1. Heard Sri Brijesh Kumar Kuldeep, learned counsel for the petitioner.
2. This petition has been filed for setting aside the impugned order dated 14.4.2021 passed by Additional District Judge, Court No. 4 Shrawasti in Misc. Civil Appeal No. 9 of 2019 (Ayodhya Prasad and others Vs. Mayaram).
3. The submission of the learned counsel for the petitioner is that the order of status quo granted by the trial court on the application filed under Order XXXIX Rule 1 and 2 C.P.C. has been set aside without considering that the petitioner has no other way of exit from his house and the land in dispute is liable to be preserved during pendency of the petition. In support of his submission learned counsel for the petitioner has relied upon decision of this Court in Paras Nath Singh Vs. Smt. Saritaji Kunwari and another, 2012 (30) LCD 978 and decision of Hon'ble Supreme Court in Maharwal Khewaji Trust (Regd.) Faridkot Vs. Baldev Dass, 2005 (23)LCD 298 .
4. Having considering the submission of learned counsel for the petitioner and on perusal of the records this Court finds that the petitioner has filed a suit for permanent injunction against the opposite parties claiming that land in dispute marked as Aa, Ba, Sa, Da in the site plan appended to the suit is only way of exit from his house and the defendants in the suit, who are opposite party nos. 2 and 3 in the present petition are trying to raise construction. Considering the same an interim injunction of status quo was granted by the trial court. Misc. Civil Appeal No. 9 of 2019 (Ayodhya Prasad and others Vs. Mayaram) was filed by the opposite party nos. 2 and 3.
5. The appellate court found that the site plan submitted by the petitioner in suit is not correct, as in the site plan submitted by the defendants before the trial court a public way has been shown, which is in front of the vacant land of the petitioner, which is available for the petitioner for exit. The defendants i.e. opposite party nos. 2 and 3 in the present petition have purchased the land from Vyas Jee, the part of which is on the land in dispute. The appellate court also found that though in order passed by the trial court a finding has been recorded that the defendants have purchased the land from Vyas Jee but no finding has been recorded as to whether the land is part of the land in dispute or not. The appellate court also found that the petitioner has filed the suit without following the statutory provision as contained in Section 91 (B) of the C.P.C. and Order I Rule 8 of the C.P.C. Accordingly, appellate court found that the trial court has passed the order, which is not sustainable in the eye of law and accordingly, set aside the order.
6. This Court also found that there is difference in the site plan filed by the petitioner and the opposite parties. Perusal of the site plan filed by the opposite parties there is a khadanja road in front of vacant land of petitioner and the land in dispute is on the east side of petitioner's land, parallel to khadanja road. The petitioner has not raised any dispute to the site plan submitted by the defendants i.e. the respondents. Therefore, an exit is available to the petitioner and the case of the defendant i.e. the opposite parties is also that land in dispute was never a public way.
7. In the case of Paras Nath Singh Vs. Smt. Saritaji Kunwari and another, (Supra), it has been held that It is well settled that the purpose of grant of interim order or temporary injunction or any other interlocutory order is basically to preserve the suit property and to preserve the state of affair so as to avoid any irreparable loss or injury to the parties in the suit during the pendency of the case.
8. The Hon'ble Supreme Court, in the case of Maharwal Khewaji Trust (Regd.) Faridkot Vs. Baldev Dass (Supra), has held that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings.
9. The petitioner has sought the interim injunction on the basis of wrong facts and he has an exit available in front of his house. Therefore prima facie case is not found of petitioner and it can not be said that there is any irreparable loss or damage to the petitioner. Accordingly balance of convenience is also not in favour of petitioner. Therefore he is not entitled for any benefit of aforesaid case laws.
10. In view of above this Court is of the view that there is no illegality or error in the impugned order. The petition is misconceived and lacks merits. It is liable to be dismissed.
11. The petition is, accordingly, dismissed.
................................................ (Rajnish Kumar,J.) Order Date :- 12.8.2021 Anuj Singh