Bhuri Devi vs Kanhaiya Lal

Pratap Krishna Lohra, J.—Appellants-defendants have laid this appeal under Order 43 Rule 1(r) read with Section 104 CPC against the order dated 28th May, 2012 passed by the learned Additional District Judge, Shahpura, District Bhilwara, whereby learned Court below, while deciding application of the respondent-plaintiff under Order 39 Rules 1 & 2 CPC for grant of temporary injunction in a suit for specific performance of contract, has restrained the appellant from further alienating the suit property and maintaining status-quo as it is exists today for preserving the property.

The learned Court below after considering the rival submissions has recorded an affirmative finding that respondent-plaintiff has proved, prima facie, case in his favour and further he has been able to prove two other necessary ingredients, namely, balance of convenience and irreparable loss for grant of temporary injunction. With this conclusion, the learned Court below has granted indulgence to the respondent-plaintiff and passed the impugned order.

Learned counsel for the appellants has urged that the learned Court below has not thrashed out the matter in its entirety and, while recording finding on prima facie case, has not taken cognizance of a vital fact that agreement to sale for the said disputed land was executed in favour of the second appellant on 31st August, 2010, i.e., anterior to agreement to sale allegedly executed in favour of respondent-plaintiff. Learned counsel further submits that findings of the learned Court below on other ingredients for grant of temporary injunction are not convincing and the Court has not exercised its discretion appropriately in granting the relief of temporary injunction.

Per contra, Mr. Farzand Ali, submits that the learned Court below has examined the matter threadbare and thereafter recorded an affirmative finding about prima facie case as well as existence of two other ingredients for grant of temporary injunction, which is a just finding warranting no interference in the limited scope of judicial review in this appeal. Mr. Farzand Ali further submits that existence of agreement to sale in favour of appellants-defendants anterior to the respondent-plaintiff can be ascertained after taking into account evidence of the rival parties and that is why the learned Court below, while considering it to be a contentious issue, has recorded a finding about prima facie case, which requires no interference. Lastly, Mr. Farzand Ali submits that scope of judicial review in an appeal against the order for temporary injunction is very much limited and appellate Court is not obliged to reassess the material and seek to reach a conclusion different from the one reached by the learned Court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion.

I have heard learned counsel for the parties and perused the impugned order.

After perusal of the impugned order, in my considered opinion, the learned Court below has exercised its discretion judiciously and, while exercising its jurisdiction, the learned Court below has neither acted arbitrarily nor capriciously. That apart, findings of the learned Court below cannot be categorised as perverse in any manner warranting interference.

It is trite that scope of interference in an appeal under Order 43 against the interlocutory injunction is very much limited and appellate Court is expected to exercise such powers with great care and circumspection. Such appeal is an appeal on principle as order granting or refusing injunction is within the sole discretion of the Court of first instance. Hon''ble Apex Court in Wander Ltd. and Another Vs. Antox India P. Ltd., , while examining the scope of judicial review in such appeals has held as under:-

The appeals before the Division Bench were against the exercise of discretion by the Single Judge. 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 the 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. After referring to these principles Gajendragadkar, J. in Gajebdragadjarm, J. in Printers (Mysore) Private ltd. v. Pothan Joseph:

"... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case."

The appellate judgment does not seem to defer to this principle.

Thus, viewed from any angle, I am not persuaded to interfere with the impugned order passed by the learned Court below and consequently this appeal fails and the same is, hereby, dismissed.

Before parting, it is made clear that the suit filed by the respondent-plaintiff is pending before the learned trial Court since 2010, therefore, it is expected that the learned trial Court shall proceed with the trail as expeditiously as possible and decide the same within a period of one year.