Rajasthan High Court - Jodhpur
Rajesh Kumar vs Girish Kumar on 13 February, 2019
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1612/2018
Girish Kumar S/o Shri Satyapal Sindhi, R/o Titan Watch, Gol
Pyau Choraha, Bhilwara. Raj.
----Appellant
Versus
1. Rajesh Kumar S/o Late Banshi Lal Pathak, R/o Shahid
Chowk, Sanganeri Gate, Bhilwara.
2. Sanjay Pathak S/o Late Shri Banshi Lal, R/o Shahid
Chowk, Sanganeri Gate, Bhilwara.
3. Smt. Shakuntala Devi W/o Late Shri Banshi Lal, R/o
Shahid Chowk, Sanganeri Gate, Bhilwara.
4. Ajay Kumar S/o Sh. Janki Lal Bohara, Resident of 117,
Vallabh Nagar, Indore M.P.
5. Kailash Chandra S/o Ram Swaroop Kothari, Resident of
Near Keshav Hospital R.c. Vyas Colony, Bhilwara. Ii
Address- Indraprasth Tower, Ground Floor, Near Mukharji
Park, Bhilwara.
6. Smt. Salini Kalara W/o Sh. Milap Singh Kalara, Resident
of Near Gurudwara, Sindhu Nagar, Bhilwara.
7. Nagar Parishad, Through Commissioner, Nagar Parishad,
Bhilwara.
----Respondents
Connected With
S.B. Cross Objection Civil No. 3/2019
1. Rajesh Kumar S/o Shri Banshi Lal Patahk, Aged About 51
Years, R/o Shahid Chowk, Sanganeri Gate, Bhilwara.
2. Sanjay Pathak S/o Shri Banshi Lal Patahk, Aged About 47
Years, R/o Shahid Chowk, Sanganeri Gate, Bhilwara.
3. Smt. Shakuntala Devi W/o Shir Banshi Lal Patahk, Aged
About 73 Years, R/o Shahid Chowk, Sanganeri Gate,
Bhilwara.
----Appellants
Versus
1. Girish Kumar S/o Shri Satyapal Sindhi, R/o Titan Watch,
Gol Pyau Choraha, Bhilwara (Raj.)
2. Ajay Kumar S/o Shri Janki Lal Bohara, R/o 117, Vallabh
(2 of 10) [CMA-1612/2018]
Nagar, Indore (MP)
3. Kailash Chandra S/o Shri Ram Swroop Kothari, R/o Near
Kaishav Hospital, R C Vyas Colony, Bhilwara Iind Address
Indraprasth Tower, Ground Floor, Near Mukharji Park,
Bhilwara (Raj.)
4. Smt. Salina Kalara W/o Shri Milap Singh Kalara, R/o Near
Gurudwara, Sindhu Nagar, Bhilwara.
5. Nagar Parishad, Through Is Commissioner, Nagar
Parishad, Bhilwara.
----Respondents
For Appellant(s) : Mr. Sandeep Sarupariya
For Respondent No.1 : Mr. Usman Ghani
to 3
For respondent No.7 : Dr. Patishta Dave.
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 13/02/2019 By the instant appeal under Order 43 Rule 1 read with Section 104 CPC, appellant-defendant has assailed order dated 1 st of June, 2018, passed by Addl. District Judge No.1, Bhilwara (for short, 'learned trial Court'). The learned trial Court, by the order impugned, has partly allowed application of the respondent- plaintiffs under order 39 Rule 1 & 2 CPC for grant of temporary injunction in a suit for cancellation of sale-deeds and perpetual injunction. In this matter, the plaintiff-respondents have also filed cross-objection and have prayed for granting relief in toto as prayed in the application filed by them under Order 39 Rule 1 & 2 CPC.
The facts, in brief, giving rise to this appeal are that respondent-plaintiffs filed a suit against appellant-defendant and (3 of 10) [CMA-1612/2018] others before the learned trial Court for cancellation of sale-deed dated 5th of June, 2006 in favour of appellant as well as sale-deed dated 27th of February, 1999 in favour of proforma respondent No.6 and prayed for permanent injunction. As per the version of respondent-plaintiffs, the measurement in the sale-deeds towards western side is shown erroneous as the same has been depicted in the instruments 43 ft. instead of 13 ft. and the total land sold was 239.55 sq.ft. and 166.22 sq.ft. With these averments, it is prayed that the sale-deeds be cancelled and declared null and void. Apart from the relief of cancellation of sale-deeds, respondent-plaintiffs also prayed for grant of perpetual injunction restraining the appellant-defendant from raising any construction beyond 13 ft. land and creating any third party interest on the land in question. The suit is contested by the appellant by filing written statement denying all the averments.
Alongwith the plaint, on behalf of respondent-plaintiffs an application under Order 39 Rule 1 & 2 CPC was also filed for temporary injunction. The application for temporary injunction is contested by appellant and the learned trial Court after hearing arguments of rival parties by the impugned order partly allowed the application for temporary injunction. The learned trial Court, by the order impugned, restrained the appellant from raising construction towards western side of Plot No.69 beyond 13 ft. and maintain status quo regarding construction as per the report of Commissioner. It is further ordered that the appellant may not alienate the property in question so as to create third party interest.
(4 of 10) [CMA-1612/2018] Mr. Sandeep Saruparia, learned counsel appearing for the appellant has vehemently argued that the learned trial Court has seriously erred in granting temporary injunction. While persisting with his argument to question legality and propriety of the impugned order, in the alternative it is submitted by Mr. Saruparia that requisite construction has already been completed at the site and therefore appellant may be permitted to carry out finishing work subject to his undertaking of doing the same at his own risk and peril. Elaborating his submission in this behalf, Mr. Saruparia contends that even before the learned trial Court, the situation was clear but despite noticing factum of completion of construction work, learned trial Court has not granted limited indulgence to the appellant to carry out finishing work. He, therefore, submits that appellant may be allowed to carry out finishing work subject to his undertaking that in the event of final outcome of case against him, he would remove the construction at his own cost and shall not claim any equity for the construction as well as finishing work carried out by him. Taking exception to the cross-objection submitted by respondent-plaintiffs, it is urged by learned counsel for the appellants that cross-objections are bereft of any merit and therefore liable to be rejected. In support of his arguments, Mr. Saruparia has placed reliance on following judgments:
▪ ECE Industries Ltd. Vs. S.P. Real Estate Developers Pvt. Ltd. & Anr. [AIR 2009 SC (Supp) 2093] ▪ Mandali Ranganna & Ors. etc. Vs. T. Ramachandra & Ors. [AIR 2008 Supreme Court 2291] ▪ Narendra Kante Vs. Anuradha Kante & Ors. [AIR 2010 SC (Supp) 278].
(5 of 10) [CMA-1612/2018] Per contra, Mr. Usman Ghani, learned counsel appearing for the respondents submits that the learned trial Court in its discretion has partly allowed the application for temporary injunction, which is a just order and calls for no interference. It is also submitted by Mr. Ghani that respondent-plaintiffs have already amended the suit and furthermore their application under Order 39 Rule 2A is pending before the learned trial Court, wherein they have complained violation of temporary injunction order against the appellant. Learned counsel for the respondents, therefore, submits that any indulgence granted to the appellant in this appeal would prejudice the cause of respondent-plaintiffs, which is subject matter of the petition for contempt under Order 39 Rule 2A CPC. Learned counsel, Mr. Usman Ghani, contends that considering lis involved in the matter, it would not be appropriate to alter status quo order granted by the learned trial Court during pendency of the suit. Joining issue with the appellant, learned counsel further submits that alteration in the status quo order for allowing material changes in the immovable property to a party in a routine manner is not at all permissible and such discretion can only be exercised in exceptional circumstances which are not foreseeable in the present matter.
Pressing cross-objections, it is submitted by Mr. Usman Ghani that in view of subsequent events and amendment in the plaint, it would be just and proper to allow cross-objections and grant relief in toto as prayed in the application for temporary injunction. In support of his arguments, learned counsel has placed reliance on a judgment of Supreme Court in case of Maharwal Khewaji Trust (Regd.) Faridkot Vs. Baldev Dass [AIR 2005 SC 104].
(6 of 10) [CMA-1612/2018]
I have bestowed my consideration to the arguments
advanced by learned counsel for the parties on appeal as well as cross-objection, and perused the materials available on record.
Before proceeding to examine the afflictions of rival parties as projected in the memo of appeal and cross-objection, it would be just and appropriate to make judicial scrutiny of an appeal arising out of an order granting or refusing temporary injunction. Law is trite that granting temporary injunction is within the sole discretion of the Court of first instance. Any order passed by a Court in its discretion cannot be lightly interfered with by appellate authority and appellate court would be slow to interfer with the exercise of such discretion. 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 such inference with the trial Court's exercise of discretion. The appellate Court's power to interfere with the discretionary order of the trial Court is exercisable only when it comes to the conclusion that trial Court has acted unreasonably or capriciously or has ignored relevant facts.
This Court in Smt. Vimla Devi Vs. Jang Bahadur [AIR 1977 (Raj.) 196], while discussing limitations of the jurisdiction of appellate Court to interfere with an order passed by trial Court in deciding the application for grant of injunction, laid down the following principles:
"The order refusing temporary injunction is of a discretionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion by the trial Court and substitute for it its own discretion. The interference with the discretionary (7 of 10) [CMA-1612/2018] 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.
The mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence will also not justify interference.
The appellate Court would be acting 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."
Supreme Court in Wander Ltd. & Anr. Vs. Antox India P. Ltd. [1990 (Supp) SCC 727], while dilating on the scope of judicial review of the appellate Court against grant or refusal of temporary injunction by the trial 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."
The same view is further reiterated in Rajasthan State Electricity Board Vs. Mool Chand Jangir [1993 (3) WLC (Raj.) 338].
(8 of 10) [CMA-1612/2018] Now adverting to the lis involved in the matter, suffice it to observe that subject matter of the suit is immovable property wherein plaintiff-respondents have sought a decree for cancellation of sale-deeds and perpetual injunction. Essentially, the case set up by the respondent-plaintiffs is that the land sold to appellant and proforma respondent No.6 is 13 ft. wide towards its western side instead of 43 ft. and therefore construction beyond 13 ft. by the appellant cannot be permitted. Besides that, the respondent-plaintiffs have also prayed for perpetual injunction and now as per the version of learned counsel suit has been amended to incorporate subsequent events with desired relief. Therefore, in that background, even by considering unamended plaint, if the learned trial Court has partly allowed application for temporary injunction to restrain appellant from raising construction beyond 13 ft towards western side, in my view, it has not acted unreasonably or capriciously in exercise of its discretion. Normally, when the subject matter of the suit is immovable property, it is desirable that the nature of property is not to be altered substantially so as to create further complication and multiplicity of proceedings.
It is also noteworthy that respondent-plaintiffs have initiated contempt proceedings against the appellant resorting to Rule 2A of Order 39 CPC with a complaint about violation of temporary injunction order. Therefore, in the backdrop of facts and circumstances of the case, I record my satisfaction that the discretion exercised by the Court of first instance i.e. learned trial Court is just and reasonable. That being a possible view, (9 of 10) [CMA-1612/2018] therefore, cannot be faulted. The alternative plea of the appellant, to permit him for completing finishing work without claiming equity and demolishing the construction in the event of verdict being passed against him, appears to be quite alluring but not of substance in the peculiar facts and circumstances of the case. As a matter of fact, completion of finishing work would alter the nature and character of the property.
Upon consideration of the judgments relied upon by the learned counsel for the appellant, I am afraid those judgments cannot render any assistance to his cause and therefore are clearly distinguishable. I am also firmly of the view that case in hand is not projecting any exceptional circumstances wherein appellant can be allowed to carry out desired finishing works/alterations subject to imposition of certain conditions. My this view is fortified by the judgment of Supreme Court in Maharwal Khewaji Trust (supra) wherein the Court held:
"Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the (10 of 10) [CMA-1612/2018] respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored."
As regards cross-objections submitted by the respondent- plaintiffs, suffice it to observe that the learned trial Court has adequately safeguarded their rights during pendency of the suit and therefore the ambitious plea to grant relief of temporary injunction in toto cannot be countenanced. The learned trial Court in its discretion has granted indulgence in the matter by partly allowing temporary injunction application of the respondent- plaintiffs which is a just order and cannot be categorized as perverse or dehors the principles governing grant or refusal of temporary injunction.
In view of foregoing discussion, the appeal as well as cross- objections are hereby dismissed. However, before parting, it may be observed that looking to the nature of suit and the stakes of rival parties involved, it would be just and appropriate for the learned trial Court to proceed with the trial of main suit expeditiously and decide it as early as possible.
(P.K. LOHRA),J Powered by TCPDF (www.tcpdf.org)