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2003 DIGILAW 1209 (RAJ)

Mohini Devi Ors. v. State of Rajasthan

2003-08-28

PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the petitioner and the counsel for the caveator non-petitioner No.2. 2. The petitioners-plaintiffs are aggrieved against the orders of the trial Court dated 19.2.2003 by which the trial Court dismissed the injunction application of the petitioners and against the order dated 10.3.2003 by which the appellate Court dismissed the appeal of the petitioners-plaintiffs against the trial Court's order dated 19.2.2003. 3. Brief facts of the case are that the plaintiffs, who are the wife and sons of deceased-Achal Singh, filed suit for permanent injunction against the defendants non-petitioners; State of Rajasthan, U.I.T. Jodhpur and Devanand Gehlot who is son of deceased-Achal Singh and plaintiff No. 1 and brother of plaintiffs No. 2 & 3 The plaintiffs alleged that the property in dispute described in para No. 2 of the plaint is the Patta Sud land of theirs and defendant No. 3's ancestor Anal Singh. Patta was granted by the Mahamandir Thikana in the Samvat Year 1982. The original Patta was lost; therefore, on the application of Achal Singh, new Patta was issued by the Mahamandir Thikana on 12.10.1954. From the period of life time of Achal Singh, Achal Singh as well as plaintiffs and defendant No. 3 were in possession of the plot in dispute and after the death of Achal Singh in the year 1985, the plaintiff and defendant No. 3 are in possession of the plot in dispute. It is alleged that in the month of July, 2002, employee of defendant No. 2 along with defendant No. 2's officers started demolishing the stone-slabs which were put on the plot by the plaintiffs, upon which the plaintiffs raised objections and informed the employees and officers of defendant No. 2 that the property in dispute is the Patta-Sud land of the plaintiffs. The employees and the officers of the defendant No.2 directed the plaintiffs to bring the Patta otherwise defendant No.2 U.I.T. Jodhpur will raise a community building over the land in dispute. 4. It is submitted that despite showing photo-copy of the Patta. the officers of the defendant No. 2 insisted that plaintiffs should bring the original Patta. According to the plaintiffs, the Patta of the property was lying with the State Bank of Bikaner and Jaipur in security against some loan advanced by the bank. The plaintiffs could get the Patta from the Bank only on 14.1.2003. the officers of the defendant No. 2 insisted that plaintiffs should bring the original Patta. According to the plaintiffs, the Patta of the property was lying with the State Bank of Bikaner and Jaipur in security against some loan advanced by the bank. The plaintiffs could get the Patta from the Bank only on 14.1.2003. Plaintiffs though mentioned in the plaint that the employees of the defendant No. 2 U.I.T. Jodhpur started demolishing plaintiffs stone slabs in the month July 2002 but filed the suit for injunction in the month January 2003, without disclosing any date or even specific month in the plaint on the allegations that the defendant No. 2 through its employees, started digging the foundation for raising construction of building. According to the plaintiffs the action of defendant No. 2 was high handed and illegal. The plaintiffs further submitted that defendant No. 2 is using the money from quota of either M.L.A. or M.P. as they are having money in their discretionary quota to invest public money. According to the plaintiffs, the defendant No. 2 has no right to invest public money illegally and also has no right to raise construction over the plaintiff's Patta-Sud land. It is stated in the plaint that the defendant No. 2 is raising construction at war level, day and night despite the fact that the plaintiffs 40 did not give possession of the land to the defendant No. 2. Despite pleading that defendant No. 2 started digging foundation and raising construction day and night at war level, still the plaintiffs submitted that not only legal but actual physical possession of the plot in dispute is with the plaintiffs. 5. In these circumstances, the plaintiffs sought relief of mere injunction as that defendant No. 1 (State of Rajasthan) and defendant No.2 (Urban Improvement Trust, Jodhpur) be restrained from raising any construction over the plot in dispute and be restrained from doing any act against the rights and interests of the plaintiffs with further prayer of mandatory injunction that the defendants be directed to remove the construction which they have raised. The plaintiffs also submitted an application for grant of temporary injunction u/O. 39 Rr.1 & 2 CPC on the basis of the same facts as pleaded in the suit. 6. The plaintiffs also submitted an application for grant of temporary injunction u/O. 39 Rr.1 & 2 CPC on the basis of the same facts as pleaded in the suit. 6. The defendant No. 2 submitted reply to the injunction application before the trial Court and denied the allegations of the plaintiffs about the land in dispute being of plaintiff's or is Patta Sud land of Achal Singh. It is stated that, no such Patta was issued in the name of Achal Singh but in fact the Patta for the land in dispute has been issued in the name of residents of 5 the Jatabas Mohalla of Mahamandir of Jodhpur and these persons were in possession of the plot. The defendant No. 2 is raising construction of the community hall from the fund of M.L.A. quota. It is submitted that on 23.7.2002, a meeting was called by the Jatabas Mohalla Vikas Samiti in which objection was raised by the defendant No. 3 and after deliberation with to plaintiffs and defendant No. 3 with the Chairman, U.I.T.. it was decided that in case the claim of plaintiffs and defendant No. 3 about the plot in dispute will be found true and genuine, they will be allotted another plot. For this, a written compromise was signed by defendant No. 3 and by various respectable persons including the local M.L.A. The U.I.T Chairman himself,not only intervened but even went to the house of the defendant No.3, and met with mother of defendant No.3 plaintiff and discussed the matter, thereafter, the defendant No. 3 removed his locks from the gate of the plot in dispute and permitted contractor of the defendant No.2 to raise construction. It is also submitted that thereafter, on 8.8.2002 and again on 10.9.2002 20 notices were issued inviting tender by the U.I.T.. Ultimately the tender of one Om Prakash Gehlot was accepted by the U.I.T. Jodhpur, on 10.10.2002. On 23.10.2002, the U.I.T, Jodhpur sought permission from the Addl. District Collector City, Jodhpur for bringing construction material in the City. The contractor started construction on 24.10.2002. It was also submitted that by now (at the time of filing reply to the injunction application by the U.I.T., Jodhpur in the trial Court), basement has already been completely constructed and at present the pillars over the ground- floor have also been raised and now roof is to be completed. The contractor started construction on 24.10.2002. It was also submitted that by now (at the time of filing reply to the injunction application by the U.I.T., Jodhpur in the trial Court), basement has already been completely constructed and at present the pillars over the ground- floor have also been raised and now roof is to be completed. Even the contractor's running bill for Rs.6,06,228.39 has already been sanctioned on 18.12.2002 and payment has been made. 7. The defendant No. 2 further submitted that foundation stone laying ceremony was held on 24.7.2002 which was presided by the Chairman U.I.T., Jodhpur. In the function not only public but M.L.A. from the Jodhpur City and )ne Municipal Corporation Member were also present. This function was also Mended by the defendant No. 3 himself. It is also submitted that all the plaintiff and the defendant No. 3 had full knowledge of on going construction over the plot in dispute from the very beginning. The defendant No. 2 further submitted that the plaintiff deliberately, with ulterior motive, filed the suit without there being any right, title or interest over the plot in dispute and also suppressed all important material facts, mentioned above and with false averments in the plaint. The plaintiff's suit for mere injunction is not maintainable as the plaintiffs are not in possession of the plot in dispute and have not sought relief of declaration and for possession. The plaintiffs and defendant No. 3 have no right to raise any objection about the raising of the as construction by the respondents over the plot in dispute after giving in writing by defendant No. 3 which is on behalf of all the plaintiffs also. 8. The plaintiffs submitted photo-state copy of the alleged Patta along with the plaint whereas the defendant No. 2 submitted 14 documents along with reply to the injunction application which includes 9 photographs of so the public function which was presided over by the Chairman, U.I.T., attended by local M.L.A. and showing presence of defendant No. 3 himself with his brother in the photos and public. photographs, showing the foundation stone and the photographs of the construction. Defendant No. 2 also placed on record the photo copies of the U.I.T., tender acceptance letter, permission granted for bringing the vehicles in the City for bringing construction material, order issued by the Addl. photographs, showing the foundation stone and the photographs of the construction. Defendant No. 2 also placed on record the photo copies of the U.I.T., tender acceptance letter, permission granted for bringing the vehicles in the City for bringing construction material, order issued by the Addl. Collector (Development), Jodhpur dated 27.7.2002 for sanctioning of the amount, copy of the running bill of the contractor, the copy of the news item published in news paper 'Dainik Bhaskar' about ceremony of foundation lying dated 25.7.2002, copy of the compromise dated 24.7.2002 and copy of the Patta in favour of the residents of the area and copy of the Patta of a neighbour of the plot. The defendant No. 2-U.I.T. submitted some more documents afterwards before the trial Court whereas plaintiffs submitted photo-copy of one complaint lodged by plaintiff No. 3 against Chairman. U.I.T. and the officers of the U.I.T. including against the contractor Om Prakash Gehlot which is said to have been submitted to the 15 D.I.G., Anti-Corruption. Jodhpur dated 31.1.2003. 9. The trial Court appointed Commissioner for site inspection by order dated 16.1.2003 and granted ad-interim injunction order to maintain status quo as no reply was filed by any of the parties before the trial Court to the application u/O. 39 Rr 1 & 2 CPC on 16.1.2003. The Commissioner submitted site inspection report on 21.1.2003. The trial Court fixed the date for filing reply of defendants No. 1 & 3 as it appears that defendant No.2, before that, submitted reply to the injunction application. The trial Court in its order dated 24.1.2003 ordered that in case reply will not be filed by rest of defendant-non-applicants by next date (29.1.2003), the right to file reply to the injunction application will be deemed to have been closed. On 29.1.2003, the defendant No. 3 submitted an application under section 148, CPC and sought time to file reply and for that purpose, defendant No. 3 sought time of one month. On 29.1.2003, the defendant No. 3 submitted an application under section 148, CPC and sought time to file reply and for that purpose, defendant No. 3 sought time of one month. The trial Court, after hearing on application under section 148 CPC of defendant No.3, observed in its order dated 30.1.2003 that earlier long date was given which was seriously opposed by the defendant No. 2 and, therefore, date was given with specific order that defendants No. 1 & 3 may file reply to the injunction application by the next date and further observed that the defendant No. 3 himself is Advocate, who has full knowledge of all the proceedings and he wants to delay the proceedings, therefore, there is no reason for giving any opportunity to defendant No. 3 (who is son of plaintiff No. 1 and brother of plaintiffs No. 2 & 3 who were enjoying the benefit of the injunction order). The defendant No. 3 despite order dated 30.1.2003, submitted reply to the application u/O. 39 Rr. 1 & 2 CPC on 1.2.2003 which was objected by the defendants No. 1 & 2 and the Court held that reply cannot be taken on record. Defendant No. 3 even submitted an application for appointment of Commissioner for getting the valuation of the construction raised by the U.I.T, Jodhpur over the plot in dispute which was dismissed by the trial Court by order dated 3.2.2003. 10. The trial Court after hearing, dismissed the plaintiffs' injunction application by order dated 19.2.2003. The trial Court held that despite serious dispute about the title of the land in dispute, the plaintiffs produced only photo-state copy of the subsequently issued Patta and did not produce the copy of the Patta issued originally nor produced any supportive evidence whereas defendant No. 2 submitted photostat copy of the original Patta so which is in the name of residents of the area. The trial Court found that there are some discrepancies in the neighbourhood given in the Pattas but found on the basis of Patta of neighbour Mangi Lal, prima facie, the plot in dispute appears to be covered by the Patta issued in favour of the residents of the area. The trial Court found that there are some discrepancies in the neighbourhood given in the Pattas but found on the basis of Patta of neighbour Mangi Lal, prima facie, the plot in dispute appears to be covered by the Patta issued in favour of the residents of the area. The trial Court further found that the plaintiffs had knowledge of the events of the foundation laying ceremony and of raising of construction by the defendants of basement and ground-floor and construction over ground-floor and pillars of first floor but the plaintiffs have not mentioned these facts in the plaint. Not only defendant No. 3 but his brother was also present in the said foundation laying function and that was not even denied by the plaintiffs. It was also observed that the plaintiffs and defendant No. 3 are members of one family and are living in one house. The trial Court also held that the foundation laying ceremony was completed after taking consent to of not only defendant No. 3 but after taking consent of the plaintiff No.1, mother of defendant No. 3 and, thereafter, the defendant No. 2 started construction which is proved from the documentary evidence. The trial Court found that there is no prima facie case in favour of the plaintiffs nor there will be any irreparable injury to the plaintiffs and the balance of convenience does not lie in favour of the plaintiffs. 11. The appellate Court in its order rejecting the appeal of the appellant-petitioner considered arguments advanced by the parties and the judgments in detail, which were cited. It is relevant to mention here that even before the appellate Court, defendant No. 3 submitted that before 23.7.2002, there was one room on the plot and the plot was surrounded by the stone-slabs which were demolished by the U.I.T., Jodhpur, because of the reason that Chief Minister was to inaugurate the function. Defendants No. 3 during arguments before first appellate Court, showed certain photographs but he did not produce them in Court. The appellate Court also held that the plaintiffs and defendant No. 3 are living together in same house. Defendants No. 3 during arguments before first appellate Court, showed certain photographs but he did not produce them in Court. The appellate Court also held that the plaintiffs and defendant No. 3 are living together in same house. The appellate Court observed that if said room and stone-slabs were demolished by the U.I.T. illegally or unauthorised on 23.7.2002, there was no reason for the plaintiffs and defendant No. 3 but joined as defendant in the suit and in injunction application), to remain silent for such a long period of about six months as suit was filed in the month of January, 2003. The appellate Court held that in the facts of this case, the plea taken by the defendant No. 2-U.I.T. appears to be true. It was further observed that looking to the photographs and Commissioner's report, it is clear that such huge construction cannot be raised in one night. The appellate Court refused to interfere with the order passed by the trial Court dismissed the appeal of the plaintiffs by impugned order dated 10.3.2003. 12. Learned counsel for the petitioners vehemently submitted that the appellate Court committed serious illegality in dismissing the appeal of the appellate and the order of the appellate Court deserves to be set aside only on the ground that the appellate Court did not consider any of the arguments of the appellant-plaintiffs. Learned counsel for the petitioners pointed out para No. 8 of the order of the appellate Court where the first appellate Court recorded the arguments of the learned counsel for the plaintiff-petitioners. Learned counsel for the petitioners argued that matter on the merits at length also by referring the pleadings and the documents submitted by both the parties to justify the stand of the plaintiffs for grant of temporary injunction, therefore, record of the trial Court as well as of the appellate Court was called by this Court. According to the learned counsel for the petitioners, in view of the first plea of the petitioners that first appellate Court has not applied its mind to the submissions of the petitioners, order of the appellate Court dated 10.3.2003 may be set aside and matter be remanded back to the first appellate Court for decision of the appeal afresh. According to the learned counsel for the petitioners, in view of the first plea of the petitioners that first appellate Court has not applied its mind to the submissions of the petitioners, order of the appellate Court dated 10.3.2003 may be set aside and matter be remanded back to the first appellate Court for decision of the appeal afresh. It is also submitted that if the appellate Court would have applied its mind on the arguments of the petitioner-appellants, it were possible that appellate Court might have granted the relief of the plaintiff-appellants-petitioners. 13. On merits. the learned counsel for the petitioners submitted that plaintiffs are having title to the property and if there is dispute with respect to the title of the property then during pendency of litigation, the defendants have no right to raise construction over the property in dispute and alter the position, that too by using the public fund. It is also submitted that the to genuineness of the Patta of the plaintiffs cannot be douta tea at this stage. This plaintiffs' possession is proved from the Commissioner's report and even it is proved that defendants themselves are admitting that they entered into the premises after getting permission from defendant No. 3 who unlocked the gates of the property in dispute and the defendants failed to prove that defendant No. 3 was representative of the plaintiffs or was authorised by the plaintiffs to permit defendants to raise construction. It is also submitted that neither the act and action of defendant No. 3 is binding upon the plaintiffs nor defendant No. 3 can alone pass-on the title of the property in favour of respondents No. 1 & 2. It is also submitted that there is some mistake in the copy of the running bill submitted by the defendant No. 2 before the trial Court which makes the conduct of defendant No. 2 suspicious. The defendants failed to prove that plaintiffs took part in the alleged meetings. 14. It is also submitted that there is some mistake in the copy of the running bill submitted by the defendant No. 2 before the trial Court which makes the conduct of defendant No. 2 suspicious. The defendants failed to prove that plaintiffs took part in the alleged meetings. 14. Learned counsel for non-petitioner No. 2 seriously opposed the revision petition though, on the plea of scope of power of this Court in revisional jurisdiction to interfere in the orders under challenge but learned counsel for the petitioner, with more vehemence, submitted that High Court should also look into all aspects of the matter on merits also as more facts are on record for dismissal of injunction application of the petitioners than the facts which were found sufficient by the both the Courts for dismissing the injunction application. Learned counsel for non-petitioner No. 2 submitted that jurisdiction is limited under section 115 CPC to interfere in the order passed by the appellate Court and here in this case, there are concurrent findings of fact as well as both the Courts concurrently found that the conduct of the petitioners-plaintiffs dis entitled them from any equitable relief. It is also submitted that the revisional power of this Court is discretionary one and it is not necessary for this Court to interfere in the orders of the Court below even if there appears to be error of fact or error of law or even error of jurisdiction provided that substantial justice has been done by the order under challenge. Learned counsel relies upon the judgments of Hon'ble the Supreme Court delivered in the case of Baldev Das v. Filmistan, AIR 1970 SC 406 , Delhi Municipality v. Suresh Chandra, AIR 1976 SC 2621 and the judgment of this Court delivered in the case of Vimla Devi v. Jang Bahadur, AIR 1977 Raj. 196 . 15. Learned counsel for non-petitioner No. 2 further submitted that even the first appellate Court had limited jurisdiction to interfere with the order passed by the trial Court by which the trial Court dismissed the' application for injunction of the petitioners, therefore, if appellate Court finds any reason for not interfering in the order of the trial Court, the appellate Court can refuse to interfere with the order passed in proceedings for grant of injunction. The first appellate Court recorded prima facie findings on the issues of fact and specific finding on conduct of the plaintiffs and the defendant No. 3, therefore, this Court need not to interfere in the order of the Courts below even if it is found that the first appellate Court should have given reasons in more details only. Learned counsel for the non- petitioner No. 2 relies upon the judgment of the Hon'ble Supreme Court delivered in the case of Wander Limited v. Antox India. 1990 Suppi SCC 727 . judgment of this Court delivered in the case of Vimla Devi v. Jang Banadur supra. which was also relied upon by the learned counsel for the petitioners) and the judgment of Delhi High Court delivered in the case of Fritco Lay India v. Uncle Chips (P) Limited., AIR 2000 Delhi 366 . According to the learned counsel, therefore, even if appellate Court has refused to interfere with the order passed by the trial Court on the basis of the conduct of the petitioners and of the non-petitioner No. 3, the first appellate Court exercised its discretion within it's jurisdiction on the basis of sound principle of not to interfere in the matter of interlocutory order passed by the trial Court and this Court need not to set aside, reverse or modify the order of the appellate Court merely on technical grounds raised by the learned counsel for the petitioners. Apart from this legal plea, learned counsel for the non-petitioner pointed out that there is a specific finding of appellate Court that after going through the facts of the case. it is clear that there is force in the submission advanced on behalf of the non-petitioner No. 2 that the plaintiffs - petitioners and defendant No. 3 (non-petitioner No.3) voluntarily agreed for construction 20 by defendant No. 2 and in case the defendant No. 2 & plaintiff will prove their Patta, they will accept other land and all these facts were in the knowledge of the petitioners. Therefore, this alone was sufficient for dismissal of the appeal of the petitioners and the first appellate Court was not under obligation to examine even other points but still it is clear from the order under challenge that the appellate Court took note of each and every argument of the petitioners and thereafter, recorded the findings. 16. Therefore, this alone was sufficient for dismissal of the appeal of the petitioners and the first appellate Court was not under obligation to examine even other points but still it is clear from the order under challenge that the appellate Court took note of each and every argument of the petitioners and thereafter, recorded the findings. 16. It is also submitted that existence of all the three ingredients, prima facie case, balance of convenience and irreparable injury is essential for grant of injunction as held by the Supreme Court in the case of Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276 and non-existence of any one of them is sufficient to refuse injunction. For this the learned counsel relied upon the judgment of this Court delivered in the case of Shayak Mohd. v. Iqbad Ahmed, AIR 1973 Raj. 115 and Bheru v. Chhoga, 1992(2) WLN 408. Not only this but still injunction can be refused even if all above three ingredients are proved, on the ground of delay ( National Airport Authority v. Vijay Dutt, AIR 1990 MP 326 ), acquiescence ( Indian Express News Paper v. Jag Mohan, AIR 1985 Bombay 229 ), when injunction is sought against public purpose [ Mahadeo Shivram Shelke v. Pune Municipal Corporation, (1995) 3 SCC 33 ]. and if alternative remedy otherwise than grant of injunction is available [ Delhi Municipality v. Suresh Chandra. AIR 1976 SC 2621 ]. 17. It was also submitted that the petitioners were not in possession of the property in dispute and so called evidence in proof of possession relied upon by the petitioners in the form of Commissioner's report, cannot be considered even proving possession of the plaintiffs- petitioners as the meaning of possession has already been now well defined by Hon'ble the Supreme Court in the judgments Guru Charan Singh v. Kamala Singh, AIR 1977 SC 5 , Ramesh Bijol v. Pashupati Rao, AIR 1979 SC 1769 , Baleshwar Tiwari v. Shivjatan Tiwari, AIR 1997 SC 2089 . It is also so submitted that person not in possession is not entitled for injunction and even mere suit for injunction by a person not in possession. is not maintainable. For this. learned counsel for the non-petitioners relied upon several judgments of this Court reported in AIR 1959 Raj. 146 , 1966 RLW 637, 1993(3) WLC 438. 2001(5) WLC 588. It is also so submitted that person not in possession is not entitled for injunction and even mere suit for injunction by a person not in possession. is not maintainable. For this. learned counsel for the non-petitioners relied upon several judgments of this Court reported in AIR 1959 Raj. 146 , 1966 RLW 637, 1993(3) WLC 438. 2001(5) WLC 588. 2000(2) WLC 279 and the judgment of the Supreme Court AIR 1987 SC 1492 . 18. It is also submitted that while granting injunction, public interest should be considered along with other requirements. For this, learned counsel for non- petitioners relied upon judgments of this Court delivered in the case of Associated Cement Co. Limited v. State, AIR 1981 Raj. 1339 (D.B.) , State of Assam v. Ms. M.S. Associates, AIR 1994 Gauhati 105 and State v. Janki Saboo. AIR 2001 Orissa 112 . In addition to all above, learned counsel for the non-petitioners relied upon the judgments of this Court, which according to the learned counsel for the non-petitioner, was given in similar circumstances and this Court refused to interfere in the discretion exercised by the trial Court as well as by the first appellate Court in the case S.B. Civil Revision Petition No. 857/2002 Surendra Kumar v. Nagar Nigam Jodhpur & Anr., decided on 19.9.2002. 19. Learned counsel for the non-petitioners, on merit, submitted that this Court may itself look into the entire facts of the case which will expose the petitioners fully and no purpose can be served by sending matter back to the first appellate Court. The revisional Court has got supervisory power and that can be effectively exercised by giving relief to the parties which advances the interest of justice and this jurisdiction cannot be made available only for delaying the matters on the basis of certain technicalities of law and even merely on the ground of some mistake committed by the Courts below in 25 procedure or even in law if ultimately decision of the lower Court/Courts is/are found to be just, proper and advances the cause of justice. The remand orders are not available to direct lower Courts to re-write the reasons for the same decision. The remand orders are not available to direct lower Courts to re-write the reasons for the same decision. Learned counsel for the non-petitioners invited attention of this Court on factual aspect of the matter from the pleadings of 30 the plaintiffs and the conduct of the plaintiffs and defendant No. 3 which I will be considering at the relevant place. 20. In rejoinder, the learned counsel for the petitioners submitted that the conduct of non-petitioner No. 3 cannot be a ground to conduct the petitioners. It is also submitted that assuming for the sake of argument anything has been done by non-petitioner No.3, then that is not binding upon the petitioners, nor it amounts to transfer of property in favour of the U.I.T. Jodhpur, not it amounts to ouster of the petitioners from their ownership land because neither the petitioners gave possession of the property to the non-petitioners No. 1 & 2 nor the non- petitioner No. 3 was authorised to give possession to the on behalf of the petitioners. It is also submitted that the first appellate Court recorded certain facts about the conduct of the non-petitioner No. 3 and swayed by that conduct for which the petitioners had no opportunity to meet with the stand taken by the non- petitioner No. 3. Learned counsel for the petitioners advanced a novel argument, empathetically, that when important question of fact and law are raised in the matter of proceedings under grant of temporary injunction u/O. 39 RI., 1 & 2 CPC, the Courts should only record those contentions and should only say that the Court will not comment anything on those contested matters. This interesting argument appears to have been advanced by the learned counsel for the petitioners by stretching the decisions of this Court delivered in the case of Peer Gulam Nasir v. Peer Gulam Jelanee, 1988(2) RLR 871 and another judgment delivered in the case of Deepak Kaushal v. Mohan Lal Sukharia University & Anr., 1994(1) RLR 643 wherein this Court held that Courts should not decide finally the controversy raised in pleadings by parties at the stage of deciding application for temporary injunction and serious questions raised in the case can be finally decided only after parties may have led the evidence. It is also submitted that the petitioners made out trivial issues then the only course open for the Courts below to pass the order of injunction of maintaining status quo during pendency of the suit. It is also submitted by the learned counsel for the petitioners that in fact that argument of the learned counsel for the non-petitioners on the basis of public interest supports the case of the petitioners as the petitioners' case is that the public fund is being misused by the public authorities and is going to be wasted by the acts of the non-petitioners No. 1 & 2. Therefore, this Court may set aside the orders of the Courts below and may pass order of injunction against the non-petitioners No. 1 & 2 and if not then, at least the matter is required to be remanded back to the first appellate Court. 21. I have considered the rival submissions, perused the judgments cited by the learned counsel for the parties and examined the entire record of the case. Many a times Courts are required to hear the sound of silence from the pleadings, documents and the evidence and even from the arguments advanced by the parties to find out the real Raga in the cries of the parties. The sound of silence may be in the form of suppression of important material facts, the camouflage created by the inventiveness of the parties in pleadings. putting the things in distorted way, and in some cases putting the parties at wrong places with intention to the mislead the Court by creating 25 thunder so that Court may not hear the real Raga. There may be numerous other way of creating noise to abuse the process of Court which may not only cause serious damage to the other parties, dragged to the Court but causes more harm to the judicial institution itself. This is one of such case where the Courts below, though done right, by dismissing the injunction 4.plication but not made known to the parties that the Courts have heard the second of silence and was not influenced by the ear tearing voice created by the plaintiffs. This is one of such case where the Courts below, though done right, by dismissing the injunction 4.plication but not made known to the parties that the Courts have heard the second of silence and was not influenced by the ear tearing voice created by the plaintiffs. The plaintiffs-petitioners are courageous enough to challenge the, not only order of the trial Court by filing appeal in the case where they should have realised their own mistake of seeking injunction against the defendants but did not feel satisfied even after dismissal of their appeal against the order of the trial Court, the plaintiffs, therefore, preferred this revision petition to demonstrate, that they may do so because of the simple reason that they can afford to do so at the most they are to lose only of which, they were not entitled. How it happened is clear from the facts of this case. 22. How purposefully defendant No. 3 was impleaded by the petitioners as defendant is one of the aspects about the conduct of the petitioners which itself was sufficient for dismissal of the injunction application by the trial Court and the appeal by the appellate Court, and this itself is sufficient reason to refuse any relief to the petitioners which I will deal with later on. The merit of the case in hand discloses that the petitioners are not entitled for any equitable relief from the Court. The petitioners in their entire plaint did not give any specific date for any act of the non-petitioners No. 1 & 2 except, vaguely in para No. 5 of the plaint, wherein it is stated that in month of July, so 2002 officers and the employees of the U.I.T. Jodhpur came on the spot, started demolishing stone-slabs and went from the spot after giving warning to the plaintiffs that they should show their title to the property in dispute Or otherwise defendants No. 1 & 2 will start raising construction of community hall. The material facts about what happened after July, 2002 till filing of the suit by the plaintiffs-petitioners on 8.1.2003, have not been mentioned. The most important and material fact like, after July, 2002, on what date or even in which month. defendant No. 2 started construction on the disputed plot is not mentioned by the plaintiffs in the plaint or in injunction application. The most important and material fact like, after July, 2002, on what date or even in which month. defendant No. 2 started construction on the disputed plot is not mentioned by the plaintiffs in the plaint or in injunction application. What was the stage of the construction at the time of the filing of the suit has also not been mentioned. It appears from the plaint averments itself that even according to the plaintiffs themselves before filing the suit the construction was going on, which is clear from the facts pleaded by the plaintiffs, that the defendants No. 1 & 2 were raising construction on the plot in dispute, day and night at war level. The start of construction by defendant No. 2 was the important material date for the purpose of deciding the injunction application as the delay itself can be a ground for refusing the discretionary relief of injunction. The nature of construction and extent of construction are also very material facts which may estop the plaintiffs from raising objection about the going on construction in the facts of the case and may be a very relevant and material facts to judge the balance of convenience and irreparable injury likely to be caused to the parties. If the construction at war level that too, day and night was going on, on the plot in dispute, then how the plaintiffs are claiming their possession, has not been explained by the petitioners in the plaint and learned counsel could not explain before this Court. In the present days when, not only photography is there but video films can be produced, why the petitioners did not even choose to produce photographs of the property in dispute to show the exact position of the construction over the disputed property as on the day or immediately before filing of the suit. Therefore, this is not a case where the plaintiffs' conduct only dis entitled them from the relief of injunction but the pleadings of the plaintiffs itself was sufficient for refusal of equitable relief of injunction. Despite this, both the Courts below examined the merit of the submissions of the petitioners and rightly rejected the application of the petitioner for grant of injunction on merits also. 23. Despite this, both the Courts below examined the merit of the submissions of the petitioners and rightly rejected the application of the petitioner for grant of injunction on merits also. 23. Learned counsel for the petitioners vehemently submitted that this Court may set aside the order of the appellate Court as the appellate Court has not recorded any finding on the submissions of the learned counsel for the petitioners and has not specifically rejected the submissions, therefore, the matter may be remanded to the first appellate Court. While arguing so, learned counsel himself has argued that when serious questions are raised in the arguments in the matters relating to the grant of injunction, the Court should simply record the arguments and should say that the Court will not decide these issues by stretching, beyond proportion, the legal proposition that while deciding injunction application, the Court should not decide the controversy 'finally'. The first appellate Court recorded all the arguments of the as learned counsel for the petitioners in para No. 8 of the order of the appellate Court, is an admitted fact by the learned counsel for the petitioner. The appellate Court did not consider the arguments as factually wrong because, firstly, the first appellate Court after narrating arguments of the learned counsel for the petitioner considered the judgments cited by the counsel, quoted the relevant portion from the judgments and thereafter, has specifically held that case set up by the defendants appears to be correct that plaintiffs and defendant No. 3, voluntarily permitted the construction over the plot and defendant No. 3 himself was present in the foundation laying function which means construction was started in the month of July 2002 in the knowledge of the plaintiffs and held mat defendant has already raised construction of underground and construction of first floor was in progress which also shows acquiescence of the plaintiffs. These are the reasons 5 sufficient for dismissal of the appeal by the appellate Court. Therefore, it cannot be said that arguments of petitioners were not considered by the first appellate Court. Secondly, it is clear from the order of the first appellate Court that the Court found that the petitioners-plaintiffs' conduct disentitle them from seeking any equitable relief from Court. Therefore, it cannot be said that arguments of petitioners were not considered by the first appellate Court. Secondly, it is clear from the order of the first appellate Court that the Court found that the petitioners-plaintiffs' conduct disentitle them from seeking any equitable relief from Court. Thirdly, admittedly petitioners were not found in possession of the property in dispute, not only on the date of filing of the suit but from much before filing of the suit and the petitioners, knowingly did not file the suit for possession of the land in dispute. Fourthly, the plaintiffs have not come with clean hands. Reasons mentioned above are not the exhaustive list of reasons but only a few from many more. Therefore, when facts are glaring, this Court finds no illegality in the order of the first appellate Court, order of appellate Court cannot be set aside nor it is a case where matter can be remanded to the lower Court. 24. Mere setting up case on the basis of alleged title is not sufficient when not only title of the plaintiffs is denied by the defendant but defendant also has set up his title to the property and the Court found (prima facie) alleged title of the plaintiff doubtful. The claim on the basis of the title for an immovable property of the plaintiffs may be a serious question for trial but it will be wrong to grant relief to the plaintiff after ignoring the title of the defendant altogether. It is settled law that prima facie case is different than prima facie title. Therefore. for relief of injunction even if question of title is involved, in given facts, the Court can still hold that no prima facie case is made out by the plaintiff. At the cost of repetition, it is emphasised that the Court should apply its judicial mind to the facts, even on claim of title of the parties seriously, keeping in mind that title of the both the parties are equally important. At the cost of repetition, it is emphasised that the Court should apply its judicial mind to the facts, even on claim of title of the parties seriously, keeping in mind that title of the both the parties are equally important. Even after prima facie proof of title to the property of the plaintiff and after proving other requirements for grant of relief of injunction, if Court refuses injunction, the Court may cause not only irreparable loss to the plaintiff but will be committing serious illegality and in the same manner, if title to property claimed by the plaintiff but appears to be more doubtful than reliable, and claim of title to the property in dispute claimed by the defendant found more plausible though prima facie only and still Court grants injunction in favour of the plaintiff, the Court will be committing same serious and grave illegality by giving preference and favour to the claim of the title to property set by plaintiff only because it is claim of plaintiff by treating plaintiff and defendant by different and unequal by giving respect to title of one party aga -1st title of other party. When title of both parties are doubtful and it is different to form even prima facie opinion about the title then it is desirable to direct both the parties to maintain status quo till the pendency of the suit but this well settled law. should not be used in slip shod manner by the Courts as 45 a tool to avoid application of judicial mind to find out the truth and prima facie case of the party, which causes only harm to the judicial system. If the title is seriously doubtful and other party is also claiming title to the property which is more trustworthy and the Court found that plaintiff has not come with clean hands, he has suppressed material facts and is seeking relief of injunction to abuse the processes of the Court and the plaintiff has no bale ice of convenience in his favour nor he will suffer irreparable injury in case injunction is not granted to the plaintiff, the Court is not supposed to grant injunction order in such cases also simply because plaintiff has set up his case on the basis of title. The Court can refuse the interim relief to the plaintiff because it will not result into irreparable loss to plaintiff and the s petitioner may get relief ultimately upon proving his case finally. If the title of the plaintiffs is doubtful or it is difficult to set up the title over the property in dispute and if Courts prima facie found the title of the defendant more near to having relation with the property in dispute with surrounding circumstances and actual physical possession and if the plaintiff himself acquiesced to the to acts of the defendant or by his conduct and permitted other party to invest money and permitted other party to raise constriction and act of the other party is not with intention to take undue advantage, after taking care of all surrounding circumstances. the Court may be refuse to pass the order of injunction. 25. Before parting with it will be relevant to consider the commissioner's report on the basis of which the petitioners are claiming their possession over the plot in dispute. The facts mentioned in commissioner's report cannot be considered as any proof of possession of the plaintiffs. Even name board of defendant No. 3 near main gate of the property in dispute (who is not aggrieved against the action of the defendants as he is not seeking injunction against defendants) and name Board of plaintiff No. 1, opening of lock of the gate by one of the plaintiffs-Gajender Singh, are created evidence only. Other created evidence like putting table, 3 iron chairs, 4 plastic chairs with name of defendant No. 1, 1 steel water pot with name of plaintiff No. 1 are required to be discarded. Though this created evidence found on spot cannot be disputed but the Courts below very wisely did not feel influenced by these wander away fairy fact and rightly refused hearing of artificial sound created by created evidence and discarded it and preferred truth of existing rock hard building (of truth) which is prima facie proof of actual long physical possession of the defendants with intention to possess the property against the proof put forward- by the plaintiffs unusual evidence of possession having name of defendant No. 3 over even tables and chairs. 26. 26. In the light of judgments of this Court if learned counsel for the petitioners is under an impression that in all contentious matters the Court should record the contention and should specifically say that Court will not decide these matters is absolutely misconceived and misplaced submission and has been advanced by wrong by interpreting the basic law of injunction and the judgments of this Court. Even if the matter is hotly contested and issue is seriously debatable even then if it is needed, the Court is required to record prima facie finding about the issue. That finding is not binding on the Court itself at the time of final decision on merits but the Court's, finding without examining prima facie substance in the contentious matters may result into serious consequences of passing orders of serious nature affecting the rights of the parties and may be a lame excuse for not applying' judicial 45 mind while passing the order. The judgments relied upon by the learned counsel for the petitioners also only say that while deciding injunction application, the Courts should not finally decide an issue. This does not mean that Courts even cannot record prima facie finding about the contentious matters, rather it is necessary to record the prima facie findings and if it appears from the language of the order that some findings appear to have been recorded finally then they are to be treated as only prima facie findings on the issues for simple reason that the Courts while deciding application for grant of injunction, has jurisdiction to only look into the prima facie case and cannot have jurisdiction to decide the controversy finally which is a settled law. 27. Now we may look at the conduct of the plaintiffs which is under heavy attack by the learned counsel for the non- petitioner No.2. It will be 5 worthwhile to narrate the very important and material facts of this case. It is clear from the facts that conduct of the non-petitioner No.3, who is an Advocate, his absence in the array of plaintiffs is heavily under attack by the non-petitioner No. 2. It will be 5 worthwhile to narrate the very important and material facts of this case. It is clear from the facts that conduct of the non-petitioner No.3, who is an Advocate, his absence in the array of plaintiffs is heavily under attack by the non-petitioner No. 2. Before the trial Court, the non-petitioner No. 3 himself appeared on 16.1.2003 in response to the notice of injunction, got issued by his own mother and brothers and who are living with him in the same house and he sought time for filing reply to the injunction application. Seeking time by the defendant No. 3, gives advantage to the plaintiffs is a fact. It appears from the interim order dated 16.1.2003, prayer of interim relief was opposed by the non-petitioners No. 1 and 2 only. The plaintiffs in plaint asserted that is the plaintiffs and the defendant No. 3 are owners and are in possession of the property in dispute. In the entire plaint and the injunction application, nothing has been said by the plaintiffs. why one of the co-sharers in the property with the plaintiffs and is in alleged joint possession with the plaintiffs and further, who is living in the same house with the plaintiffs was impleaded 20 as defendant and not as plaintiff. Independently, this fact could have been ignored but in the facts of this case, this is very important and material fact because of the reason that defendant No. 3 who himself is Advocate, appeared before the trial Court and even submitted an application through his Advocate and sought long one month's time for filing reply to the 25 in unction application to benefit the plaintiffs as the plaintiffs had interim order of injunction in their favour and long adjournment gives advantage of the order to the defendant No. 3 mother and brother.Not only this, the defendant No. 3 submitted an application for appointment of Commissioner to get on record. the valuation of the 30 construction raised by the non-petitioner No. 2 on the disputed site. the valuation of the 30 construction raised by the non-petitioner No. 2 on the disputed site. In this application, the non-petitioner No. 3 referred the certain facts mentioned in the reply to injunction application filed by non-petitioner No. 2 and the document submitted by the non-petitioner No.2 The appointment of Commissioner was sought to destroy the case of the non-petitioner No.2 by showing that facts about construction given in the reply of the non-petitioner No 2 are wrong. In the trial Court, no argument was advanced on behalf of non-petitioner No.3 despite the fact that non-petitioner No. 3 submitted reply though was not taken on record and submitted application for appointment of Commissioner which too was rejected, still it was more than clear from the proceedings of the trial Court that non-petitioner No. 3 was set up to support the petitioners. This fact became more clear when non-petitioner No. 3 himself submitted an affidavit of plaintiff No. 1 on 1.2 2003 in the trial Court which appears to be more a rejoinder affidavit of the plaintiff No. 1 to rebut a few facts mentioned in the reply of the contesting defendant The as non-petitioner No. 3 also remained present when the site inspection Commissioner inspected the site. in the light of these facts, impleading Devanand Gehlot, one of the co-sharers and eldest male member of the Family, living in the house with the plaintiffs, as defendant in the suit and injunction application filed by the plaintiffs, and absence of reason for his being impleaded as defendant is significant and appears to be purposeful for the petitioners-plaintiffs so that the petitioners may have their stand as suits them at different stages. When this was the conduct of the non-petitioner No. 3 in support of the petitioner then there appear well founded reasons in the submission of the learned counsel for non-petitioner No. 3 Jodhur Shri Dinesh Maheshwari. to examine the entire factual aspect relating to the 5 proceedings taken before the Courts below 28. Learned counsel for the petitioners' tried to explain why petitioners impleaded co-sharer in property as defendant which is more a plea of blank alibi. According to learned counsel. to examine the entire factual aspect relating to the 5 proceedings taken before the Courts below 28. Learned counsel for the petitioners' tried to explain why petitioners impleaded co-sharer in property as defendant which is more a plea of blank alibi. According to learned counsel. Devanand Gehlot was impleaded as defendant because he is also owner of the property as co-sharer with the to petitioners and is in possession with the petitioners: therefore, impleading of Devanand Gehlot as defendant No. 3 cannot be objected as he was either necessary or at least proper party in the suit. This is hardly any explanation. =pleading of Devanand Gehlot as party is not under challenge. Challenge is against =pleading him as defendant, intentionally and purposefully which was exposed by the defendant No. 2 in reply to injunction application and stands proved by the proceedings in the Courts below. The challenge is about the conduct and bona fides of the plaintiffs. There is no allegation of the plaintiffs that he is not supporting the plaintiffs. Facts show that Devanand Gehlot has, by all means supported the plaintiffs in entire Court proceedings and he is an advocate also then why he was impleaded as defendant and he did not join the plaintiffs, is neither made clear in the plaint nor by any satisfactory reason in arguments even before this Court. Therefore, this became very important and material fact for judging the conduct of the plaintiffs from very inception and stands fully exposed by subsequent conduct of the plaintiff when she submitted her rejoinder affidavit, not through her own counsel, but through defendant No. 3, Devanand Gehlot Apart from the reasons given by the Courts below, this cannot be a coincidence that all facts will go against the plaintiffs in such chronological order making the impleading of the Devanand Gehlot as defendant recoiling upon the plaintiffs so heavily. It cannot be believed that the person who could have been best person to protect the interest of the family property will be left out inadvertently from array of the plaintiffs, it cannot be innocent act of the plaintiffs in impleading him as defendant in the suit, it cannot be unintentional act of defendant No. 3 in supporting plaintiffs despite the fact that he alone was isolated by his mother and brothers in the suit in fighting for the cause to save the joint property that two when defendant No. 3 himself obtained the original Patta from the bank and gave it to the plaintiffs to file present suit as disclosed by the learned counsel for the petitioner while explaining reason for filing suit after delay of about six months from the time when the respondent 40 U.I.T. started demolition of plaintiffs stone slabs.It cannot be mere bad luck of the plaintiffs that they will have to face and explain the acts and omissions of the defendant No. 3 more than their own conduct which itself is sufficient to disentitle them from seeking any equitable relief from the Court of law. Prima facie reason of impleading him as defendant No. 3 in the suit, more appears to be because the plaintiffs had knowledge of the acts of the defendant No. 3 and prima facie consent for the acts of the defendant No. 3 while dealing with the property by him and plaintiffs found it difficult for them to keep the defendant No. 3, with them as plaintiff and explain the conduct of not only theirs but also of the defendant No. 3 which they could foresee and which came true when conduct of all came under fire so heavily that too with such voluminous documentary evidence like settlement dated 24.7.2002, photographs showing his presence in the foundation laying ceremony, news with photograph in daily news paper having good circulation in Jodhpur. the extent of construction on the site of huge nature done with material like dressed Jodhpuri stone which is clear from the photographs placed on record by the defendant. U.I.T In these only few circumstances. if the Courts below dismissed the injunction application s of the plaintiffs, after giving facts and reasons. the extent of construction on the site of huge nature done with material like dressed Jodhpuri stone which is clear from the photographs placed on record by the defendant. U.I.T In these only few circumstances. if the Courts below dismissed the injunction application s of the plaintiffs, after giving facts and reasons. in brief only about conduct of the plaintiffs which were sufficient for dismissal of the appeal by the appellate Court and without giving more facts and reasons in support of conclusion to which the Courts reached, the Courts. including appellate Court have not committed any mistake. 29. The appellate Court in its order dated 10.3.2003 recorded the fact that how defendant No. 3 took part in the arguments but did not produce the photographs after showing the photographs to the Court and thereafter, after considering the events which took place in Court and facts mentioned in the order of the appellate Court about the conduct of the non-petitioner No.3, 15 which were not disputed by the petitioners before the first appellate Court at the time when the defendant No. 3 had shown the photographs to the Court. Strangely in the revision petition, the petitioners in para No. 3, stated that interests of the petitioners-plaintiffs and the non-petitioner No. 3 defendant No. 3 are not same despite the fact that defendant No 3 supported the plaintiffs from very beginning and throughout the proceedings before the Courts below and it was never the case of the petitioners that interest of the plaintiffs are opposed to the interest of the Government, not even in arguments by learned counsel for the petitioner before this Court. It is also stated that non-petitioner No. 3 did not state before the first appellate Court which is recorded in the order of the first appellate Court. The facts recorded in the order of the lower Court about what transpired in the lower Court are conclusive and cannot be challenged in revision petition and only remedy for the party is to challenge it by filing revision (sic. review?) petition before the same Court only. The stand of the petitioners in revision petition is additional fact about conduct of the petitioners. It appears that the petitioners can take. not only, contradictory stand but can take absolutely false stand. 30. review?) petition before the same Court only. The stand of the petitioners in revision petition is additional fact about conduct of the petitioners. It appears that the petitioners can take. not only, contradictory stand but can take absolutely false stand. 30. Learned counsel for the petitioners during course of arguments also could not dispute that defendant No. 3 is male member of the plaintiffs' own family living with plaintiffs in the same house in the same locality where the foundation laying ceremony was conducted as public function and defendant No. 3 and his brother, obviously one of the plaintiffs, himself as no other brother of the defendant No. 3 is said to be there, attended the foundation laying ceremony which is clear from the number of photographs placed on record by the non-petitioner No. 2 and not denied by the petitioners by filing rejoinder to the reply. In the affidavit of Mohini Devi, plaintiff No. 1, submitted in Court on 1.2.2003 by the defendant No.3, Smt. Mohini Devi, even went to the extent of saying that no such function of laying down foundation stone was held on 24.7.2002 without saying anything about the photographs raced on record by the non-petitioners and the news item published in widely circulated news paper Dainik Bhaskar. In the brief affidavit dated 1.2.2003 of Mohini Devi, none of the detailed facts given in reply to the injunction application by the non-petitioner No. 2 U.I.T. Jodhpur were specifically referred and denied by even plaintiff No. 1 or any other plaintiff. 31. Learned counsel for the petitioner cited and relied upon various it, judgements in support of his pleas. like what is prima facie case. prima facie se may not be confused with prima facie title. if trivial issues are found, the Court should grant injunction and protect the property, Court should not express final opinion on contentious issues which may be decided after framing issues or after recording evidence of the parties, appellate Court, if not considers evidence available on record and wrongly decides injunction matter, revisional Court can interfere in appellate Court's order and if appellate Court fails to decide facts and issue, involved matter should be sent back to the lower Court for afresh decision and appellate Court itself may not decide the matter. These are settled propositions of laws and are not in dispute. These are settled propositions of laws and are not in dispute. Question is whether they apply to the facts in the present case. In my opinion. none of them helps the petitioners in any manner. It will be worthwhile to say that considerations for grant of injunction by the trial Court are different than interference by appellate Court and further considerations for interference by exercise of revisional jurisdiction by the High Court is entirely different In appellate Court, the aggrieved party is first required to satisfy the appellate Court that this is a case where appellate Court, without exceeding it's appellate jurisdiction, can interfere in the impugned order of the trial Court. In the same manner, the petitioner is required to first make out a case that the High Court will not be exceeding its jurisdiction. if it interferes with the orders passed by the Courts below. Mere error of fact or law committed by the Court below cannot be ground for invoking revisional jurisdiction by High Court. Facts not taken note of or after taking note of the fact and arguments, the Court below has not rejected grounds specifically in the order or where it cannot be found from the impugned order that Court below has, whether considered the fact or legal ground or not and the petitioner cannot satisfy the appellate Court or revisional Court, in interlocutory matters that. if fact or legal ground is considered the result will be in favour of the aggrieved party. the appellate Court and the revisional Court need not to interfere. 32. So far as request of remand of case is concerned, it is desirable to lean in favour of not remanding the matters if material is available with the appellate Court to decide the controversy itself and give finality to the dispute which will be in consonance with the R.24 of 0.41 and there is no reason for not following the same procedure as provided under Order 41, Rule 24 for regular appeals against decrees. in the appeals and even in revision against interlocutory orders or appeals preferred WO. 43 of the Civil Procedure Code. If appellate Court can decide issues finally u; Order 41, Rule 24 , why the prima facie findings cannot be recorded by the appellate Court and revisional Court on the basis of material available on record? in the appeals and even in revision against interlocutory orders or appeals preferred WO. 43 of the Civil Procedure Code. If appellate Court can decide issues finally u; Order 41, Rule 24 , why the prima facie findings cannot be recorded by the appellate Court and revisional Court on the basis of material available on record? If the appellate Court while deciding appeals against judgments and decrees. deciding issues finally may proceed to decide the matter wholly upon some grounds other than that on which the judgment of the Court below proceeds, why same principle cannot be applied in the matters of appeals preferred otherwise than under section 96 & Section 100 CPC? Conclusion is that. it is desirable to follow the procedure as provided in under Order 41, Rule 24 and remand of the matters as far as possible, should be 45 avoided. 33. Learned counsel for the petitioner submitted that the objection about the conduct of the plaintiffs as well as defendant No. 3 is challenged by the contesting defendant in the pleadings and reply to injunction application as is challenged in arguments. For this it is sufficient to say that so honesty and bona fides, for a party seeking equitable relief, are condition precedent. Bona fides and clean hands itself must appear from facts, at all stages and without much efforts of the party seeking equitable relief. Every time washing hands with the help of technicalities of laws cannot make the hands clean or actions bona fide. In the facts of this case. it was for the Petitioners to explain not only their own conduct but also all about the on-petitioner No. 3 and his acts and omissions. It the defendant No. 3 acted against the interest of the petitioners, which cannot be believed at least at 5 this stage, still the petitioners will have to pay for it. in addition to it, there appears no reason to hold. that U.I.T Chairman and local M.L.A. along with large number of persons will enter into conspiracy of creating a forged document by narrating facts involving the plaintiff No. 1 to deprive her from her property that too by taking help of residents of her own Mohalla and any of the residents of her Mohalla will not come forward in her support. If the fact mentioned in the said compromise in relation to the plaintiff No. 1 was wrong then it was for plaintiff No. to rebut and none else could have rebutted it effectively but she did not rebut. Even in the affidavit of plaintiff No. 1 submitted in Court on 1.2.2003 (through defendant No. 3), she did not state that Chairman of the U.I.T. did not visit her house and did not have a talk with her about the plot in dispute. In nutshell. on merits, no case is made out by the plaintiffs for grant of injunction as neither the prima facie case is in favour of the plaintiffs nor balance of convenience lying in favour of the plaintiffs-petitioners, rather it is in favour of the defendant No. 2 and in favour 20 of public interest with non-petitioner No. 2. In case an injunction is issued. it will result into irreparable loss to defendant and the beneficiaries, who are not even party in this suit. 34. In result it is held that, the revision petition as well as the injunction application filed by the petitioners-plaintiffs has been filed mala fidely with 25 ulterior motive to harass the non-petitioners-defendants and with intention to deprive the public from benefits of public fund. The plaintiff-petitioners successfully obtained the stay order in trial Court and by this abused the process of the Court. The trial Court as well as the appellate Court have shown unwarranted generosity by not imposing exemplary cost upon the 30 plaintiffs which prompted the petitioners to prefer this revision petition. Since entire injunction petition as well as revision petition is frivolous. therefore, the revision petition is dismissed with exemplary cost of Rs.3,000/-.Revision Dismissed. *******