Ramachandraiah, Maranna, Chikkavallappa and Doddaiah vs Rangappa, Gopalappa, Krishnamurthy and Byrappa

A.N. Venugopala Gowda, J.—The petitioners are the defendants in O.S. No. 14/2009, pending on the file of the Civil Judge (Jr.Dn.) at Madhugiri, which has been filed by the respondents herein, to pass a judgment and decree, declaring that the plaintiffs are the absolute owners of the plaint schedule property and pass a decree of permanent injunction restraining the defendants and persons claiming under them from interfering with the plaintiffs'' possession and enjoyment of the suit property and for other incidental reliefs. Written statement to the suit was filed by the defendants on 14.09.2009. Since, I.A. No. 2 had been filed to grant an order of temporary injunction along with the suit, the defendants opposed the prayer for grant of temporary injunction. The Trial Court by an order dated 04.02.2009 dismissed I.A. No. 2. Feeling aggrieved, the plaintiffs filed M.A. No. 5/2010 in the District Court at Tumkur, which was assigned to the Fact Track Court-V at Madhugiri for consideration and decision. The said appeal having been allowed and an order of temporary injunction having been passed against the defendants, restraining them from interfering with the possession and enjoyment of the suit property by the plaintiffs, till the disposal of the suit, vide a judgment dated 05.12.2012, this writ petition has been filed by the defendants in the suit, to quash the said judgment and to restore the order dated 04.02.2010, passed on I.A. No. 2 in the suit by the Trial Court. Sri. A.V. Gangadharappa, learned advocate appearing for the petitioners contended that the Appellate Court without considering the materials on record, acting arbitrarily and unreasonably, has allowed the appeal in total disregard of well settled principles of law which govern the authority of an Appellate Court in the matter of examining an appeal filed against the order passed in the suit by the Trial Court refusing to grant an order of temporary injunction. He submitted that the impugned order is perverse, illegal and unsustainable.

Sri. G.S. Venkat Subbarao, learned advocate appearing for the respondents on the other hand by taking me through the impugned judgment, supported the view taken by the learned Presiding Officer of Fast Track Court-V and sought upholding of impugned judgment. He submitted that no grounds have been made out for exercise of writ jurisdiction under Article 227 of Constitution of India for interfering with the impugned judgment.

Perused the writ record.

The learned trial Judge having raised three points for consideration and having answered the same in the negative has dismissed I.A. No. 2 by an order dated 04.02.2010. In the appeal, the learned Appellate Judge raised a point for consideration that "whether the appellants/plaintiffs have made out ground that the lower Court has not properly exercised its discretion to grant Temporary injunction, pending disposal of the suit". After noticing the property described in the schedule of the plaint and observing that none of the defendants have been possessing the lands on the boundaries other than the western side, in the land bearing Sy. No. 71/7 and rough sketch along with the written statement stating that the defendants have purchased the land in Sy. No. 71/8, but wrongly given the survey number as 71/7, it was held that the documents prima facie disclose that the plaintiffs have been in possession of the property and that the learned Trial Judge has misconstrued the averments in the written statement that the land purchased by them is giving wrong survey number and that prima facie case is not made out by the plaintiffs and thus, it was concluded that the prima facie case is not made out by the plaintiffs. Without arriving at a finding that the plaintiffs have not made out prima facie case, further observed that it is not possible to agree with the conclusion of the learned Trial Judge in the Court below that the balance of convenience does not lie in favour of the plaintiffs in view of the documents produced and it was concluded that the Trial Court failed to exercise its discretion on the basis of the materials on record and finding that the suit property is an agricultural land and has fruit bearing trees as contended by the appellants, it was held that, if the temporary injunction is not granted, greater hardship will be caused to the plaintiffs. As a result, the appeal was allowed vide a judgment dated 05.12.2012.

It is well established by catena of decision of the Apex Court that while passing an interim order of temporary injunction under Order 39 Rules 1 & 2 of CPC, the court is required to consider as to, (i) whether there is a prima facie case in favour of the plaintiffs; (ii) whether balance of convenience is in favour of the plaintiffs for passing the order of injunction and (iii) whether the plaintiffs will suffer irreparable injury, if an order of temporary injunction would not be passed as prayed. Hence, the point for consideration is, whether the said principles to grant of temporary injunction has been kept in view by the Appellate Court while passing the impugned Judgment?

It is well settled law that in an appeal as against the order passed by the Trial Court, refusing to grant an order of temporary injunction, the Appellate Court should be slow in interfering with such a discretionary order. Unless the impugned order is found to be perverse, capricious and illegal, the Appellate Court cannot interfere with the discretionary order. Even in a case where the approach and reasoning of the Trial Court is found to be improper and incorrect, the Appellate Court has to examine the record of the case, keeping in view the aforesaid three elements in mind and pass order. The impugned judgment, when examined in the said background, the one and only conclusion which can follow is that the Appellate Court while reversing the order passed by the Trial Court on I.A. No. 2 has not kept in mind the well established principles which govern the grant of order of temporary injunction, noticed supra. The contention of Sri. A.V. Gangadharappa that the Court below has passed the impugned judgment without considering the materials on record and in disregard of settled principles of law is well founded. The Appellate Court has not examined the case of the parties with reference to the materials on record and principles which govern grant of an order of temporary injunction by an Appellate Court, in the manner noticed supra. In the case of Sri Gowrishankara Swamigalu Vs. Sri Siddhaganga Mutt, , it has been held as follows:

I need hardly add the existence of a prima facie case in these matters of granting injunction is really the harbinger or the all clear sign to go ahead in investigating other aspects of the question governing the grant or refusal of injunction. If there was no prima-facie case at all or the case put forward was so weak and tainted having very little prospect of being accepted by the Court, further questions of balance of convenience and irreparable loss need not be considered since the plaintiff would fall at the very first stile itself. But if there was a prima facie case then other considerations governing the grant of injunction would come into play and will also have to be evaluated before granting or refusing the injunction.

(emphasis supplied by me)

The learned Appellate Judge has not examined the case of the parties keeping in view the well settled principles of law which govern the jurisdiction of an Appellate Court in considering the matter as against an order of the Trial Court refusing to grant an order of temporary injunction. Apart from examining the legality of the impugned order, an Appellate Judge has to examine the record of the case keeping in view the three factors noticed in para 6 supra. Mere making out a prima facie case itself is not sufficient. The other considerations governing the grant of injunction would come into play even when a prima facie case is made out and hence, will have to be evaluated before granting or refusing injunction. Since the learned Appellate Judge has not examined the case of the parties in accordance with law, the impugned Judgment being vitiated is unsustainable.

In the result, writ petition is allowed and the impugned judgment is quashed. Since the appeal has not been decided in accordance with law, M.A. No. 5/2010 stands restored for consideration and decision afresh, by keeping in view the observation made supra and in accordance with law. Contentions of both the sides are left open for consideration by the Appellate Court. The parties are directed to appear before the Fast Track Court-V at Madhugiri on 28.03.2013 and receive further orders.

No costs.