-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Miscellaneous Application No.30 of 2009 IN S.B. Civil Writ Petition No.631 of 2009 Chainsingh son of late Shri Himmat Singh VERSUS The Civil Judge (Senior Division) Alwar & Others Date of Judgment :::: April 30th, 2010 Hon'ble Mr. Justice Dalip Singh Mr. Manu Bhargava, Counsel for the applicant/petitioner Mr. N.A. Naqvi, A.A.G. and Mr. J.P. Goyal, Counsel for the non-applicant/respondents *** By the Court : This miscellaneous application has been filed by the applicant-petitioner on account of the fact that earlier S.B. Civil Writ Petition No.631 of 2009 (Chainsingh Vs. The Civil Judge (Senior Division) Alwar & Others), which was filed before this Court against the interim order of temporary injunction dated 06.11.2008 was disposed of by this Court with the following directions : “Having heard the learned counsel, it is directed “that the learned trial Court shall hear and dispose of the application for temporary injunction on the next date fixed. -2- In case, the application is not heard and decided either at the instance of the Court or the opposite party, it would be open for the petitioner to make a request to this Court for stay of the order dated 06.11.2008”. The aforesaid order dated 22.01.2009 was passed by this Court. The petitioner filed the same before the learned trial Court, along with an application on 27.01.2009 drawing attention of the learned trial Court to the order dated 22.01.2009 passed by this Court. The date already fixed before the learned trial Court was 29.01.2009. On the said date, as per the submission of the learned counsel for the applicant-defendant against whom ex-parte inteirm order of temporary injunction dated 06.11.2008 was in-operation the learned counsel for the applicant-defendant requested the Court to hear the arguments on the application for grant of temporary injunction and decide the same as directed by this Court. However, as per the case of the applicant the learned trial Court instead of deciding the matter on the same date, as directed by this Court, adjourned the same to 17th February 2009. Since, this Court while passing the order dated 22.01.2009 had granted liberty to the applicant-petitioner to approach this Court, in case, the matter is not heard on the application for the grant of temporary injunction to make a request to this Court for revival of the writ petition -3- and stay of the ex-parte stay order dated 06.11.2008, the present application has been filed by the applicant- defendant. The matter came up before this Court on the present application on 16.02.2009 and after hearing the counsel for the petitioner, this Court passed the following order : This application has been filed on the ground that despite the order dated 22.01.2009, the learned trial court did not hear and decide the application for the grant of temporary injunction “on the next date fixed” i.e. 29.01.2009, as directed by this court and case was adjourned to 17.02.2009. It is submitted by the learned counsel for the petitioner that despite the above order disposing of the writ petition, passed by this court, against the ad interim ex-parte order dated 06.11.2008 by which the petitioner had been restrained from carrying out the business of marriage lawn on the land in dispute and despite the petitioner having filed reply to the temporary injunction application, the learned trial court was not hearing the matter and the ex-parte ad interim order was causing great hardship to the petitioner who had taken the bookings for the marriage lawn. Even the other defendants had filed a suit earlier which had been dismissed by the competent court and this fresh suit has been filed at the instance of some other persons for the similar relief. Learned counsel for the petitioner submits that despite the aforesaid order of this court directing the learned trial court to decide the application for grant of temporary application “on the next date fixed”, the learned trial court did not decide the application on 29.01.2009 but instead adjourned the case to 17.02.2009. It is submitted that even if some time was required to accommodate the opposite party, the matter could have been fixed for a shorter period as the -4- marriage season with the auspicious dates has already commenced w.e.f. 14.02.2009 and the ad interim ex-parte order dated 06.11.2008 is causing great inconvenience to the petitioner as well as the persons who have booked the marriage lawn. I have heard learned counsel for the petitioner and perused the order dated 22.01.2009 and I find that this court while disposing of the writ petition has granted permission to the petitioner that in case the case is adjourned and not heard on the next date, it would be open for the petitioner to make a request to this court for staying the operation of the order dated 06.11.2008. I have perused this misc. application, the order dated 22.01.2009, which has been filed as Annexure-2 and the application which was submitted by the petitioner before the learned trial court on 27.01.2009 along with a copy of the order of this court. Issue notice to the respondents. Meanwhile, the operation of the order dated 06.11.2008 passed by the learned trial court on the misc. application under Order 39 Rule 1 and 2 C.P.C. shall remain stayed. It is, however, directed that (i) the petitioner shall ensure that the parking of the vehicles is done in an orderly manner so that free flow of traffic on the main road is not obstructed, for this purpose security staff will be engaged by the petitioner for carrying out parking in a proper manner; (ii) the petitioner shall ensure that the use of loud speakers is not permitted beyond 10:00 PM; and (iii) the petitioner shall ensure that whatever wastage of food, etc., is there, is disposed of in a proper manner by paying the requisite charges to the Municipal Council, Alwar so that no nuisance or unhygienic conditions occurs in the locality on this account. It may also be stated here that the matter came up before the learned trial Court after the order of this -5- Court dated 22.01.2009, on 29.01.2009 and the learned trial Court adjourned the case passing the following order : ''29/1/09 प¢कारान ौी नंदलाल शमा[ क.िल.न.प. कȧ ओर से चैनिसंह, ǒवबमिसंह उप0 आये। िलǔखत बहस ूितवादȣगण ने पेश कȧ। नकल Ǒदलाई गई। पऽावली आगामी काय[वाहȣ हेतु Ǒदनांक 17.02.2009 को पेश हो। तबतक पूव[ का आदेश ूभावी रहेगा।'' The case of the petitioner is that the petitioner was willing to argue the matter, but the learned trial Court thought it fit to adjourn the case for 17.02.2009 and as would be seen from the order-sheet dated 29.01.2009 despite the fact that the order passed by this court had been brought to the knowledge of the learned trial Court the adjournment was granted for nearly three weeks and the stay order continued. In these circumstances, when the matter came up before this Court, this Court passed the above order dated 16.02.2009, staying the operation of the order dated 06.11.2008 and imposing certain conditions on the petitioner for running the marriage garden, as in the plaint the main thrust of the plaintiffs was in respect of parking and obstruction of the road and on account of the use of loud speakers and consequential pollution causing disturbance to the residents of the locality in causing -6- inhygienic conditions as well as causing nuisance by disposal of waste nearby. Since, these were the grievances of the petitioner in the suit, this Court took care of passing necessary orders imposing conditions in that behalf while staying the operation of the order of temporary injunction dated 06.11.2008 and maintaining equity between the parties permitting the petitioner to run the marriage garden subject to the conditions imposed in the order dated 16.02.2009. Learned counsel appearing for the respondents, on the other hand, contended that the matter may now be permitted to be decided by the learned trial Court on merits and till such time the learned trial Court decides the application for the grant of temporary injunction the interim order passed by this Court on 16.02.2009 may be ordered to be continued. In the facts and circumstances, I deem it just and proper to direct that the learned trial Court would be free to decide the application for the grant of temporary injunction, though no such restraint order had been passed by this Court against the learned trial Court under the order dated 16.02.2009 not to decide the application for the grant of temporary injunction. The aforesaid clarification is accordingly made in the order. It is further directed that till such time the application for the grant of temporary -7- injunction is decided by the learned trial Court the interim arrangements made by this Court under the order quoted here-in-above shall continue. This miscellaneous application is accordingly allowed and disposed of as above. (Dalip Singh), J. Ashok/