HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 16320/2023 1. Mahadev S/o Shri Mangalram, Resident Of Dhani Teeba Wali, Tan Geeglana, Tehsil Neemrana, District Alwar (Raj.) 2. Om Prakash S/o Shri Sardar Singh, Resident Of Dhani Teeba Wali, Tan Geeglana, Tehsil Neemrana, District Alwar (Raj.) 3. Ramkumar S/o Shri Mularam, Resident Of Dhani Teeba Wali, Tan Geeglana, Tehsil Neemrana, District Alwar (Raj.) 4. Amilal S/o Shri Mularam, Residnet Of Dhani Teeba Wali, Tan Geeglana, Tehsil Neemrana, District Alwar (Raj.) 5. Sube Singh S/o Vishambhar Dayal, Resident Of Dhani Teeba Wali, Tan Geeglana, Tehsil Neemrana, District Alwar (Raj.) ---Defendants-Petitioners Versus Bhagwana S/o Shri Mangalram, Resident Of Dhani Teeba Wali, Tan Geeglana, Tehsil Neemrana, District Alwar (Raj.) ----Respondent-Plaintiff For Petitioner(s) : Mr. Gaurav Gupta, Adv. For Respondent(s) : Ms. Aradhna Swami, Adv. HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Order 06/03/2025 The instant petition has been filed by the petitioners- defendants (for short ‘the defendants’) against the order dated 10.08.2023 passed by the Senior Civil Judge & Additional Chief Judicial Magistrate No.2, Behror, District Alwar (for short ‘the trial court’), whereby the trial court dismissed the application under Section 151 CPC and application under Order 26 Rule 9 CPC filed by the defendants. (2 of 3) [CW-16320/2023] Learned counsel for the defendants submits that the respondent-plaintiff (for short ‘the plaintiff’) filed a civil suit for permanent injunction along-with application for temporary injunction against the defendants in which the trial court directed both the parties to maintain status quo over the disputed property till disposal of the suit. After passing of the status quo order, plaintiff put the tin-shed on the disputed property and raised construction of the boundary wall. Learned counsel for the defendants further submits that the defendants filed an application before the trial court under Section 151 CPC for restoring the position of property in question and also filed an application under Order 26 Rule 9 CPC read with Section 151 CPC for appointment of the site Commissioner to bring the factual position of site on record but the trial court vide order dated 10.08.2023 dismissed the applications filed by the defendants. Learned counsel for the defendants further submits that after passing the stay order, plaintiff had changed the situation/position of the property in question, so it was necessary to bring the latest position of the site on record but the trial court has committed an error in dismissing both the applications. So, the petition filed by the defendants be allowed and the trial court be directed to get procured the factual position of the disputed property on record. Learned counsel for the plaintiff has opposed the arguments advanced by learned counsel for the defendants and submitted that the trial court while dismissing the application filed by the defendants rightly observed that the defendants are free to adjudicate the matter by way of application under Order 39 Rule (3 of 3) [CW-16320/2023] 2A CPC in committing the contempt of court. So, the present petition being devoid of merit, is liable to be dismissed. I have considered the arguments advanced by learned counsel for the defendants as well as learned counsel for the plaintiff. By way of application under Section 151 CPC, the defendants wanted to get restored the position of the disputed property which was existing at the time of passing the stay order. It is an admitted position that the defendants have also filed an application under Order 39 Rule 2A CPC before the trial court. So, in my considered opinion, the trial court had to pass an order on the application under Section 151 CPC at the time of passing the order on the application under Order 39 Rule 2A CPC. So, the order dated 10.08.2023 passed by the trial court deserves to be set-aside. The Civil Writ Petition filed by the defendants is allowed. The order dated 10.08.2023 passed by the trial court is set-aside. The trial court is directed to decide the application filed by the defendants under Section 151 CPC at the time of deciding the application under Section 39 Rule 2A CPC. The trial court is also directed to pass a fresh and separate order regarding application filed by the defendants under Order 26 Rule 9 CPC to bring the latest factual position of the disputed property on record. Pending application(s) if any, also stand(s), disposed of. (NARENDRA SINGH DHADDHA),J Gourav/119