Mohinudeen Khan and Others vs Aashif Khan and Others

Pratap Krishna Lohra, J.—The appellants-defendants have laid this appeal under Order 43 Rule 1(r) read with Section 104 CPC assailing the order dated 10th November, 2014 passed by learned Additional District and Sessions Judge No. 1, Jodhpur Metropolitan, whereby the application under Order 39 Rule 1 and 2 CPC of the respondents-plaintiffs is allowed in a suit for partition and cancellation of Will and the appellants are restrained from alienating the suit property till the disposal of the suit and to maintain status quo.

Learned counsel for the appellants submits that the learned Court below has not recorded definite finding about existence of prima facie case and finding regarding balance of convenience and irreparable loss are also laconic. Learned counsel Mr. Patel would contend that the learned Court below has not thrashed out the matter in its entirety in construing and interpreting Muslim Law relating to bequeath by a Mohammedan about estate. Elaborating his submissions, learned counsel submits that a Mohammedan is entitled to bequeath more than 1/3rd share of his estate to other person with the consent of heirs, and even if it is assumed that bequeath is more than 1/3rd of the estate, in the instant case, inaction on the part of the respondent for a prolonged duration to question bequeath can very well be construed as consent by implication, but this vital aspect has not been properly appreciated by the learned Court below in the impugned order. Learned counsel in the alternative submits that the testator Jafar Khan has executed his Will in favour of appellants for his estate which is less than 1/3rd of the total estate and therefore the same cannot be categorized dehors the personal law.

In substance, submission of the learned counsel is that finding of the learned Court below on ingredients for grant of temporary injunction are perverse and not convincing which is outcome of exercising discretion inappropriately warranting interference.

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

Before I proceed to examine the legality and propriety of the impugned order, it is imperative to examine the ambit and scope of an appeal against grant or refusal of temporary injunction.

The scope for interference in an appeal under Order 43 Rule 1(r) 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., (1990) 2 ARBLR 399 : (1990) 1 SCC 727 Supp : (1990) SCC 727 Supp , while examining the scope of judicial review in such appeals has held as under:

"13. On a consideration of the matter, we are afraid, the Appellate Bench fell into error on two important propositions. The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the Appellate Court to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocinations as to the quality of Antox''s alleged user of the trademark on which the passing-off action is founded. We shall deal with these two separately.

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 Printers (Mysore) Private Ltd. v. Pothan Joseph:(SCR 721)

"... These principles are well established, but as has been observed by Viscount Simon in Charles Osention and 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."

This Court in Rajasthan State Electricity Board v. Moolchand Jangid [1993 (3) WLC (Raj.) 338] following the aforesaid judgment of Hon''ble Apex Court has held as under :-

"5. The jurisdiction of an Appellate Court to interfere with an order passed by a trial Court in deciding the application for grant of injunction is very limited. The appellate Court can interfere with an order of the trial Court granting or refusing to grant injunction only when it is satisfied that the trial Court has acted contrary to law or has acted arbitrarily or that the findings of the trial court regarding the three requirements of grant of injunction are perverse or capricious or that there has been a misreading of the pleadings or evidence. Only on satisfaction of the existence of any one or more of these factors, a lower Appellate Court can over turn order of the trial court. The jurisdiction of an appellate Court is not co-extensive with that of the trial court while hearing an appeal against an order made on an application for grant of injunction. The appellate court is under a duty to manifestly show in its order that the trial court has committed some grave error of law or has acted arbitrarily or capriciously while deciding the application for grant of injunction. Without recording such conclusion, which must itself be supported by reasons, an appellate court cannot interfere with the order of the lower court. An appellate court cannot set aside the order of the trial court merely because on an application of the pleadings and the evidence, it may form an opinion other than the one formed by the trial court. If an appellate court interferes with the order of the trial court passed while deciding an application for temporary injunction, ex debito justitiae , the High Court in exercise of its revisional jurisdiction not only can but must interfere and nullify the order of the appellate Court. In such a case it becomes the duty of the High Court to correct error of the appellate court."

In view of above, an appeal against the order granting or refusing injunction is an appeal on principle for the reason that in the matter of grant or refusal of injunction discretion lies with the Court of first instance and normally the appellate Court is not required to substitute its own view even if on re-examining the matter, it may reach to a different conclusion. The appellate Court is required to exercise its power with great care and circumspection and order on application under Order 39 Rules 1 and 2 is to be interfered with if the Court below has acted contrary to the prescribed canons of justice or has exercised its discretion capriciously or perversely.

Now, I propose to examine the impugned order in the light of trite law on the subject.

In the instant case, the learned Court below has examined the matter threadbare and while scrutinizing the lis involved in the matter has rightly concluded that a prima facie case is made out by the respondent-plaintiffs and the other two necessary ingredients for grant of temporary injunction are also available. In my opinion, the learned Court below, having examined the matter in its entirety and considering the lis involved in the main suit has rightly granted limited indulgence to the respondent-plaintiffs by restraining the appellant-defendants from alienating the suit property and to maintain status quo 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 categorized as perverse in any manner warranting interference rather 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.

In that view of the matter, I am not persuaded to interfere with the impugned order passed by the learned Court below and consequently the appeal is hereby dismissed. However, as the main suit is laid by the respondents-plaintiffs in the year 2011, it is expected of the learned trial Court that it shall proceed with the trial as expeditiously as possible and decide the same as early as possible.