Rajasthan High Court - Jodhpur
Lichma Devi vs Parasa Ram And Ors on 5 September, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1299/2018
Lichhma Devi W/o Jagdish Prasad, By Caste Nayak, Resident Of
Chak 2 Aam Mompura, Tehsil And District Hanumangarh.
----Appellant
Versus
1. Parasa Ram S/o Ruda Ram, By Caste Nayak, Resident Of
26 Stg Tehsil Pilibanga District Hanumangarh.
2. Mohan Lal S/o Ruda Ram, By Caste Nayak, Resident Of
Ward No. 1, New Housing Board, Suratgarh, District
Hanumangarh.
3. Sona Devi D/o Ruda Ram W/o Sharwan Ram, By Caste
Nayak, Resident Of 26 Stg Tehsil Pilibanga District
Hanumangarh.
4. Minakshi W/o Balwant, By Caste Nayak, Resident Of
Hanumangarh Junction Tehsil And District Hanumangarh.
5. Tehsildar Revenue, Hanumangarh, District Hanumangarh.
6. Sub Registrar, Dabli Rathan, Tehsil And District
Hanumangarh.
7. Branch Manager, State Bank Of India Branch Satipura,
Tehsil And District Hanumangarh.
8. Budh Singh S/o Labh Singh, By Caste Ramdasiya,
Resident Of Kamana Tehsil And District Hanumangarh.
----Respondents
For Appellant(s) : Mr. Vikram Singh
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 05/09/2018 Appellant-plaintiff has preferred this appeal under Order 43 Rule 1 read with Section 104 CPC to assail order dated 06.04.2018 passed by Additional District Judge No.2, (2 of 4) [CMA-1299/2018] Hanumangarh (for short, 'learned trial Court') rejecting her prayer for temporary injunction in a suit for specific performance of contract.
The facts, in brief, are that appellant laid a suit for specific performance of contract against respondent Nos.1 to 4 seeking enforcement of agreement to sale dated 25.10.2013. Along with the plaint, appellant also preferred an application under Order 39 Rules 1 & 2 CPC for temporary injunction in which a prayer was made to restrain respondents from alienating the land in question, which is subject-matter of agreement to sale and further not to disturb her possession over the land in question. The temporary injunction application was contested by respondents wherein execution of agreement to sale itself was specifically denied by them besides incorporating other objections.
Learned trial Court, after hearing submissions of the rival parties, examined the three necessary ingredients; viz., prima facie case, balance of convenience and irreparable loss. Upon scrutinizing the available material, learned trial Court has recorded definite finding that appellant-plaintiff has failed to prove prima facie case in her favour. Besides that, learned trial Court has also recorded its finding on other ingredients against her for refusal of temporary injunction.
Upon consideration of the arguments advanced by learned counsel for the appellant, I am unable to find any infirmity in the impugned order.
It is trite that grant or refusal of temporary injunction is within the sole discretion of the Court of first instance and normally appellate Court's power is loathed to interfere with the discretionary order of trial Court. As there is no perversity in the (3 of 4) [CMA-1299/2018] impugned order nor it is borne out that the learned Court below has deviated from the sound legal principles for grant or refusal of temporary injunction. This Court, in case of Smt. Vimla Devi Vs. Jang Bahadur [AIR 1977 (Raj.) 196], has threadbare examined the powers of appellate Court for interfering with the discretionary order of the trial Court in the matter of temporary injunction, and observed as under:-
"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 132. 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 (4 of 4) [CMA-1299/2018] 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 view of law laid down in case of Vimla Devi (supra), in my opinion, no interference with the impugned order is warranted.
Consequently, appeal fails and the same is hereby rejected summarily.
(P.K. LOHRA),J Bharti/17 Powered by TCPDF (www.tcpdf.org)