Umar vs Ulfat

Pratap Krishna Lohra, J.—Appellant has preferred this appeal under Order 43 Rule 1(r) CPC challenging the impugned order dated 21.08.2013 passed by the learned Additional and Sessions Judge No. 5, Jodhpur Metropolitan Jodhpur.

By the order impugned, learned Court below has rejected the application of the appellant for temporary injunction in a suit for declaration, possession and recovery of damages, which was filed against Yakub and others and the respondent was also arrayed as party to the suit.

In the application for temporary injunction, the appellant-plaintiff has prayed for maintaining status quo regarding the suit property. The application is contested by the respondent and reply is submitted.

After submission of reply, the learned trial Court heard arguments and by the order impugned declined the prayer of the appellant for temporary injunction. While examing prima facie case, the learned Court below has found that the litigants to the suit are Muslims and therefore, they are governed by the Muslim Law of Succession. While acknowledging the fact that respondent is daughter of late Haji Mohammed, the learned Court below has not prima facie found favour with the alleged title of the appellant on the basis of the testamentary instrument. Finally, the learned Court below has concluded that the appellant has miserably failed to make out a prima facie case. As regards other ingredients for grant of temporary injunction also, learned Court below has recorded finding against the appellant.

Learned counsel for the appellant Mr. Alkesh Agarwal has argued that the learned Court below has not examined the lis involved in the main suit while considering the relief of temporary injunction and therefore, the order impugned is liable to be interfered with. Learned counsel would contend that as the suit was for possession, learned Court below ought to have granted limited indulgence to the appellant for maintaining status quo regarding suit property. He therefore, submits that the learned Court below has not exercised its discretion, on sound legal principles. In support of his contention learned counsel has placed reliance on the decisions reported in Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, .

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

Upon perusal of the impugned order, in my considered opinion, the learned Court below has examined the matter threadbare and has recorded a categorical finding that appellant has failed to make out a prima facie case.

It is trite that for grant of temporary injunction a suitor is required to satisfy three conditions; namely, prima facie case, balance of convenience and irreparable loss. In want of satisfaction of these conditions, relief for temporary injunction cannot be granted. The legal position is no more res integra that temporary injunction is of discretionary character, and ordinarily the appellant Court is not obliged to interfere with the sound exercise of discretion by the learned trial Court by way of substituting his own discretion. My this view finds support from a decision of this Court in Smt. Vimla Devi Vs. Jang Bahadur, . Hon''ble Apex Court in Wander Ltd. and Anr. Vs. Antox India P. Ltd., while examining the scope of judicial review in the matter of interlocutory injunction held:-

"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 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. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pathan Joseph : (SCR 721)

".......These principles are well established, but as has been observed by Viscount Simon in Charles Osenton and Co. v. Jhanaton.....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 Vs. Mool Chand Jangir 1993 (3) WLC (Raj.) 338, while examining jurisdiction of appellate Court to interfere with the order passed by the trial Court in deciding application for temporary injunction 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 justice, 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." 10. Therefore, viewed from any angle, I am not inclined to interfere with the impugned order passed by the learned Court below. One more redeeming feature of the case is that in the main suit besides respondent Ulfat other defendants were also impleaded but in the application for temporary injunction, they have not been arrayed as party. This Court in case of Rajbahadur Singh Vs. Hanuman Singh and Ors. reported in 2014(4) WLN 260 (Raj.) has held that where the plaintiff has filed the suit against many defendants but has prayed for temporary injunction against some of the parties only, then too plaintiff is required to join all the defendants as party to the application for temporary injunction. The Court has taken the view that joining all the defendants as party to temporary injunction application is not only desirable but mandatory also. Para 3 of the verdict reads as under:-

"3. It is axiomatic that though the application for temporary injunction is separately registered, it is always filed in the respective suit only as envisaged in Order XXXIX, Rule 1 of the CPC, and therefore all the parties to the suit would be the parties in the application for temporary injunction also, and their names must appear in the cause-title of the suit alongwith the number of the suit, though the reliefs might have been sought against some of the parties only. It is also required to be noted that sometimes the relief of temporary injunction is sought by one defendant against the other defendant in the application for temporary injunction without showing the name of the plaintiff in the cause-title of such application, as has been done in the instant case. In such cases, the plaintiff who has filed the suit against the defendants would be unaware of the orders passed in the application for temporary injunction filed by the defendants inter se. It is therefore not only desirable but mandatory to join all the parties to the suit as the parties in the T.I. Application, in order to avoid any complications in the suit and to avoid conflicting orders in the suit." 11. In view of foregoing discussion, I am not persuaded to interfere with the impugned order. Consequently, the appeal fails and the same is accordingly dismissed summarily.