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2009 DIGILAW 2159 (RAJ)

Kera Ram v. Mohan Lal

2009-10-14

GOPAL KRISHAN VYAS

body2009
Hon'ble VYAS, J.—This miscellaneous appeal has been brought by defendants No. 3 and 4 challenging the validity of order dated 10.7.2009 passed by Addl. District Judge (Fast Track) No. 2, Jodhpur in Civil Misc. Case No. 72/2007, whereby, the trial Court allowed application filed by respondent-plaintiffs under Order 39 Rules 1 and 2, C.P.C. 2. Respondent-plaintiff Mohanlal filed suit in the trial Court for cancellation of sale-deed and permanent injunction in respect of land in dispute. Respondents plaintiff Mohanlal pleaded in the suit that he has 13 bigha 3 biswa land in village Tanavada (Mogada), Khasra No. 42/2, out of which, he executed power of attorney in favour of defendant No. 2 as per saying of defendant No. 1. For the said purpose, stamp was brought by defendant No. 3. Later on, however, the plaintiff found that defendants No. 1 to 3 have conspired together and instead of 3 bigha land, power of attorney has been forged in favour of defendant No. 2 in respect of 5 bigha land and, on that basis, defendant No. 2 on behalf of the plaintiff-respondent sold 1 bigha 10 biswa land in favour of defendant No. 1 and defendant No. 4 has illegally started raising construction on the said land. Plaintiff claimed that he is in possession over the disputed land. On these pleadings, the plaintiff filed application under Order 39 Rules 1 & 2, CPC along with the suit praying for temporary injunction. 3. The learned trial Court allowed the application for temporary injunction and passed order for maintaining status quo till disposal of the suit vide impugned order dated 10.7.2009. Learned counsel for the appellant while attacking the order impugned submits that at the time of deciding application for temporary injunction three points are required to be seen, (i) whether any prima facie case is made out, (ii) balance of convenience lies in favour of the applicant, and/or (iii) if the order is not passed in favour of the applicant he will suffer irreparable loss. Upon consideration over the aforesaid points the application for temporary injunction is required to be decided. Upon consideration over the aforesaid points the application for temporary injunction is required to be decided. As per learned counsel for the appellant, the learned trial Court was under obligation to give reasons at the time of considering prima facie case in favour of the applicant; but, in this case, no reasons have been assigned though in the pleadings of the application and written-statement material evidence and facts were brought to the notice of the Court. The learned trial Court has committed an error while treating the prima facie case in favour of the plaintiff without assigning any reasons. 4. As per learned counsel for the appellant, reasons are required to be recorded for the purpose of satisfaction of the prima facie case. For the same, learned counsel for the appellant has placed reliance upon the following judgments. (1) AIR 1993 SC 2412 (2) 1996 (2) WLC 474 (3) 2002 (4) WLC 356 (4) 2009 DNJ 191 (5) 2004 (1) SCC 691 . While citing the above judgments, it is submitted that order impugned is cryptic order because while considering the point of prima facie case no reason or finding is given that how prima facie case is made out and, in the absence of any reason or finding with regard to prima facie case, in view of the above cited judgments, the order impugned deserves to be set aside. Learned counsel for the appellant has mainly raised the above issue with regard to non-observance of reasons and conclusion for the satisfaction of the prima facie case. 5. I have considered the arguments advanced by learned counsel for the appellant. 6. First of all, it is required to be observed that in none of the judgments cited by learned counsel for the appellant, matter with regard to grant of temporary injunction under Order 39 Rule 1 & 2, CPC. was under consideration. In the case of Guru Nanak Dev University vs. Parminder Kr. Bansal & Another, AIR 1993 SC 2412 , matter was related with admission of a student and order passed in writ jurisdiction was under challenge. In that case, Hon'ble apex Court adjudicated that interim order should not be passed without adjudication of the basis issues. Therefore, said reported judgment is not relevant to the present controversy and does not support the contention so raised by learned counsel for the appellant. 7. In that case, Hon'ble apex Court adjudicated that interim order should not be passed without adjudication of the basis issues. Therefore, said reported judgment is not relevant to the present controversy and does not support the contention so raised by learned counsel for the appellant. 7. Similarly, in Madan Lal vs. Laxman Das, 1996 (2) WLC (Raj.) 474, it was entirely different controversy because rate of provisional rent was to be determined under Section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 and, for the same, evidence was to be discussed and just reasons were required for the conclusion. Again, in Alwar Ali vs. State of Rajasthan, 2002 (4) WLC (Raj.) 356, this Court emphasized need for recording reasons while considering criminal appeal under Section 374, Cr.P.C. in the context of order passed by the trial Court in criminal case which does not in any manner support the contention of learned counsel for the appellant in the present matter. In Ram Phal vs. State of Haryana & Others, 2009 DNJ (SC) 191, Hon'ble apex Court remitted the matter to the High Court for the reason that cryptic order was passed while disposing of the matter under Article 226/227 of the Constitution of India. Even in Fulena Singh vs. Vijay Kumar Sinha & Others, (2009) 5 SCC 290 , entirely different facts and circumstances prevailed in the context of altogether different law to elicit the observations of the Hon'ble Supreme Court relied upon by learned counsel for the appellant. It is thus obvious that in none of the judgments cited by learned counsel for the appellant the controversy was identical as in the case on hand. 8. In all the above cases, the question with regard to giving reasons for forming opinion as to prima facie case was not under consideration. It is thus obvious that in none of the judgments cited by learned counsel for the appellant the controversy was identical as in the case on hand. 8. In all the above cases, the question with regard to giving reasons for forming opinion as to prima facie case was not under consideration. In my opinion, if a suit is filed before the Civil Court and along with suit an application for temporary injunction is filed under Order 39 Rules 1 & 2, C.P.C., in that event, while deciding such application, of course, aforesaid three points are important and required to be examined; but, for the purpose of forming opinion upon prima facie case, the Court is required to apply its mind to the pleadings of the plaint as well as reply, if filed in the suit or to the application filed under Order 39 Rule 1 & 2, CPC. At the interim stage, formation of opinion and satisfaction is essential condition. Of course, facts are required to be observed in the order but, at that stage, finding is not required to be given because without recording any evidence which can obviously be recorded after framing issues in the suit as per provisions of the Civil Procedure Code, at the time of considering prima facie case on the basis of considering facts as they appear at the first sight, therefore, the contention of learned counsel for the appellant is totally far from the basic principles of law that at the time of deciding application for temporary injunction the trial Court is required to give finding upon the disputed question. 9. The judgments cited by learned counsel for the appellant do not support the plea taken by the appellant in this miscellaneous appeal. Bare perusal of order impugned reveals that while deciding application under Order 39 Rules 1 & 2, CPC the trial Court has specifically taken into consideration the facts narrated in the plaint as well as application and, so also, reply filed by the appellant to the application for temporary injunction and, after observing the facts and reply and considering all aspects of the matter the order has been passed which does not suffer from any illegality. Therefore, there is no force in this appeal. 10. Hence, this appeal is hereby dismissed.