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Rajasthan High Court · body

1995 DIGILAW 926 (RAJ)

Ganchha Samaj, Jodhpur v. Om Prakash Sharma

1995-10-11

R.R.YADAV

body1995
Honble YADAV, J. – The instant revision has been filed against the order dated 28.4.1995 passed by learned Additional Distt. Judge, No.2, Jodhpur in Civil Misc. Appeal No. 37/95 setting aside the order passed by the learned Additional Civil Judge (J.D.) No. 2, Jodhpur in Civil Misc. Application No. 371/1993 on 27.1.1995. (2). The brief facts necessary to be noticed for disposal of the instant revision are that the revisionist filed a civil suit for permanent injunction restraining the non-petitioner No.1 not to make alteration himself or through his agent and also not to take possession over the roof of the shop by giving shape of staircase. It is also prayed that the non-petitioner No.1 should be restrained to take the possession of the adjacent land which is a Khalsa land. (3). Alongwith aforesaid civil suit the plaintiff revisionist filed an application for grant of temporary injunction under O.39 Rule 1 and 2 CPC. (4). After service of notice the non-petitioner No.1 filed a detailed reply denying the averments made in the plaint and he opposed the grant of temporary injunction. (5). The learned trial Court after hearing the arguments on behalf of the parties granted temporary injunction in favour of the revisionist and against the non-petitioner No.1 restraining him not to make any alteration in the shop, not to take possession over the roof, not to construct staircase and not to raise any illegal construction till the final disposal of the suit. (6). Aggrieved against the order granting temporary injunction the non-petitioner No.1 preferred an appeal before the learned District Judge, Jodhpur who transferred it for disposal in accordance with law to learned Addl. District Judge No.2, Jodhpur. The learned Addl. District Judge No.2, Jodhpur set aside the temporary injunction granted by the learned trial Court substituting his discre- tion in place of the discretion exercised by the learned trial Court. (7). Aggrieved against the substitution of the discretion by the learned lower appellate Court in place of the discretion exercised by the learned trial Court to revisionist has filed the instant revision before this Court. (8). I have heard the learned counsel for the parties at length. (9). (7). Aggrieved against the substitution of the discretion by the learned lower appellate Court in place of the discretion exercised by the learned trial Court to revisionist has filed the instant revision before this Court. (8). I have heard the learned counsel for the parties at length. (9). According to the arguments of the learned counsel for the revisionist the learned lower appellate Court has no jurisdiction to substitute its discretion in place of the discretion exercised by the learned trial Court unless it is established that the learned trial Court has granted the temporary injunction arbitrarily, perversely or against the sound principle of law. According to the learned counsel for the revisionist none of the grounds for setting aside the discretion exercised by the learned trial Court is made out in the present case. (10). It is next contended by the learned counsel for the revisionist that before setting aside the order passed by the learned trial Court it was incumbent upon the learned lower appellate Court to weigh and compare the mischief, hardship or inconvenience likely to occur from refusing the relief to the revisionist. (11). Learned counsel appearing on behalf of the non-petitioner No.1 refuted the aforesaid arguments and he strenuously supported the order passed by the learned lower appellate Court. (12). In my considered opinion the learned lower appellate Court has acted in exercise of its jurisdiction illegally with material irregularly in setting aside the order passed by the learned trial Court granting temporary injunction under O.39 Rr.1 and 2 CPC. (13). In the present case the learned lower appellate Court has no jurisdic- tion to set aside the discretion exercised by the learned trial Court but it was necessary only to consider whether the view taken by the learned trial Court is possible view on the material available on record or not. The learned lower appellate Court has no jurisdiction to substitute its discretion on the basis of some material as he was not agreeable with the conclusion arrived at by the learned trial Court. (14). It is apparent from the perusal of the impugned order passed by the learned lower appellate Court that before refusing temporary injunction under O. 39 Rr.1 and 2 CPC the learned lower appellate Court has not addressed itself about comparative mischief, hardship and inconvenience likely to occur from refusing the relief to the revisionist. (14). It is apparent from the perusal of the impugned order passed by the learned lower appellate Court that before refusing temporary injunction under O. 39 Rr.1 and 2 CPC the learned lower appellate Court has not addressed itself about comparative mischief, hardship and inconvenience likely to occur from refusing the relief to the revisionist. The learned lower appellate Court has not properly weigh conflicting probabilities in exercise of its discretion judicially and judiciously. In the present case in my considered opinion the learned lower appellate Court has failed to weigh the need of the plaintiff revisionist against need of the defendant opposite party while deciding where the balance of convenience lies. (15). I am not satisfied with the finding of the learned lower appellate Court to the effect that the tenancy over the shop No.11 cannot be imagined without including roof in the tenancy of the tenant. A pointed question was asked to the learned counsel for the non-petitioner No.1 as to how the roof of shop No.11 is bound to be included in the tenancy of non-petitioner No.1? Indisputably there are other shops also in the premises which are occupied by other tenants of the revisionist but none of them are claiming that roof above their shops are included in their tenancy. The revisionist landlord has raised constructions over roof of these shops which are either in his possession or let out to others. It is common phenomenon known to us that ground floor shop/shops can be let out by landlord to one tenant and first or second floor shops if any can be let out to some other tenant or tenants. (16). The judicial restraint does not permit me to observe more than necessary. Suffice it to say that the learned lower appellate Court has no jurisdiction whatsoever to substitute its discretion in place of discretion exercised by the learned trial Court in granting temporary injunction under O.39 Rr.1 and 2 CPC simply on the ground that he was not agreeable with the conclusion arrived at by the learned trial Court on the same facts and circumstances. (17). The aforesaid question came upon for consideration before me in the case of Sarpanch, Gram Panchayat vs. Meghe Khan & Ors. (17). The aforesaid question came upon for consideration before me in the case of Sarpanch, Gram Panchayat vs. Meghe Khan & Ors. (1) where this Court ruled in para No.5 thus :– ``5–It must be remembered that discretion exercised by the learned trial Court in granting or refusing temporary injunction, cannot be substituted by the learned appellate Court or revisional Court lightly unless it is established before the learned appellate Court or revisional Court that the trial Court has either granted or refused temporary injunction capriciously, perversely and against the sound principle of law. In my considered opinion, in the present case, none of the grounds stated above had been made out by the plaintiff-opposite parties before the learned lower appellate Court yet the learned lower appellate Court has set aside the discretionary order passed by the learned trial Court and substituted by its own discretion granting temporary injunction under O.39 Rr. 1 and 2 CPC in favour of the plaintiff-opposite parties No.1 to 7. (18). As a result of the aforementioned discussion the order passed by the learned lower appellate Court dated 28.4.1995 is hereby set aside and the instant revision is allowed and the order passed by the learned trial Court on 27.1.1995 is restored. (19). In the peculiar facts and circumstances of this case both the parties are directed to bear their own costs.