Bhupender Kumar vs Raj Kumar & Others

Ajay Mohan Goel, J

By way of this petition, filed under Article 227 of the Constitution of India, the petitioner has assailed order dated 05.11.2022 (Annexure P­8), passed by the Court of learned District Judge, Bilaspur, District Bilaspur, H.P., in Civil Miscellaneous Appeal No.14/14 of 2022, titled as Raj Kumar & others vs. Bhupender Kumar, in terms whereof, the learned Appellate Court allowed the appeal filed by the respondents herein under Order 43, Rule 1(r) of the Code of Civil Procedure, which was filed by the respondents feeling aggrieved by the order passed by the learned Trial Court in an application filed under Order 39, Rule 1 and 2 of the Code of Civil Procedure by the petitioner herein.

Brief facts necessary for the adjudication of the present petition are that the petitioner/ plaintiff (hereinafter to be referred as ‘plaintiff’) has filed a suit for permanent prohibitory injunction as well as mandatory injunction against the respondents/defendants, which is pending adjudication before the learned Trial Court. Alongwith the suit, an application under Order 39, Rule 1 and 2 of the Code of Civil Procedure was preferred by the plaintiff, which was allowed by the learned Trial Court in terms of order dated 29.06.2022. The appeal filed against the same by the respondents herein was allowed by the learned Appellate Court on 05.11.2022, which has resulted in filing of this petition.

Having heard Mr. Bhupender Gupta, learned Senior Counsel for the petitioner and Mr. Bhupender Ahuja, learned counsel for the respondents, this Court is of the considered view that the order passed by the learned Appellate Court is not sustainable in the eyes of law, for the reason that while deciding the appeal, learned Appellate Court has ventured far beyond the scope of Order 43, Rule 1 of the Code of Civil Procedure.

While adjudicating an application filed under Order 39, Rule 1 and 2 of the Code of Civil Procedure, the Court has to see as to whether their exists a prima facie case in favour of the party, whether balance of convenience is in favour of the party and whether irreparable loss would be caused to the party in case interim relief, as prayed for, is not granted. If the Court is satisfied that these three ingredients exist, then appropriate orders are passed by the Court, otherwise the application is rejected.

Herein, learned Trial Court in its wisdom was pleased to allow the application filed by the plaintiff seeking interim relief during the pendency of the Civil Suit.

When such an order is assailed under Order 43, Rule 1 of the Code of Civil Procedure, then all that learned Appellate Court has to see is that whether these three parameters have been correctly tested upon the facts of the case and correctly applied by the learned Trial Court or not. Learned Appellate Court is not to hold a mini trial in appeal, as has been done in the present case, of the merit of the main lis itself. In fact, learned Appellate Court rather than restricting itself as to the correctness of the order passed by the learned Trial Court while deciding the application filed under Order 39, Rule 1 and 2 of the Code of Civil Procedure, has ventured to make observations qua the veracity of documents being relied upon by the parties, which in the considered view of this Court could and should not have been done by the learned Appellate Court.

Accordingly, in this view of the matter, without making any further observation, this petition is allowed by setting aside order dated 05.11.2022 (Annexure P­8), passed by the Court of learned District Judge, Bilaspur, District Bilaspur, H.P., in Civil Miscellaneous Appeal No.14/14 of 2022, titled as Raj Kumar & others vs. Bhupender Kumar, on this short count only that the learned Appellate Court ventured beyond its jurisdiction in the course of the adjudication of the appeal. The matter stands remanded back to the learned Appellate Court, which shall decide the appeal afresh in accordance with law. It is made clear that the appeal shall be decided by the learned Appellate Court on its own merit without being influenced by any observation that has been made by this Court in this order.

The parties through counsel are directed to appear before the learned Appellate Court on 17.10.2023. On the said date, learned appellate Court shall further fix a case for the hearing of the appeal and the same be positively decided by the learned Appellate Court on before 10.11.2023.

The petition stands disposed of. Pending miscellaneous applications, if any, also stand disposed of.