Rajasthan High Court - Jodhpur
Hukam Singh vs Khubdan on 23 January, 2019
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1820/2018
Hukam Singh S/o Shri Jog Singh, Aged About 55 Years, By Caste
Rajput, Resident Of Sajiyali, Tehsil Pachpadra District Barmer
----Appellant
Versus
1. Khubdan S/o Shri Roopdan Charan, By Caste Charan,
Resident Of Koduka, Tehsil - Pachpadra, District Barmer.
2. Smt. Lehar Kanwar W/o Shri Khubdan,, By Caste Charan ,
Resident Of Koduka, Tehsil Pachpadra, District Barmer. At
Present Rai Colony, Beriyo Ka Bas, Barmer, District
Barmer.
3. Smt. Pushpa W/o Shri Jalam Singh, Daughter Of Hsi
Khubdan By Caste Charan, Resident Of Village Sarwadi,
Tehsil - Siwana, District - Barmer. At Present Godiji Ka
Wadiya
4. Rewatdan S/o Shri Khubdan, By Caste Charan, Resident
Of Indra Nagar, Barmer, District Barmer.
----Respondents
For Appellant(s) : None present
For Respondent(s) : Mr. Bhavit Sharma
HON'BLE MR. JUSTICE P.K. LOHRA
Order 23/01/2019 Appellant-plaintiff has preferred this appeal under Order 43 Rule 1 (r) read with Section 104 CPC to challenge order dated 11.07.2018 passed by Additional District and Sessions Judge No.2, Barmer (for short, 'learned trial Court'). By the order impugned, learned trial Court has dismissed application of the appellant- plaintiff under Order 39 Rule 1 & 2 CPC for grant of temporary injunction in a suit for specific performance of contract.
(2 of 4) [CMA-1820/2018] I have heard learned counsel for the respondents and perused the impugned order and other materials available on record.
Upon perusal of the impugned order, it is crystal clear that learned trial Court has made sincere endeavour to examine prima facie case in favour of appellant and ultimately recorded a negative finding. Likewise, learned trial Court has also recorded finding on two other necessary ingredients for grant of injunction against the appellant.
Law is trite that grant or refusal of temporary injunction is within sole discretion of the Court of first instance and normally appellate Courts are not expected to interfere with the discretionary order of trial Court. The appellate Court can only interfere with if it is found that the order is perverse or passed dehors the province of law governing grant or refusal of temporary injunction. Reliance in this behalf can be profitably made to a celebrated decision of this Court in Smt. Vimla Devi Vs. Jang Bahadur [AIR 1977 (Raj.) 196], wherein Court has held :
"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 (3 of 4) [CMA-1820/2018] 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 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."
Later on, Supreme Court has also examined the powers of appellate Court in relation to appeals against order of granting or refusing injunctions. Supreme Court in Wander Ltd. & Anr. Vs. Antox India P. Ltd. [1990 (Supp) SCC 727], has observed that such appeal cannot be considered as akin to regular first appeal as it is an appeal on principles. 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 (4 of 4) [CMA-1820/2018] 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."
In view of the fact that learned trial Court has exercised its discretion judiciously, while rejecting prayer for temporary injunction, in my opinion, no case for interference is made out.
Consequently, the appeal fails and the same is hereby rejected.
(P.K. LOHRA),J 17-Bharti/-
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