Heera Lal vs LRs of Devendra Bhatt

Arun Bhansali, J.—This writ petition has been filed by the petitioner aggrieved against order dated 19.11.2009 passed by Additional Civil judge (Senior Division) No. 1, Udaipur and order dated 8.3.2016 passed by Additional District Judge No. 2, Udaipur, whereby, application filed by the petitioner under Order 39, Rules 1 and 2 C.P.C. and, appeal arising there from, have been rejected respectively.

Petitioner filed a suit for cancellation of sale deed executed by his father Duda in favour of the defendants. Along with the suit an application seeking temporary injunction was filed.

The suit as well as application for temporary injunction was resisted by the defendants.

The Trial Court after hearing the parties on the application filed by the petitioner came to the conclusion that petitioner had failed to show a prima facie case in his favour, inter alia, as he was not in possession of the land in question and consequently, found that balance of convenience and irreparable injury was not in his favour and dismissed the application.

Feeling aggrieved, petitioner filed an appeal.

The Appellate Court after hearing the parties, on several counts found that the petitioner had no prima facie case in his favour and consequently, dismissed the appeal.

It is submitted by learned Counsel for the petitioner that the finding recorded by the Trial Court regarding the possession is ex facie incorrect and the application could not have been rejected based on the said finding. It was further submitted that the issues dealt with by the Appellate Court in the order impugned are subject matter of trial and finding could not have been recorded by the Appellate Court while deciding the appeal and, therefore, the orders impugned deserve to be quashed and set aside.

I have considered the submissions made by learned Counsel for the petitioner and have perused the material available on record.

The Appellate Court has given cogent reasons for its finding that the petitioner has no prima-facie case in his favour and the said reasons could not be said to be not germane for decision of an application under Order 39, Rules 1 and 2 C.P.C. and, therefore, the orders passed by the Trial Court and the Appellate Court do not call for any interference.

However, it goes without saying that any observations made by the two Courts below touching the merits of the dispute have been recorded only for the purpose of examining the prima facie case and the same shall not affect the final outcome of the suit between the parties.

In view of the above, the writ petition has no substance and the same is, therefore, dismissed.