JUDGMENT 1. - The brief facts giving rise to this appeal, under order 43 rule 1 of the Code of Civil Procedure (the Code), against the order dated 27-9-1989 passed by the learned Additional District Judge, Jaipur City, Jaipur in Civil Misc Suit No. 55/89, are as under :Smt. Santosh Kumari wife of Shri Hardayal Singh, the appellant herein, had purchased a plot No. 44-A, Jobner Bagh, Station Road, Jaipur measuring 72'x30' from its previous owners vide sale deed dated 10-1-1966 registered on 18-1-1966 for Rs. 8,000/-. After purchasing the plot she constructed two storeyed house thereon and started residing in it with her family. A litigation started with a neighbour of the house and, during the course of litigation, some time Hardayal Singh and some time her father-in-law Achal Singh used to attend the court on her behalf and in that connection Achal Singh had taken from her the sale deed of the plot in question. The appellant's husband's brother Padam Singh, who was earlier residing in Assam, came to Jaipur in 1966 and was allowed to reside on the ground-floor portion of the house in question in which he also started his business. The appellant's father-in-law Achal Singh, who was a Government servant and was posted at Jaipur at that time was also residing with the appellant and her husband in the house in question. After some time the appellant shifted to her village Kashoombi, but neither Padam Singh nor Achal Singh vacated the house and in November, 1971 the appellant served a notice through her counsel against order of A.D.J., Jaipur City, Jaipur dated 27.9-89 in Civil Misc. Suit No. 35/89 on them asking them to vacate the house and, on receipt of such a notice, Achal Singh replied that the house in question belonged to him and he had gifted half share therein to Jaideep Singh son of Padam Singh by a registered gift deed dated 2-4-1971. Suit No. 35/89 on them asking them to vacate the house and, on receipt of such a notice, Achal Singh replied that the house in question belonged to him and he had gifted half share therein to Jaideep Singh son of Padam Singh by a registered gift deed dated 2-4-1971. The appellant, thereupon, filed a suit on 30-3-1974 pleading that she was the owner of the plot in question and that Achal Singh had no right to make any gift in respect thereof and praying for a decree for declaration that the gift deed made by Achal Singh in favour of Jaideep Singh was void as against her and a decree for possession of the house against Achal Singh, Padam Singh and Jaideep singh besides claiming the mesne profits against them. Achal Singh contested the suit on the ground that he had purchased the plot in question benami in the name of the appellant and that he only constructed the house thereon, out of his earnings, and that he had the right to make the gift in favour of his grand son Jaideep Singh son of Padam Singh. Padam Singh and his son Jaideep Singh also contested the suit on the same ground. The suit was tried by the learned Additional District Judge No. 3, Jaipur City, Jaipur, who, vide the judgment dated 26-3-1985 decreed the suit in favour of the appellant and against the above said three defendants. The appeal filed by Jaideep Singh against the said judgment and decree was registered in this court as SB Civil First Appeal No. 42/85 and was dismissed by this court vide the judgment dated 8-3-1989. 2. The appeal filed by Jaideep Singh against the said judgment and decree was registered in this court as SB Civil First Appeal No. 42/85 and was dismissed by this court vide the judgment dated 8-3-1989. 2. On 22-8-1989, Devi Singh, his son Prem Singh and his daughter-in-law Smt. Manorama wife of Prem Singh (the plaintiffs) filed the suit, out of which this appeal has arisen, against the defendant-appellant with the allegations that half share received by way of gift deed dated 2-4-1971 by Jaideep Singh from his grand father, was sold by Jaideep Singh by three sale deeds executed on 28-7-1984, 31-71984 and 2-8-1984 in favour of Smt. Manorama, Prem Singh and Devi Singh respectively and that they were put in possession of the said portions sold to them by Jaideep Singh and while an appeal against the decree and judgment obtained by the appellant against Jaideep Singh, Padam Singh and Achal Singh was pending in the High Court, the appellant had offered to sell the entire plot in question to the plaintiffs, who had agreed to purchase the same for Rs. 2,11,000/- vide agreement dated 17-4-1986 and a sum of Rs. 51,000/- was paid by the plaintiffs to the appellant and the remaining sum of Rs. 1,61,000/- was to be received by the appellant from the plaintiffs on executing the sale deed within one month from the date of decision of the appeal filed by Jaideep Singh in the High Court and the possession of the portion already purchased by the plaintiffs from Jaideep Singh and delivered to them by Jaideep Singh was recognised by the appellant, who had also delivered the possession of the remaining portion of the house to the plaintiffs of receiving the sum of Rs. 51,000/- as advance and that, according to the terms of agreement, in case, Jaideep Singh succeeded in the appeal, the sum of Rs. 51,000/- paid by way of advance to the appellant was not to be refunded by her and that she would send intimation about the decision of the appeal to the plaintiffs within one month from the date thereof. 51,000/- paid by way of advance to the appellant was not to be refunded by her and that she would send intimation about the decision of the appeal to the plaintiffs within one month from the date thereof. It was alleged that the prices of the properties having appreciated, the intention of the appellant became dishonest and, after decision of the appeal, she refused to sell the property in dispute to the plaintiffs and vide letter dated 20-3-1989 she wrote to the plaintiffs that she did not want to sell the same to them and asked them to receive back the sum of Rs. 51,000/- paid by way of advance to her. They pleaded that they were always ready and willing to perform their part of the contract by paying the balance amount to the appellant and that the appellant was trying to execute the decree obtained by her against Jaideep Singh. Along with the suit the plaintiffs also moved an application under order 39 rules 1 and 2 of the Code with a prayer that the appellant be restrained by way of temporary injunction from taking possession of the property in dispute from the plaintiffs or from interfering with their possession in respect thereof in any way. 3. The suit is being contested by the appellant, who also opposed the application for grant of temporary injunction. In the written statement the appellant denied having ever agreed to sell the property in dispute to the plaintiffs or having received the sum of Rs. 51,000/- by way of advance from them, and pleaded that the agreement dated 17-4-1986 and the letter dated 20-3-1989 were forged documents. In the written statement the appellant denied having ever agreed to sell the property in dispute to the plaintiffs or having received the sum of Rs. 51,000/- by way of advance from them, and pleaded that the agreement dated 17-4-1986 and the letter dated 20-3-1989 were forged documents. It has further been pleaded that Prem Singh is a property dealer and that during the pendency of the appeal in the High Court he along with Jaideep Singh, Mahesh Acharya and Durga Prasad, clerk and the Reader respectively in Sessions Court and Mangal Chand Sharma, the power of attorney holder of Jaideep Singh had threatened to kill the appellant's husband for taking possession of the property in dispute and that her husband had lodged a report in Police Station, Bani Park, Jaipur vide No. 445 dated 7-9-1985 and that Mangal Chand Sharma had lodged a false report against the relations of the appellant vide FIR No. 254 dated 8-9-1985 under sections 448 and 379 I.P.C. and in this connection the appellant's husband had made a complaint to the Superintendent of Police, Jaipur against Jaideep Singh, Mangal Chand Sharma, Prem Singh, Durga Prasad and Mahesh Acharya and after investigation the police found the report lodged by Mangal Chand Sharma to be false and had submitted the Final Report on 6-2-1986 and that on 16-9-1985 the abovesaid persons had lodged a report against the appellant's husband Hardayal Singh, her son Gopal Singh, her 85 years old father Kan Singh and her brother, who resides in Delhi, vide FIR No. 146/85 in Police Station, Vishvakarma, Jaipur and in this connection a complaint was made to the D.I.G., Jaipur on 7-10-1985 by the husband of the appellant against the abovesaid persons and, after investigation, the Final Report was submitted by the police on 3-12-1985. She further pleaded that the plaintiffs along with the above said other persons had formed a gang with a view to take the property of the appellant and had forged the documents and that there was no reason for the appellant to have agreed to sell the property in dispute of the value of more than Rs. 15 lacs for the sum of Rs. 2,11,000/-. On these grounds the appellant prayed that the suit filed by the plaintiffs and the application for grant of temporary injunction be dismissed. 15 lacs for the sum of Rs. 2,11,000/-. On these grounds the appellant prayed that the suit filed by the plaintiffs and the application for grant of temporary injunction be dismissed. The documents in the form of copy of the judgment passed by this court in the appeal filed by Jaideep Singh, the copies of the applications moved on behalf of the appellant for execution of the decree under appeal and of certain orders passed by this court, the copies of the police reports/ complaints lodged by the husband of the appellant and against him besides the copies of the register of the Notary Public showing that the document in question was shown to have been executed by the appellant vide serial No. 515 dated 17-4- 1986 as also on 19-4-1986 and that there was cutting in the register and further that the seal used by the Notary Public in the year 1986 on other documents was different from the seal used on the agreement dated 17-4-1986 relied upon by the plaintiffs, were also filed on record. 4. After hearing the learned counsel for the parties, the learned trial court observed that the agreement in question was attested by a Notary Public and by two witnesses and that one of them had also filed an affidavit and that the said agreement could not be taken to be forged specially when no affidavit had been filed by the appellant and also that the applications etc. moved by the appellant in the High Court during the pendency of the appeal filed by Jaideep Singh were of no consequence as the plaintiffs were not parties there to and there was prima fade case in favour of the plaintiffs in whose favour the balance of convenience also lie. On the question of irreparable loss, the learned trial court observed that the learned counsel for the plaintiffs had stated that the plaintiffs were getting a monthly rent of Rs. 1100/- from the tenants in the property in dispute and that the plaintiffs were also in possession of a part of the property in dispute and considering that the appellant had been paid only Rs. 51,000/- and was still to receive the balance sum the plaintiffs should be directed to pay to her Rs.2500/- per month by way of compensation. 1100/- from the tenants in the property in dispute and that the plaintiffs were also in possession of a part of the property in dispute and considering that the appellant had been paid only Rs. 51,000/- and was still to receive the balance sum the plaintiffs should be directed to pay to her Rs.2500/- per month by way of compensation. With these observations, vide the impugned order, the learned trial court has allowed the application filed by the plaintiffs under order 39 rules 1 and 2 of the Code and has restrained the appellant from executing the decree obtained by her against Jaideep Singh and from interfering with the possession of the property in dispute which has been prima facie held to be in the possession of the plaintiffs by virtue of the agreement dated 17-4-1986. Feeling aggrieved, the appellant has approached this court by filing this appeal. 5. I have heard the learned counsel for the parties and have also perused the record of the case. 6. The copy of the report No. 445 dated 7-9-1985 of Police Station, Bani Park, Jaipur shows that the said report was got registered at 9.50 PM by Shri Hardayal Singh, the husband of the appellant, to the effect that the case between his wife and Jaideep Singh was pending in the High Court and that, that evening Jaideep Singh accompanied by Durga Prasad and Mahesh Chand Sharma, the employees of the Sessions Court, Jaipur, and a property dealer Prem Singh (plaintiff No. 2) had come to his house demanding that they should be put in possession of the property in dispute failing which he would be killed. The copy of the application sent by Hardayal Singh to the Superintendent of Police, Jaipur shows that he had complained against the abovesaid persons including Prem Singh that they had formed a gang and were in habit of grabbing the properties belonging to others and that with a view to grab the property in dispute had got registered a false FIR No. 254 dated 8-9-1985 under sections 448 and 379 IPC and praying that independent investigation of the case be got made and the Superintendent of Police had forward the matter to the Station House Officer, Bani Park, Jaipur for necessary action. The copy of application dated 7-10-1985 again shows that the husband of the appellant had written to the D.I.G., Jaipur Range, Jaipur that the abovesaid persons (including Prem Singh-plaintiff No. 2) had been trying to implicate him in various cases and that they had got recorded a false F.I.R. through Jaideep Singh at Police Station, Vishvakarma, Jaipur against him, his son, his brother-in-law- and his father-in-law under sections 147, 452,149, 380 and 323 IPC and had requested him to get the matter investigated. These three documents show that the appellant's husband has been complaining throughout that Prem Singh (plaintiff No. 2) along with other persons had been trying to grab the property in dispute by threatening him and by implicating him and other relations by getting registered cases against them in police stations. 7. The copies of the orders dated 13-5-1986 and 22-5-1986 passed by this court on the applications moved during the pendency of the appeal filed by Jaideep Singh against the appellant, show that after the admission of the appeal of Jaideep Singh a conditional stay order was passed, but, in spite of the fact that the condition had not been complied with by Jaideep Singh (the appellant of the said case), the appellant herein, who was the respondent in that case, could not get the decree for possession executed. 8. The sale deeds, under which half share in the plot in dispute is stated to have been purchased by the plaintiffs from Jaideep Singh, show that ⅓rd share in the abovesaid half share was sold to each one of the three plaintiffs by Jaideep Singh for Rs. 49,000/- and, in this way, he had sold his half share, which was under cloud, for Rs. 1,47,000/- between 28-7-1984 to 2-8-1984. The copy of the judgment dated 8-3-1989 under which the appeal filed by Jaideep Singh was dismissed shows that no evidence was produced by Achal Singh to show that he was the real owner of the property in dispute and he had also invested his funds for constructing the house thereon and the appellant was he benami owner thereof, and no statements were made by Padam Singh and Jaideep Singh also in this respect. The judgment further shows that the appellant, who was the respondent in that appeal, was being represented by Shri S. M. Mehta, a senior Advocate of this court and who is presently the Advocate General of the State of Rajasthan. No reason is coming forward as to why if the half share in the plot in dispute, which was under cloud in 1984 cold fetch the price of Rs. 1,47,000/-, the entire property, including the abovesaid share of Jaideep Singh, would be agreed to be sold for Rs. 2,11,000/- in April, 1986 and, even otherwise, the property in dispute, which has been mentioned in the plaint as plot in dispute, actually consists of the plot and the two storeyed house constructed thereon as can be seen from the copy of the judgment dated 8-3-1989 announced by this court while dismissing the appeal of Jaideep Singh. Even if the case pleaded in the written statement which is not rebutted by any replication or otherwise that the property in dispute was of the value of more than Rs. 15 Lacs is ignored, the fact cannot be lost sight that even if there was no increase in the price of the immovable property between July/August, 1984 to April, 1986, no reason is coming forward as to why the entire property in dispute would be agreed to be sold at a price which would be less than the price which was fetched for selling half share, which was under cloud, by Jaideep Singh in 1984. 9. It is not disputed before me that only Jaideep Singh had challenged the decree passed by the learned trial court in the earlier suit filed by the appellant against Jaideep Singh, Achal Singh and Padam Singh and that rights of Jaideep Singh has been purchased by the plaintiffs during the pendency of the suit in 1984 and not only no application for substitution as appellants was made by the plaintiffs on the ground that they had acquired the rights in the share of Jaideep Singh-appellant and should be substituted in his place but also they did not even make any application for being brought on record as the interested parties and to bring to the notice of the court the fact about their having entered into agreement in respect of the entire property in dispute including the share which was under dispute in the said appeal. It is difficult to believe, prima facie, that, if, in fact, the agreement had been entered into between the parties, the plaintiffs, who had already purchased the share of Jaideep Singh and had been put in possession of the entire property in dispute, would not have applied to this court for being substituted as the appellants in place of Jaideep Singh and to get the appeal dismissed as withdrawn but to continue to suffer risk of Jaideep Singh succeeding in the appeal and their losing the sum of Rs. 51,000/- paid by way of advance to the appellant in terms of the agreement in question. It is also not disputed that, as noted in the impugned order, the counsel for the plaintiffs had stated that the portion which was in occupation of the tenants was fetching Rs. 1100/- per month by way of rent and the remaining portion was in possession of the plaintiffs. It is also difficult to believe that only on receiving a sum of Rs. 51,000/- the appellant would put the plaintiffs in possession with a right to receive Rs. 1100/- every month by way of rent, which amount would come to 24% per annum of interest on the sum of Rs. 51,000/-. 10. The record further shows that the pleadings in the suit in question have been signed and verified by Hardayal Singh, the husband of the appellant, who has also filed an affidavit dated 10-8-1989 in support of the reply to the application and an affidavit dated 30-8-1989 controverting the contents of the affidavit filed by Girdhari Lal, one of the witnesses of the agreement, but the learned trial court without seeing the record has observed that no affidavit had been filed on behalf of the appellant in support of the reply to the application and as such the agreement in question has to be taken as genuine one at this stage. It appears that the learned trial court did not look into the record and as such, ignored and failed to take into consideration the abovesaid facts and had those been taken into consideration along with the fact that the entries in the register of the Notary Public had cutting and also that the entries showed that the document had been executed by the appellant on 17-4-1986 and 19-4-1986 against serial No. 515 and different seal and been used by the Notary Public on the other documents executed in 1986 than the one used on the agreement in question, the learned trial court not have come to the conclusion that prima facie the agreement was genuine. 11. It is true that it is within the discretion of the learned trial court to grant or to refuse to grant a temporary injunction and, ordinarily, an appellate court should not disturb the discretion so exercised by the learned trial court, but it cannot be disputed that this discretion has to be exercised by the learned trial court judicially and after taking into consideration all the facts and circumstances of the case and after perusing the documents produced on record by the parties and not only on the basis of the allegations made in the plaint and on the basis of the documents produced by the plaintiff. In my view, if without taking into consideration all the material produced before it the learned trial court grants temporary injunction in favour of a party, it would result into great injustice to the party against whom it has been granted and, such an order would be nothing short of an abuse of the process of the court. 12. While passing the impugned order the learned trial court having not taken into consideration the material, though on record and relevant for the purpose of decision of the application, his prima facie findings can be said to be nothing but perverse and, therefore, the impugned order, which has restrained the appellant from reaping the fruits of the decree obtained by her against Jaideep Singh, Achal Singh and Padam Singh in the suit in question after many years of litigation, has resulted into great injustice to her and cannot be allowed to stand. 13. 13. Consequently, I accept this appeal, set aside the impugned order dated 27-9-1989 and dismiss the application under order 39 rules 1 and 2 of the Code filed by the plaintiffs with costs throughout, which, in the circumstances of the case,are assessed at Rs. 5,000/-.Appeal accepted with cost. *******