Rajasthan High Court - Jodhpur
Ishwar Chand Jangid vs Manoj Kumar Sharma (2024:Rj-Jd:26073) on 1 July, 2024
Author: Rekha Borana
Bench: Rekha Borana
[2024:RJ-JD:26073]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1129/2023
Ishwar Chand Jangid S/o Late Shri Mangilal, Aged About 64
Years, Resident Of Jhalra Talab, Maliyon Ka Mohalla, Makrana,
District Nagaur.
----Appellant
Versus
Manoj Kumar Sharma S/o Shri Kishan Sharma, Resident Of
Vasudhara Nagar, Makrana, District Nagaur (Raj.)
----Respondent
For Appellant(s) : Mr. Narendra Thanvi
For Respondent(s) : Mr. Rajesh Joshi, Sr. Advocate
assisted by Mr. Devesh A. Purohit.
HON'BLE MS. JUSTICE REKHA BORANA
Judgment 01/07/2024
1. The present appeal has been preferred by the appellant-defendant against the order dated 25.05.2023 passed by the Additional District Judge, Makrana in Civil Misc. Case No.13/2023 (CIS No.13/2023) whereby, the application under Order 39 Rules 1 & 2, CPC as preferred by the respondent- plaintiff had been allowed.
Vide the impugned order, the learned Trial Court restrained the appellant-defendant from shifting and selling the stone excavated from the mine in question as per the choice of the respondent-plaintiff to the extent of valuation of Rs.1,19,74,254/-.
2. Learned counsel for the appellant submitted that vide the order impugned, the learned Trial Court has virtually decreed the suit as it has granted the relief as prayed for in the suit. (Downloaded on 19/07/2024 at 08:51:06 PM) [2024:RJ-JD:26073] (2 of 7) [CMA-1129/2023] Counsel, at the inception, while denying the execution of any agreement by the defendant submitted that the learned Trial Court totally ignored the fact that the present was a suit for specific performance of contract and as was clear on record, the contract/ agreement in question itself was not a valid contract which could have been enforced. When the agreement itself was not enforceable in terms of law, no interim relief qua the said agreement could have been granted.
Counsel further submitted that although the learned Trial Court itself observed that no finding qua the agreement or the diary in question could be given at this stage, however, proceeded on to grant an interim relief in favour of the plaintiff relying on the said two documents as if they had been proved on record. Once the Court refrained from recording any finding qua the said two documents, reliance upon the same was totally erroneous and in excess of jurisdiction.
Counsel further submitted that the order impugned deserves interference even on the premise that compliance of the same is totally impractical and is not feasible. It is beyond imagination as to how firstly, the stone specifically of the choice of the plaintiff would be identified and secondly, as to how and where the stone of the valuation of Rs.1,19,74,254/- would be stored.
Counsel further raised the apprehension of being alleged of contempt of the orders of the Court in both ways, even if the defendant complied with the order or he does not. The choice of the plaintiff qua the stone is a fact totally dependent upon the sweet will of the plaintiff and the defendant has been left totally on the mercy of the plaintiff vide the order impugned. (Downloaded on 19/07/2024 at 08:51:06 PM) [2024:RJ-JD:26073] (3 of 7) [CMA-1129/2023] Counsel further submitted that the present was a clear case wherein, the plaintiff failed to prove any prima-facie case or any irreparable injury. Admittedly, the dispute was pertaining to a particular quantified amount of money and the same can definitely be compensated with, in terms of money if at all, the plaintiff succeeds in his suit. No interim injunction as granted by the learned Trial Court could have been granted in the present facts and circumstances.
In support of his submissions, counsel relied upon the following judgments :-
(i) M/s. Best Sellers Retail (India) Pvt. Ltd. vs. M/s.
Aditya Birla Nuvo Ltd. & Ors.; AIR 2012 SC 2448
(ii) Dalpat Kumar & Anr. vs. Prahlad Singh & Ors.; 1993 (Suppl.) Civil Court Cases 507 (S.C.)
(iii) Indian Oil Corporation Ltd. vs. Municipal Board Chaksu & Anr.; RLW 1998(2) Raj. 1204
(iv) Sri Subramanya Sri Devara Bhandram Thokur vs. T. Srinivasa Rao; 1996(2) Civil Court Cases 76 (Karnataka)
(v) Himachal Steel Rerollers and Fabricators. vs. The Union of India & Ors.; AIR 1988 Allahabad 191.
3. Per contra, learned senior counsel for the respondent submitted that the execution of the agreement in question was very well proved on record as the stamp for the same was purchased by the son of the defendant himself and even the relevant copy of the Register of the Notary Public bearing the signatures of all the parties/witnesses was placed on record. (Downloaded on 19/07/2024 at 08:51:06 PM) [2024:RJ-JD:26073] (4 of 7) [CMA-1129/2023] Counsel further submitted that interestingly, the execution of the agreement has not been denied by the defendant, his only version is that the same was not executed by his freewill. The pleading of the defendant is that the agreement dated 17.04.2019 was got executed fraudulently by the plaintiff. Meaning thereby, the execution of the agreement is not denied. Therefore, once the document has not been denied, the plaintiff had definitely proved a prima-facie case in his favour and the interim relief granted by the learned trial Court was totally in consonance with the said agreement.
Counsel further submitted that the scope of interference for the Appellate Court qua an order of temporary injunction is very limited one and once the learned Trial Court has exercised its jurisdiction in granting a relief in favour of the plaintiff, the Appellate Court should refrain from interfering with the same.
In support of his submissions, counsel relied upon the following judgments :-
(i) Dev Prakash & Anr. vs. Indra & Ors.; (2018) 14 SCC 292
(ii) Rudresh Jhunjhunwala & Ors. vs. Satish Kumar & Ors.; S.B. Civil Misc. Appeal No.136/2022 (decided on 03.02.2022) (Rajasthan High Court)
(iii) Vijaya Minerals Pvt. Ltd. vs. Bikash Chandra Dev;
AIR 1996 Calcutta 67.
4. Heard learned counsel for the parties and perused the material available on record.
5. After thoroughly examining the agreement in question and the other relevant material as placed on record, this Court is (Downloaded on 19/07/2024 at 08:51:06 PM) [2024:RJ-JD:26073] (5 of 7) [CMA-1129/2023] of the clear opinion that the order impugned as passed by the learned trial Court deserves interference, the same being totally impractical and further amounting to the suit itself being decreed. The operative portion of the order impugned reads as under :-
"ifj.kker% izkFkhZ izFke n`'V;k ekeyk] lqfo/kk dk larqyu o viw.khZ; {kfr ds fcUnw vius i{k esa lkfcr djus esa lQy jgk gS] ,sls esa vizkFkhZ dks rkQSlyk ewy okn ikcan fd;k tkrk gS fd og [kku la- 42 Mh pd Mawxjh jsat edjkuk ds mÙkjh fgLls ds ik;s cuki 25 xq.kk 100 QqV ls fudyus okys iRFkjksa dks izkFkhZ }kjk m/kkj nh xbZ jkf"k 1]19]74]254@& :i;s ds ewY; rd ds iRFkj mldh ialn ls vyx j[ks] mu iRFkjksa dk lkSnk fdlh vU; ls ugha djs o vU; iRFkjksa dks [kku ds isMs+ ls ugha gVk;sA"
A perusal of the above portion wherein the Court observed that the defendant was to preserve the stone worth the amount as given by the plaintiff to the defendant on loan, makes it clear that the Court concluded that the plaintiff lent an amount of Rs.1,19,74,254/- to the defendant. The said finding of the learned Trial Court is totally contrary to its own observation wherein it observed that no finding qua the agreement or the diary in question can be recorded at this stage. Further, proceeding on with the finding that the plaintiff did loan out an amount of Rs.1,19,74,254/- to the defendant at the stage of temporary injunction application is totally contrary to the settled principles governing the provision of Order 39 Rules 1 & 2, CPC. The approach of the learned Trial Court virtually amounts to a specific finding in favour of the plaintiff regarding the loan being forwarded (Downloaded on 19/07/2024 at 08:51:06 PM) [2024:RJ-JD:26073] (6 of 7) [CMA-1129/2023] by him to the defendant without the same being proved, which, in the specific opinion of this Court, cannot be affirmed.
But then, this Court cannot also be oblivious of the fact that the execution of the agreement in question has not, in unequivocal terms, been denied by the defendant, although the execution with freewill has been denied. But then, even if the agreement in question is assumed to have been executed, the contents thereof cannot be said to have been prima-facie proved on record. The quantum of loan amount as alleged by the plaintiff cannot be said to be final and proved at this stage as observed by the learned Trial Court. The same can only be decided after the evidence being led. Further, it is beyond imagination as to how the stone valuing to Rs.1,19,74,254/- could be stored at a particular place and that too, of the specific choice of the plaintiff. The order impugned being totally impractical too, deserves interference.
6. This Court further observes that if the order impugned is affirmed and is directed to be complied with, it is incomprehensible as to how the defendant would be compensated if the suit of the plaintiff fails. The principles governing a temporary injunction application, presupposes a balance of equity between the parties. While granting any interim relief, none of the parties can be benefitted to the extent that if ultimately, the suit fails, the situation becomes irreversible.
7. So far as the judgments relied upon by both the learned counsels are concerned, there is no quarrel over the settled proposition of law that before passing an order on an application for temporary injunction, the Court has to strictly adhere to the basic principles of prima-facie case, balance of (Downloaded on 19/07/2024 at 08:51:06 PM) [2024:RJ-JD:26073] (7 of 7) [CMA-1129/2023] convenience and irreparable injury. Further, the proposition of law regarding the scope of jurisdiction of the Appellate Court is also settled. Correct it is that the Appellate Court should not interfere in the orders of temporary injunction granted by the Trial Court unless and until the same is totally perverse, arbitrary or against the settled principles of law. But then, it is also the settled position of law that an order passed in total violation of the basic principles of law, deserves interference by the Appellate Court so as to curtail the perpetuity of illegality.
As observed in the preceding paras, the order impugned being amounting to virtual decreeing of the suit, deserves interference and the same is hence, set aside. In the facts and circumstances of the case, the best proposition would be that both the parties maintain status quo regarding the mine in question till the final disposal of the suit.
8. In view of the above observations, the impugned order dated 25.05.2023 passed by the Additional District Judge, Makrana is hereby quashed and set aside. The present appeal is disposed of with a direction that status quo regarding the mine in question shall be maintained by both the parties till the final disposal of the suit.
9. Stay petition and all pending applications, if any, stand disposed of.
(REKHA BORANA),J S1-Sphophaliya/-
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