Rajasthan High Court - Jodhpur
Pyarelal vs Sunil Kumar on 11 July, 2019
Equivalent citations: AIR 2019 RAJASTHAN 168, AIRONLINE 2019 RAJ 723, 2019 WLC(RAJ)(UC) 2 467, (2020) 1 RAJ LW 552
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1421/2019
1. Pyarelal S/o Shri Khiraj, Aged About 50 Years, B/c Mochi,
R/o Ward No.4, Raisinghnagar. Presently Residing At
Chandan Jewelers Ke Upper, Ward No. 23, Raisinghnagar,
Tehsil Raisinghnagar, District Sriganganagar. (Raj.)
2. Monika W/o Shri Pyarelal, Aged About 47 Years, B/c
Mochi, R/o Ward No.4, Raisinghnagar. Presently Residing
At Chandan Jewelers Ke Upper, Ward No. 23,
Raisinghnagar, Tehsil Raisinghnagar, District
Sriganganagar. (Raj.)
----Appellants
Versus
Sunil Kumar S/o Shri Hanuman Prasad, B/c Modhi (Nirvan), R/o
Flat No.604, Building No. 3, Chembur Nav Mitra Corportion
Housing Society, Sahakar Nagar Road No.1, Shail Colony,
Chembur, Mumbai
----Respondent
For Appellant(s) : Mr. Rajesh Panwar
For Respondent(s) : Mr. Vineet R. Dave
HON'BLE MR. JUSTICE P.K. LOHRA
Order 11/07/2019 Appellant-defendants have preferred this appeal under Order 43 Rule 1(r) CPC to assail order dated 16.03.2019, passed by Additional District Judge, Raisinghnagar, District Sri Ganganagar (for short, 'learned trial Court'). The learned trial Court, by the order impugned, partly allowed application of respondent-plaintiff under Order 39 Rule 1 & 2 CPC for grant of temporary injunction in a suit for specific performance of contract. While partly allowing the application for temporary injunction, learned trial (Downloaded on 11/07/2019 at 10:38:55 PM) (2 of 5) [CMA-1421/2019] Court has directed appellants not to alienate the suit property so as to create third party interest.
The facts, in brief, are that respondent-plaintiff instituted a civil suit for specific performance of agreement dated 02.02.2017 allegedly executed by appellants in his favour. In terms of the agreement, the appellants have agreed to sell shop No.162, ad- measuring 10ftx20ft situated in Mochi Bazar, Ward No.23, Raisinghnagar, for consideration amount of 49 lakhs. The agreement also contained recitals that about the consideration amount appellants have received, i.e., earnest money to the tune of Rs.5 Lakhs, and thereafter, further acknowledgment for receipt of a sum of Rs.8 Lakhs followed by Rs.2 Lakhs. It is further averred in the suit that despite readiness and willingness of respondent-plaintiff, the appellants have not performed their part of contract by executing sale-deed in his favour. Along with the suit, an application under Order 39 Rule 1 & 2 CPC is also filed praying therein temporary injunction. The application for temporary injunction is contested by appellants with a specific plea that agreement to sale is ex-facie spurious document. The learned trial Court, after examining the matter, more particularly, the requisite ingredients for grant of temporary injunction, recorded its finding that respondent-plaintiff has been able to prove prima facie case and two other necessary ingredients for grant of temporary injunction. With this finding, learned trial Court allowed application for temporary injunction and directed the appellants not to alienate the suit property so as to create third party interest.
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(3 of 5) [CMA-1421/2019] I have heard learned counsel for the parties and perused the impugned order.
There remains no quarrel that grant or refusal of temporary injunction is within the sole discretion of the Court of first instance and normally appellate Court is not expected to substitute its view. The appellant Court can very well interfere with the order passed by learned trial Court if it comes to the conclusion that the order impugned is perverse or dehors the sound legal principles governing the province of temporary injunction.
This Court in case of Vimla Devi Vs. Jang Bahadur [AIR 1977 (Raj.) 196] has examined the powers of appellate Court to interfere with the discretionary order in the matter of grant of temporary injunction and observed:
"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 (Downloaded on 11/07/2019 at 10:38:55 PM) (4 of 5) [CMA-1421/2019] 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 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 a subsequent judgment, the Supreme Court in case of Wander Ltd. & Anr. Vs. Antox India P. Ltd. [1990 (Supp) SCC 727] observed that appeal against grant or refusal of temporary injunction is appeal on principle. While dilating on the powers of appellate Court, the 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 (Downloaded on 11/07/2019 at 10:38:55 PM) (5 of 5) [CMA-1421/2019] 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."
Having regard to the facts and circumstances of the case and law on the subject, in my opinion, learned trial Court has exercised its discretion judiciously. Therefore, I feel disinclined to interfere with the discretionary order passed by learned trial Court.
Consequently, the appeal fails and same is hereby rejected. However, before parting, it may be observed that considering the lis involved in the matter, learned trial Court is expected to expedite the trial of the main suit and decide the same at the earliest.
(P.K. LOHRA),J 73-T.Singh/-
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