of the shop in dispute and also submitted that the photographs are of a older time and the plaintiff Mahendra Singh has not been shown in the photographs. Learned counsel for the respondent vehemently supported the orders impugned. So far as contention of learned counsel for the petitioner that the courts below exceeded their jurisdiction in passing the specific order against the petitioner restraining him from interfering the possession and business of the plaintiff is concerned, is based on absolutely erroneous fact position. The plaintiff in his plaint as well as SBCWP No.7116/2008 Champalal Vs.Mahendra Singh & Ors. 5 in the application for grant of injunction very categorically and specifically prayed for injunction against the defendant by specifically pleading that his business in the name of Shyama Radio Service is running in the shop and defendant want to forcibly dispossess the plaintiff from the said premises and, therefore, he may be restrained from interfering in possession of the plaintiff and also be restrained from putting any obstruction. Otherwise also, it is the duty of the court while considering the matter of grant of injunction to consider all the facts and thereafter, grant the relief even in a case where only relief to maintain status quo is prayed by the plaintiff or the defendant in application for grant of injunction. Therefore, the injunction order is required to be granted according to the facts of the case and parties cannot be left to decide the meaning of the status quo on the spot by use of their might. Even if after pleading that one is in possession prays for status quo and the court grants injunction to maintain the status quo then it is required to be read in the context in which the relief has been granted. No one will plead that other party is in possession and, therefore, injunction be granted to maintain SBCWP No.7116/2008 Champalal Vs.Mahendra Singh & Ors. 6 the status quo. In view of the above reason, both the orders passed by the two courts below granting specific order restraining the petitioner from interfering in the possession of the plaintiff cannot be said to be passed by the court by exceeding jurisdiction. The contention of petitioner that his injunction application has not been considered by the two courts below is also bereft of any force. When there are counter applications for grant of injunction, the court is required to decide the issue by one order and should not pass separate orders so as to cerate more confusions. The granting of specific injunction in favour of one party amounts to denial of injunction or relief to other party and because of some defect in writing order, the writ jurisdiction cannot be exercised to alter the order, which appears to be legal nor the matter can be sent to the court below only for the purpose of re-writing the order. It will be worthwhile to mention here that there is a concurrent finding of two courts below with respect to possession of the respondents over the shop in dispute. The documents, which have been placed on record have been considered by the two courts SBCWP No.7116/2008 Champalal Vs.Mahendra Singh & Ors. 7 below and, thereafter, the two courts below reached to the conclusion that the plaintiff's business was running in the shop in dispute. The fact has come on record that the disturbance has been created on the spot and the Commissioner could not give the report about the possession of the party at the time of filing of the suit by the plaintiff but absence of that report is not material in the facts of the case as prima facie, from the Photographs the goods lying in the shop with plaintiff's pleas and supporting documents and defendant's vague and ambiguous stand clearly proves the plaintiff possession and business in the shop. The Commissioner in its report of 20th Dec., 2007 clearly mentioned that the shop is full with the electric goods and there were so many persons collected on the spot and Police also came there. The Photographs shows that there is well arranged goods lying in the shop in huge quantity. There is also paint “Shyama Radio Service” over the shutter of the shop. The petitioner when asked to show and explain the situation in which such large quantity of goods could have been in the shop, if it is a case of forcible entry of the plaintiff in the shop, then learned counsel for SBCWP No.7116/2008 Champalal Vs.Mahendra Singh & Ors. 8 the petitioner submitted that the petitioner's son's shop was adjoining and is also connected with the shop in question and defendant's goods were lying in the shop and presently, the shop is used as godown. Prima facie said contention of the petitioner is just contrary to the situation which is apparent from the so many photographs placed on record, which has been perused by this Court. Be it as it may be, this is not the appellate jurisdiction of the court and even if it would have been appellant court's jurisdiction, this Court even as the appellate court would not have interfered in the order passed by the trial court because the order has been passed after appreciation of the facts of the case as well as documents. At the cost of repetition, it is submitted that non-mentioning of rejection of the application of the petitioner for grant of injunction in his favour is concerned, it is immaterial. It will also be worthwhile to note here the submissions of learned counsel for the respondent who pointed out that in memo of appeal before the first appellate court, the petitioner himself admitted that both the applications have been decided by the trial court. SBCWP No.7116/2008 Champalal Vs.Mahendra Singh & Ors. 9 Learned counsel for the petitioner submitted that since presently the shop is under the lock of the police, therefore, the order may be altered and the locks of police may be continued till the suit is decided and trial court may be directed to decide the suit expeditiously. After going through the two Commissioners' report and the photographs and the relevant facts and business of the plaintiff, I do not find that there may be any justification for allowing to keep the locks of the police over the shop. Instead the fact cannot be taken lightly that two courts below have found that the petitioner has no right to interfere in the possession and business of the plaintiff- respondent in the shop in question. Thus, prima faice findings cannot be disturbed and the relief granted by the two courts below cannot be denied to the plaintiff merely because there is intervention of the police. Therefore, the prayer is rejected. Hence, the writ petition of the petitioner is dismissed. (PRAKASH TATIA), J. c.p.goyal/-