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2003 DIGILAW 307 (RAJ)

Nand Kanwar v. Sajjan Devi

2003-02-25

H.R.PANWAR

body2003
JUDGMENT 1. - This appeal under Order 43 Rule 1 C.P.C. is directed against the order dated 21.8.1990 passed by learned Additional District Judge No. 2, Udaipur (for short 'the trial court') whereby the trial court allowed the application filed by respondents under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure, 1908 (for short 'the code') and restrained the defendant-appellant from letting out the suit property and directed her to maintain status quo of the said property during the pendency of the suit. Aggrieved by the order impugned, defendant-appellant has preferred this appeal. 2. I have heard learned counsel for the parties and perused the order impugned. 3. Undisputably, the suit property is jointly owned and, therefore, respondents No. 1 and 2 filed a suit for partition before the trial court inter alia, alleging therein that the suit property is jointly owned and defendants had threatened to transfer the suit property during the pendency of partition suit. It was alleged that defendants agreed to let out part of the property to some other persons. In the written statement, the defendant appellant admitted that the suit property is jointly owned and there was no partition between the parties. The trial court while deciding three essential ingredients for grant or refusal of temporary injunction viz. prima facie case, balance of convenience and irreparable injury, held that undisputably, the property is jointly owned by the parties and from the written statement filed by the defendant-appellant, it appeared that defendant-appellant intended to let out a part of the suit property so as to put the plaintiff-respondents in disadvantageous position. The trial court also held that balance of convenience lies in favour of the plaintiffs; if the position of suit property is not protected during pendency of the suit, it would result in multiplicity of proceedings and the plaintiffs would be put to disadvantageous position; in case the defendant appellant is not restrained from transferring or letting out the suit property, plaintiffs would be put to irreparable injury but if the defendant-appellant is restrained from transferring or letting out the suit property, she would not suffer any irreparable injury. Considering all the facts and circumstances of the case, the trial court was of the opinion that during the pendency of the suit, status quo of the suit property should be maintained and accordingly it passed the injunction order against the appellant. 4. In Wander Ltd. v. Antox India Pvt. Ltd., 1990 (Supp) SCC 727 , the Hon'ble Supreme Court held as under: "The appellate court will not interfere with the exercise of discretion of the court of first instanance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of. discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion." 5. In the instant case, nothing has been pointed out by the learned counsel for the appellant as to how the discretion exercised by the trial court is arbitrary, capricious or perverse. Having examined the case in the light of the observations made by the Hon'ble Supreme Court in Wander Ltd. (supra), in my considered opinion, the discretion exercised by the learned trial court cannot be said to be arbitrary, capricious or perverse. On the contrary, the trial court has exercised the discretion, after having considered the material placed before it, in right perspective. Thus, I am of the view, that the order of the trial court calls for no interference. 6. Grant of refusal of injunction is a discretionary power and in my considered opinion, the trial court has exercised its discretion in right perspective and also in accordance with law. I do not find any error in the discretion a exercised by the trial court. 7. In View of the aforesaid discussion, I find no merit in this appeal and it is accordingly dismissed. I do not find any error in the discretion a exercised by the trial court. 7. In View of the aforesaid discussion, I find no merit in this appeal and it is accordingly dismissed. However, it is made clear that any observation made either by the trial court or by this Court should not be taken to be relevant at the trial of the suit on merits. No order as to costs.Appeal Dismissed. *******