Bant Singh vs Labh Singh

Ram Chand Gupta, J.

CM No. 30282-CII of 2011

The application is allowed subject to just exceptions.

CM No. 30283-CII of 2011 Requests for placing on record documents Annexures A1 to A3. The same are taken on record subject to just exceptions. CM stands disposed of.

CR No. 5519 of 2011

Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside impugned order dated 03.11.2010, Annexure P6 passed by learned Additional District Judge, Patiala allowing the appeal filed by respondent-plaintiff against order dated 20.10.2009 passed by learned Additional Civil Judge (Senior Division), Patiala declining request of respondent-plaintiff for ad-interim injunction order. I have heard learned counsel for the parties and have gone through the whole record including both the orders passed by learned courts below.

Brief facts relevant for the decision of present revision petition are that, respondent-plaintiff filed a suit for specific performance of agreement to sell dated 01.10.2007 allegedly executed by petitioner defendant in his favour regarding the land in dispute. Alongwith the plaint, an application under Order 39 Rules 1 and 2 of CPC (for short ''the CPC) was filed seeking injunction against the present petitioner defendant.

On notice being issued, written statement as well as reply to the application was filed by petitioner-defendant taking the plea that possession of the land in dispute was handed over by the present petitioner-defendant to respondent-plaintiff at the time of execution of lease deed dated 27.06.2007, Ex.P1 for the period from 27.06.2007 to 20.10.2007 on Chakota for the said period and that he did not agree to sell the land in dispute to respondent plaintiff. Further plea is that after expiry of said period, possession was taken by the present petitioner-defendant and since then he is in cultivating possession of the same. He denied execution of the agreement to sell on which reliance has been placed by respondent-plaintiff. Learned trial Court vide order dated 20.10.2009 came to the conclusion that no prima facie case is made out in favour of respondent-plaintiff and balance of convenience also not in his favour and hence, the application of respondent-plaintiff for adinterim injunction order was dismissed. On appeal being filed by respondent plaintiff the said order was reversed and the application was allowed by learned Additional District Judge, Patiala.

Preliminary objection was taken by the present petitioner defendant that the order passed by learned Additional District Judge, Patiala is illegal as finding recorded by learned trial Court has been reversed by learned Additional District Judge without giving any finding regarding prima facie satisfaction for granting ad-interim injunction order on basis of material on the record. It has also been contended that there is no finding that an irreparable loss would also be caused to respondent-plaintiff if ad-interim injunction order is not granted. Hence, it is contended that law is well settled that for deciding an application filed under Order 39 Rules 1 and 2 CPC appellate Court should record the finding regarding prima facie satisfaction and the trial Court has erred in coming to the conclusion that no prima facie case is made in favour of respondent-plaintiff. However, no such finding was given by learned appellate Court and hence, it is contended that the impugned order cannot be sustained in the eyes of law and that the matter is required to be remanded to learned appellate Court for giving finding on the said point and then to decide the appeal afresh. He has also placed reliance upon judgment rendered by Hon''ble Apex Court in Sree Jain Swetambar Terapanthi Vid.(S) Vs. Phundan Singh and Others, . He has also contended that jurisdiction under Order 39 Rules 1 and 2 read with Section 151 CPC is discretionary in nature and that law is well settled that appellate Court can interfere in the order passed by learned trial Court in this regard if it is shown that the order suffers from clear violation of law or where the findings recorded by learned trial Court on the prima facie satisfaction and balance of convenience or on irreparable injury, are perverse. On the point, he has placed reliance upon judgment of this Court rendered in Maman Chand Vs. Smt. Kamla,

On the other hand, it has been argued by learned counsel for respondent-plaintiff that petitioner-defendant has himself taken stand in his statement in criminal proceedings, Annexure A2 that respondent-plaintiff failed to handover possession of the land in dispute to him as per the terms of agreement dated 27.06.2007. Hence, it is contended that technicalities should not come in the way of respondent-plaintiff and that respondent plaintiff cannot be made to suffer if proper order was not passed by learned appellate Court.

A careful perusal of Phundan Singh''s case (supra) shows that the Court while granting ad-interim injunction order has to record his prima facie satisfaction on merit. Relevant paragraph reads as under:-

It may be pointed out that it is one thing to conclude that the trial court has not recorded its prima facie satisfaction on merits but granted the temporary injunction and it is another thing to hold that trial court has gone wrong in recording the prima facie satisfaction and setting aside that finding on the basis of the material on record because it has not considered the relevant material or because it has erroneously reached the finding or conclusions on the facts established. In the first situation, the appellate court will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a contrary finding. The High Court proceeded to set aside the order of the trial court on the first ground ignoring the aforementioned findings of the trial court, the order under appeal is, therefore, unsustainable.

Law is also well settled that scope of jurisdiction of appellate Court to interfere with an order passed by the trial Court on an application filed under Order 39 Rules 1 and 2 read with Section 151 CPC is very limited and that appellate Court can interfere in the discretion exercised by the trial Court in this regard only when the order suffers from clear violation of law or where the findings recorded by learned trial Court on the issues of prima facie case, balance of convenience and irreparable injury, are perverse or where the trial Court has not applied the settled principles of law for appreciation of the pleadings and evidence produced by the parties. On the similar facts, order passed by learned appellate Court was set aside by this Court while passing detailed order in Maman Chand''s case (supra). Relevant paragraphs read as under:-

Scope of the jurisdiction of an appellate Court to interfere with an order passed by the trial Court on an application filed under Order 39 Rules 1 & 2 read with Section 151, CPC, is well settled. The Supreme Court and the High Courts have consistently held that the appellate Court can interfere with an order of the trial Court only where such order suffers from clear violation of law or where the findings recorded by the trial Court on the issues of prima facie case, balance of convenience and irreparable injury are perverse or where the trial Court has not applied the settled principles of law for appreciation of the pleadings and evidence produced by the parties. The Courts have further held that a mere possibility of the appellate Court forming a different opinion on the basis of the facts and evidence produced by the parties cannot be a valid ground for interference by the appellate Court.

In Guru Nanak Education Trust v. Balbir Singh and others, 1995(3) R.R.R. 722 (721) (P&H), C.R. No. 4007 of 1994, decided on 18.4.1995, this Court has dealt with the aforementioned issue on some length and held :-

The order refusing temporary injunction is of a discretionary character. Ordinarily court of appeal will not interfere with the exercise of discretion by the trial Court and substitute for it its own discretion. The interference with the discretionary order, however, may be justified if the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all the records.

The mere possibility of the appellate court coming to a different conclusion on the same facts and evidence will also not justify interference.

Perusal of the impugned order shows that the learned District Judge, Bhiwani, was totally unmindful of the settled legal position regarding the scope of Jurisdiction of the appellate Court while deciding the appeal against the order of the trial Court passed under Order 39 Rules 1 and 2. Learned District Judge has failed to keep in mind the fundamental principle that the appellate Court can interfere with an interlocutory order of the trial Court only when it is shown to be patently illegal or perverse. The learned District Judge has not held that the order of the trial Court rejecting an application for injunction filed by the plaintiff-respondent, suffers from error of law or is based on misreading of the pleadings and evidence. In my opinion, the learned District Judge has acted as a Court in the first instance instead of acting as an appellate Court. This fundamental error in the approach of the learned District Judge has resulted in miscarriage of justice. The learned District Judge has acted in excess of his jurisdiction and, therefore, this Court is duty bound to interfere with the order of the learned -District Judge.

In view of this legal background, perusal of impugned order passed by learned Additional District Judge, Patiala shows that the court has not recorded its satisfaction regarding the fact that prima facie case is made out in favour of respondent-plaintiff, balance of convenience is also in his favour and an irreparable loss would be caused to respondent-plaintiff if adinterim injunction order is not granted. Learned first appellate Court has also not given finding that observation of the trial Court that no prima facie case is made out in favour of respondent-plaintiff and that he will not suffer irreparable loss if ad-interim injunction is not granted, are perverse and wrong and not based on facts. Hence, in view of these facts, there is force in the argument of learned counsel for petitioner-defendant that the impugned order passed by learned Additional District Judge, Patiala cannot be sustained in the eyes of law.

Hence, in view of aforementioned facts, the present revision petition is accepted and the impugned order passed by learned Additional District Judge, Patiala being illegal is set aside.

Learned Additional District Judge, Patiala is directed to decide the appeal afresh on merit and pass fresh orders after hearing both the parties in the light of observations made by this Court above.

Both the parties are directed to appear before learned Additional District Judge, Patiala on 23.01.2012. Learned Additional District Judge, Patiala is also directed to make efforts to decide the appeal on merits within one month thereafter.