Abdul Karim and Another vs Abdul Sattar

Govind Mathur, J.—To assail validity, propriety and correctness of the order dated 10.10.2007, passed by learned Additional District Judge No.2, Bikaner, this appeal as per the provisions of Order XLIII Rule 1 (r) of the CPC is preferred.

By the order impugned, learned trial court rejected the application preferred by the plaintiff appellants seeking a temporary injunction. Learned trial court held that no temporary injunction of mandatory in nature could have been granted as even in the plaint no prayer has made seeking a mandatory injunction to open the lock of the shop in dispute and to permit the plaintiffs to undergo business peacefully thereon.

It is contended by counsel for the appellants that this Court in Mahaveer Dass v. M/s. Ganeshmal Jeevraj, reported in 1991 CCC 145 (Raj) : 1991(2) RLW 543, held that the Court can decide the application for grant of temporary injunction even though a relief for permanent injunction has not been added in the main suit. It is also contended by counsel for the appellants that the order impugned is bad in eye of law as the trial court failed to consider the documents placed on record, reference of those is given in para 7 of the memo of appeal.

Having considered the arguments of counsel for the appellants and having perused the record, I am satisfied that the order impugned do not suffer from any error warranting interference. In the case of Mahuveer Dass (supra) the Court was dealing with a matter where a temporary injunction was sought to restrain the defendant from changing or materially altering condition of the shop. The Court held that such a temporary injunction could be granted even if no permanent injunction is sought in the main suit.

In the instant matter the plaintiffs are seeking an interim mandatory injunction. Hon''ble Supreme Court in Metro Marins and Another Vs. Bonus Watch Co. Pvt. Ltd. and Others, held that an interim mandatory injunction can be granted only in exceptional cases. In Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, , Hon''ble Supreme Court, while providing guidelines for grant or refusal of interlocutory'' mandatory injunction, held that it shall ultimately rest in sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case.

In the present matter, the trial court found that no specific pleadings were available to the effect that the flour mill in the shop in question was definitely in possession of the plaintiffs. The trial court also considered the documents referred in para 7 of the memo of appeal and found that on perusal of those documents no definite opinion could have been framed. The instant one is not a case having exceptional circumstances where any interlocutory mandatory injunction can be granted.

For the reasons stated above, this misc. appeal fails and, therefore, is dismissed.