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Judgment
Appellant-plaintiffs have preferred this appeal under Order
43 Rule 1(r) read with Section 104 CPC to assail order dated 21 st
of August 2017, passed by Addl. District Judge Bali, District Pali,
rejecting their application for temporary injunction under Order 39
Rule 1 & 2 CPC in a suit for cancellation of sale-deed and
perpetual injunction.
Brief facts of the case are that appellant-plaintiffs filed
aforesaid suit with the averments that first respondent, Vidyadhar,
is real uncle of appellant Kantilal and brother-in-law of third
appellant, Smt. Pyari Bai. It is also averred that Late Shri Ratan
Lal was father of appellants No.1, 2 & 4 to 7, and husband of third
appellant-Smt. Pyari Bai. While referring to the first respondent, it
is averred in the plaint that he is real brother of Late Ratan Lal
having joint agricultural land in Khasra Nos.24 & 25 ad-measuring
2.48 hectare situated at village Guda Jaitavtan, Tehsil Rani,
District Pali and land ad-measuring 3.6 hectare of Khasra Nos.336,
339, 340 and 380 at village Tokarla, Tehsil Rani, District Pali. It
is also averred in the plaint that both the brothers entered into
family settlement and it was decided that deceased Ratan Lal shall
own the agricultural land situated in village Guda Jaitavtan and
the first respondent shall have right over the agricultural land of
the village Tokarla. Appellants specifically pleaded in the plaint
that part of agricultural land situated at Guda Jaitavtan has been
alienated by first respondent unauthorisedly in favour of second
respondent. Therefore, in that background, appellants have
craved for issuance of decree for cancellation of sale-deed
executed in favour of second respondent and also sought
perpetual injunction. Along with the suit, an application under
Order 39 Rule 1 & 2 CPC was also filed by the appellant-plaintiffs
seeking temporary injunction for preserving the alienated property
as it is and maintaining status quo. The respondents contested
the temporary injunction application. The learned trial Court,
thereafter, heard arguments of both the sides, by the order
impugned rejected the temporary injunction application.
I have heard learned counsel for the appellants, learned
counsel for the respondents and perused the impugned order.
Upon perusal of impugned order, I am at loss to say that the
learned trial Court has not at all cared to examine the three
requisites for grant of temporary injunction in right perspective.
There is no quarrel in the legal position that grant of temporary
injunction always depends upon existence of three necessary
ingredients, viz., prima facie case, balance of convenience and
irreparable loss in favour of suitor and the Court is expected to
examine all the three ingredients. Temporary injunction being
equitable remedy founded on the principles of equality, justice and
good conscience, a Court, clothed with jurisdiction to grant such
relief is required to scrutinize afflictions of an aggrieved party with
pragmatic approach.
True it is that the learned trial Court has recorded finding on
all the three ingredients against appellants but the finding on
prima facie case is not based on sound reasoning. Besides that,
the other ingredients are also not examined by the learned trial
Court appropriately.
Although the scope for interference with discretionary order
of temporary injunction by appellate Court is very much limited
but appellate court cannot shut its eyes when it is noticed that
trial court has not examined the matter on the touchstone of
sound legal principles governing the province for grant of
temporary injunction.
In totality, I am afraid, finding on prima facie case by the
learned trial Court and other two ingredients necessary for grant
of temporary injunction are not satisfactory and therefore the
impugned order is liable to be interfered with in exercise of
appellate jurisdiction.
Resultantly, instant appeal is allowed. Impugned order is set
aside and the matter is remanded back to the learned trial Court
for deciding the application for temporary injunction of the
appellants afresh.
It is needless to observe here that the learned trial Court is
expected to decide the temporary injunction application
dispassionately, uninfluenced by the observations made to supra.