Pyarelal And Ors vs Sunil Kumar

Appellant-defendants have preferred this appeal under Order 43 Rule 1(r) CPC to assail order dated 16.03.2019, passed by Additional District Judge,

Raisinghnagar, District Sri Ganganagar (for short, ‘learned trial Court’). The learned trial Court, by the order impugned, partly allowed

application of respondent-plaintiff under Order 39 Rule 1 & 2 CPC for grant of temporary injunction in a suit for specific performance of contract.

While partly allowing the application for temporary injunction, learned trial Court has directed appellants not to alienate the suit property so as to create

third party interest.

The facts, in brief, are that respondent-plaintiff instituted a civil suit for specific performance of agreement dated 02.02.2017 allegedly executed by

appellants in his favour. In terms of the agreement, the appellants have agreed to sell shop No.162, ad-measuring 10ftx20ft situated in Mochi Bazar,

Ward No.23, Raisinghnagar, for consideration amount of 49 lakhs. The agreement also contained recitals that about the consideration amount

appellants have received, i.e., earnest money to the tune of Rs.5 Lakhs, and thereafter, further acknowledgment for receipt of a sum of Rs.8 Lakhs

followed by Rs.2 Lakhs. It is further averred in the suit that despite readiness and willingness of respondent-plaintiff, the appellants have not

performed their part of contract by executing sale-deed in his favour. Along with the suit, an application under Order 39 Rule 1 & 2 CPC is also filed

praying therein temporary injunction. The application for temporary injunction is contested by appellants with a specific plea that agreement to sale is

ex-facie spurious document. The learned trial Court, after examining the matter, more particularly, the requisite ingredients for grant of temporary

injunction, recorded its finding that respondent-plaintiff has been able to prove prima facie case and two other necessary ingredients for grant of

temporary injunction. With this finding, learned trial Court allowed application for temporary injunction and directed the appellants not to alienate the

suit property so as to create third party interest.

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

There remains no quarrel that grant or refusal of temporary injunction is within the sole discretion of the Court of first instance and normally appellate

Court is not expected to substitute its view. The appellant Court can very well interfere with the order passed by learned trial Court if it comes to the

conclusion that the order impugned is perverse or dehors the sound legal principles governing the province of temporary injunction.

This Court in case of Vimla Devi Vs. Jang Bahadur [AIR 1977 (Raj.) 196] has examined the powers of appellate Court to interfere with the

discretionary order in the matter of grant of temporary injunction and observed:

I have given my earnest consideration to the contentions raised on behalf of the defendant-petitioner. The order refusing temporary injunction is of a

discretionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion passed by the trial Court and substitute for it its

own discretion. The interference with the discretionary order, however, may be justified if the lower Court acts arbitrarily or perversely, capriciously

or in disregard of sound legal principles or without considering all the relevant records.

In the light of the above observations, I have now to see whether it was open to the learned District Judge to interfere with the order of the learned

trial Court. It is well settled that the grant of temporary injunction is a discretionary order and the decision of the first Court could not be easily

interfered with by the appellate Court vide Musa v. Badri Prasad, ILR (1953) 3 Raj 257. The mere possibility of the appellate Court coming to a

different conclusion on the same facts and evidence will also not justify interference vide Wazir Sundar Singh v. Mst. Farida Khanam, AIR 1920 PC

Another well established principle while disposing of the application under O. 39, Rr. 1 and 2, C.P.C. is that when the Court while dealing with

the case for grant of temporary injunction decides the question of prima facie case, it should apply its judicial mind to the materials which are placed

on the record and if it does not do so then it commits illegality in the exercise of jurisdiction and in that case the High Court is competent to interfere in

revision in such a case vide Musa v. Badri Prasad (supra). The view taken in Musa v. Badri Prasad (supra) has been followed by Kan Singh J. in

Girdhari Lal v. Mahadevi Sharma, AIR 1958 Raj 237. It has been held in this case that the appellate Court should be slow in upsetting a decision of a

trial Court in a matter relating to grant of temporary injunction unless the decision of the trial Court is arbitrary, perverse or is not based on sound legal

principles. It has been further observed in that case that when the appellate Court does not apply its judicial mind on all the materials brought on the

record then in that case the approach of an Appellate Court would be wrong and contrary to the well established principles laid down by the High

Court, more so when the appellate Court does not deal with the reasoning that has prevailed with the trial Court and further when it does not apply its

judicial mind on the materials placed on the record.

In a subsequent judgment, the Supreme Court in case of Wander Ltd. & Anr. Vs. Antox India P. Ltd. [1990 (Supp) SCC 727] observed that appeal

against grant or refusal of temporary injunction is appeal on principle. While dilating on the powers of appellate Court, the Court held:

“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 that 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.â€​

Having regard to the facts and circumstances of the case and law on the subject, in my opinion, learned trial Court has exercised its discretion

judiciously. Therefore, I feel disinclined to interfere with the discretionary order passed by learned trial Court.

Consequently, the appeal fails and same is hereby rejected.

However, before parting, it may be observed that considering the lis involved in the matter, learned trial Court is expected to expedite the trial of the

main suit and decide the same at the earliest.