Ashok Kumar & Others vs Pramil Kumar & Others

Manoj K. Tiwari, J

This is plaintiffs' petition against the order dated 20.08.2019 passed by learned appellate court in Miscellaneous Civil Appeal No. 1 of 2019, filed under Order 43 Rule 1(r) of C.P.C., whereby order of status quo passed by learned trial court has been set aside.

Grant of temporary injunction is discretionary and the appellate court will not interfere with the exercise of discretion of court of first instance except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. This aspect has been dealt with by Hon'ble Supreme Court in the case of Esha Ekta Appartments CHS Limited & others Vs Municipal Corporation of Mumbai & another reported in (2012) 4 SCC 689. Para 19 & 20 of the said judgment are reproduced below:-

"19. We have considered the respective submissions and carefully scrutinized the record. The scope of the appellate Court's power to interfere with an interim order passed by the Court of first instance has been considered by this Court in several cases. In Wander Ltd. v. Antox India (P) Ltd 1990 Supp SCC 727, the Court was called upon to consider the correctness of an order of injunction passed by the Division Bench of the High Court which had reversed the order of the learned Single Judge declining the respondent's prayer for interim relief. This Court set aside the order of the Division Bench and made the following observations:

"In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."

In Skyline Education Institute (India) Pvt. Ltd. v. S.L. Vaswani (2010) 2 SCC 142, the 3-Judge Bench considered a somewhat similar question in the context of the refusal of the trial Court and the High Court to pass an order of temporary injunction, referred to the judgments in Wander Ltd. v. Antox India (P) Ltd (supra), N.R. Dongre v. Whirlpool Corpn. (1996) 5 SCC 714 and observed:

"The ratio of the abovenoted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity.""

It is thus apparent that scope of interference by learned appellate court with learned trial court's order on temporary injunction application is limited. If two views are possible, then the view taken by learned trial court has to be maintained.

I have gone through the order passed by learned appellate court impugned herein. No valid reason has been assigned by learned appellate court for disturbing the discretionary order passed by learned trial court.

Hon'ble Supreme Court in the case of Maharwal Khejwaji Trust (Regd.) Faridkot Vs Baldev Dass reported in (2004) 8 SCC 488 has held that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit a change of the said status quo, which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. It has further been held that in any event, it is always open to the parties to claim damages if the case of the party pleading a maintenance of status quo is ultimately found to be baseless or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard.

In the present case, the dispute is regarding a passage 7.5 ft. in width. Plaintiffs (petitioners herein) apprehend that the defendants (respondents herein) will increase the height of the passage by laying concrete, which will result in water logging in the adjoining plots belonging to the plaintiffs and will also block the drain.

Learned trial court, after considering all the three factors i.e. prima facie case; balance of convenience & irreparable loss directed the parties to maintain status quo vide order dated 11.12.2018. A perusal of the order passed by learned trial court indicates that learned trial court was justified in directing the parties to maintain status quo in order to maintain and preserve the property. Thus, learned appellate court was not justified in interfering with the discretionary order passed by learned trial court.

Accordingly, the writ petition is allowed. The order passed by learned appellate court is set aside.

Learned counsel for the parties give undertaking on behalf of their clients that nature of the passage will not be changed during pendency of the suit. Learned trial court is directed to decide the suit as expeditiously as possible, without granting any unnecessary adjournment to the parties.