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1998 DIGILAW 1125 (RAJ)

Kishanlal v. Narayan

1998-10-29

MOHD.YAMIN

body1998
Honble YAMIN, J.–This revision has been directed against the order of learned Civil Judge (S.D.) Pratapgarh dated 18.4.95 by which he issued temporary injunctions against the petitioners in appeal No. 64/95 which was filed against the order of Munsif, Partapgarh dated 3.12.93 in which the learned Munsif had dismissed the application under Order 39 Rule 1 and 2 CPC. (2). I have heard the learned counsel for both the parties and have gone through the order passed by learned trial Judge as well as appellate Judge. (3). Plaintiff Narayan has agricultural land in village Mawlana. There is a well in land bearing No.47. He grows maize, chillies, onions, mustard, wheat, gram, carlic and opium etc. in the fields. There is a way out of abadi of the village which leads to his fields and well. He has been using the way since long. The way is on the higher pedestal while the fields are on the lower level. On the western side of the fields of the plaintiff there exist fields of defendants. There is a nala in khasra No. 1 and 2. An anicut has been constructed by the State Government on this nala. Defendants take water from this anicut unauthorisedly and they have made a `dho- ra (kachi nali) leading to their fields. Water seepage from this kacha nala and damages the crop of the plaintiffs. When objected to by the plaintiff the defendants agreed that they would fix a pipe so that the water may not seep and may not damage the crop of the plaintiff. Before filing the suit the defendants started to dig another `dhora and carry water to their fields from the said anicut unauthorisedly which would definitely damange the crop of the plaintiffs. The plaintiffs therefore filed a suit for permanent injunction and an application for temporary injunction was also filed. (4). The case of the defendants was that the fields of the plaintiff were about 30 feet away from kacha `dhora. It was further pleaded that the anicut was constru- cted by the State Government 10 or 11 years before where the water of rains stocks. There existed a `dhora in land bearing No.37. The anicut was constructed for the purpose of agriculture by the government and the water flows from it to different fields for the purpose of irrigation. The plaintiff does not suffer because of it at all. There existed a `dhora in land bearing No.37. The anicut was constructed for the purpose of agriculture by the government and the water flows from it to different fields for the purpose of irrigation. The plaintiff does not suffer because of it at all. It was further pleaded that the defendants did not start digging a new `dhora inst- ead they were cleaning the old `dhora and then it was the plaintiff who interferred. The `dhora is situated on land bearing No. 37 and 44 and the plaintiffs have no right or title over it and have no authority to put obstruction to it. Actually they are the plaintiffs who wanted the defendants not to irrigate their fields No.65, 66 and 67. It has been further pleaded that the water does not seep from the `dhora. After having heard and after having gone through the whole evidence submitted by the parties, the learned Munsif came to the conclusion that the plaintiff had no prima facie case. He did not find the other two points in favour of the plaintiff and dismissed the application. On appeal the learned Civil Judge, though agreed with the findings of the learned Munsif, even then he issued injunction by partly allowing the appeal. His order is as follows:- ^^vr% vihy vihykaV vakr bl lhek rd Lohdkj dh tkrh gS fd vizkFkhZ@jsLiksaMsaV ,slk dksbZ Hkh dk;Z ugha djs ftlls vihydrkZ izkFkhZx.k vius [ksrksa ij vkus & tkus] cSyxkM+h o lken ds fy, jkLrk can gks tkosa ;k ck/kk mRiUu gks rFkk /khjs dk fdlh izdkj ls fjlko u gks ftlls fd izkFkhZ@vihykaV dh Qlys u"V ugha gksaA** (5). Aggrieved by this order the petitioners-defendants have filed this revision. (6). Learned counsel for the petitioners submitted that in view of Vimal Divi vs. Jung Bahadur (1) and other rulings the orders of temporary injunction are dis- cretionary and can be interferred with only when the lower Court has exercised its discretion arbitrarily.The settled law is that the Judge of the appellate Court would not substitute its own discretion merely because he might have come to a different conclusion. The appellate Court can interfere only when the trial Court had acted arbitrarily, perversely or in disregard of sound legal principles or without consider- ing all the relevant record. The appellate Court can interfere only when the trial Court had acted arbitrarily, perversely or in disregard of sound legal principles or without consider- ing all the relevant record. The trial Court had come to the conclusion in this case that there was no prima facie case of the plaintiff respondent. This was agreed to by the learned appellate Judge but even then the learned appellate Judge interfered the discretionary order against the sound principles of law and passed interim injunction in the above words as quoted in Hindi. (7). Learned counsel for the respondent tried to justify the order of the learned appellate Judge and cited Chhaganlal and others vs. Muktilal (2), wherein it was observed that grant of injunction or refusal is the discretionary power of the Courts below should not be interferred if it has been exercised in good faith. In Chhaganlals case (supra), both the Courts below had found prima facie case in favour of the plaintiff and it was a finding of fact and could not be interferred in revision. (8). Here the trial Court had dismissed the application of the plaintiff finding that there was no prima facie case in his favour. The appellate Court affirmed this finding even then passed the impugned order legality of which has been challenged by the defendant appellants before this Court. Learned counsel for the respondent submitted that the appellate Court has not committed any jurisdictional error because it had jurisdiction to examine the case and, therefore, this Court should not interfere under its revisional powers given to it under Section 115 of CPC. In a given case the appellate Court may be correct in reversing the order of the trial Judge but that can be done only within the purview of law i.e. if the order of trial Judge is perverse or against the principles of law. But that finding must be recorded by the appellate Judge. In the case in hand the appellate Judge instead had affirmed the finding of the trial Judge and even then has interferred. Such a discretionary power by the appellate Court cannot be said to have been exercised properly. But that finding must be recorded by the appellate Judge. In the case in hand the appellate Judge instead had affirmed the finding of the trial Judge and even then has interferred. Such a discretionary power by the appellate Court cannot be said to have been exercised properly. After having gone through the orders of both the courts below I am of the view that the appellate Judge by granting temporary injunction in the above quoted words in Hindi has not correctly exercised his jurisdiction as he has himself affirmed the finding of the trial Court itself. It could not have interferred with the order of the trial Judge unless it has come to the conclusion that the order of the trial Judge was against the sound principles of law as enunciated in Vimla Devi vs. Jung Bahadurs case (supra). (9). In view of above discussion, I am of the view that the appellate Judge has wrongly exercised the jurisdiction vested in him ad the order calls for interference under Section 115 CPC. (10). Consequently, this revision petition is allowed and the order of appellate Judge granting injunction is set aside. No orders as to costs. (11). The appellate Judge here is Shri Shantilal Chouhan who is now a member of Rajasthan Higher Judicial Service. The Registrar General will be so good as to send a copy of this order to the concerned District Judge under whom Shri Chouhan is serving now so that there may be periodic inspection of his work with a view to ensuring that he is not committing the same mistakes with impunity.