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2013 DIGILAW 1594 (RAJ)

Gautam Lal v. Bhadrabahu Kotadia

2013-09-11

P.K.LOHRA

body2013
JUDGMENT 1. - Appellant-plaintiff by the instant appeal has called in question the impugned order dated 23rd of March 2013, passed by the learned District & Sessions Judge, Dungarpur, whereby the application of the appellant under Order 39, Rule 1 and 2 CPC for temporary injunction was rejected. 2. Succinctly stated, facts of the case are that the appellant laid a suit for specific performance of contract before the learned trial Court against the respondent with the averment that there was an agreement to sale between the rival parties for the disputed plot. Alongwith the suit for specific performance of contract, the appellant also preferred an application under Order 39, Rule 1 and 2 CPC seeking interim relief of restraining the respondent from alienating the plot and to maintain status quo regarding plot in dispute. Learned trial Court, after hearing the rival parties, by the impugned order declined the relief of temporary injunction. 3. Learned counsel for the appellant Mr. Bheem Arora has argued that in a suit for specific performance of contract further alienation of the property can create many complications and further any alteration in the property can complicate the situation by the time the suit is finally adjudicated, and therefore, the learned Court below ought to have taken cognizance of these facts so as to preserve and protect the plot in dispute by maintaining status-quo. Learned counsel would urge that looking to the nature of relief sought in the suit, learned Court below ought to have exercised discretion in favour of appellant to avoid multiplicity of litigation. Mr. Arora has strenuously urged that while passing the impugned order the learned Court below has not examined the matter in right perspective, and therefore, the impugned order is liable to be interfered with. 4. Per contra, Mr. Shambhoo Singh, learned counsel for the respondent, while supporting the impugned order has submitted that the learned Court below has examined the matter threadbare and thereafter declined the relief of temporary injunction, which calls for no interference in exercise of appellate jurisdiction. Mr. Shambhoo Singh would urge that powers of the appellate Court in the matter of temporary injunction are to be exercised sparingly because granting or refusing injunction is within the sole discretion of the trial Court. 5. I have heard the learned counsel for the parties and perused the impugned order. 6. Mr. Shambhoo Singh would urge that powers of the appellate Court in the matter of temporary injunction are to be exercised sparingly because granting or refusing injunction is within the sole discretion of the trial Court. 5. I have heard the learned counsel for the parties and perused the impugned order. 6. At the threshold when the matter came up before this Court on 27th of April 2013, a coordinate Bench was pleased to pass following order: "Admit. Issue notice. Issue notice of the stay application, returnable in four weeks. In the meanwhile and till further orders, the respondents are restrained from further alienating the suit property and are directed to maintain status quo regarding the said property." 7. On examining the matter in its entirety, in my considered opinion, the appeal itself can be disposed of in terms of the interim order for doing substantial justice between the rival parties. Admittedly, the suit is for specific performance of contract and in the event of further alienation of the property there is every likelihood of transfer of the property in third party's name and further handing over of possession. This sort of situation may not be congenial for both the rival parties and at the time of final disposal there are fair chances of acrimony between the rival parties and multiplicity of proceedings. In this view of the matter, I am inclined to accept this appeal and accordingly the impugned order is set aside. The respondent is restrained from alienating the suit property and further he is directed to maintain status quo regarding the same during the pendency of suit. 8. Learned counsel for the rival parties submit that the suit is pending since 2012 and its expeditious disposal is desirable. Looking to the pendency of old civil litigations before the trial Court, I am not inclined to issue any direction for time bound disposal of the suit. However, it is expected from the learned trial Court to proceed with the trial of the suit expeditiously and to decide the same as early as possible.Appeal Allowed. *******