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2016 DIGILAW 459 (RAJ)

Akeel Mohd. v. Shabbir Shah

2016-03-30

SANGEET LODHA

body2016
JUDGMENT : Sangeet Lodha, J. This petition is directed against order dated 8.3.16 passed by the District Judge, Merta, in Civil Appeal No. 6/16, affirming the order dated 11.2.16 passed by the Civil Judge, Merta, in Civil Misc. Case No.79/15, dismissing the application preferred by the petitioners seeking temporary injunction, under Order 39, Rule 1 & 2 C.P.C. 2. Learned counsel for the petitioners contended that the courts below have seriously erred in arriving at the finding that the petitioners have no prima facie case in their favour. Learned counsel would submit that the courts below have failed to consider the permission granted by the Municipal Board, Merta, to late Shri Hassam Shah, who executed the Will of the disputed property in favour of the respondents. Learned counsel submitted that the respondents so as to encroach upon the land in 7 feet width, which forms part of the public way, have kept 17 ft. wide Gali in the other side instead of 10 feet. Learned Akeel Mohd & Anr. v. Shabbir Shah & Ors. counsel submitted that the factual position in this regard is apparent from the perusal of the Commissioner's Report as well. Learned counsel would submit that the findings arrived at by the courts below are ex facie capricious and perverse. 3. I have considered the submissions of the learned counsel and perused the material on record. 4. It is settled law that in the matter of the temporary injunction, the jurisdiction of the appellate court is not coextensive with that of the trial court. The appellate court can interfere with an order of the trial court granting or refusing injunction only when it is satisfied that (i) the trial court has acted contrary to law or (ii) has acted arbitrarily, or (iii) that the finding of trial court regarding the three requirements of grant of injunction are perverse or capricious or (iv) that there has been a misreading of the pleadings of evidence. (vide RSEB v. Mool Chand Jangir, 1993 (3) WLC 388.) 5. (vide RSEB v. Mool Chand Jangir, 1993 (3) WLC 388.) 5. In 'Skyline Education Institute(Pvt.) Ltd. v. S.L. Vaswamin & Anr., 2010 AIR SCW 628, the Hon'ble Supreme Court after considering its various earlier decisions dealing with the scope of appellate court's power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction observed : "The ratio of above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter, it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity." 6. In the backdrop of settled position of law as aforesaid, adverting to the facts of the present case, it is to be noticed that the courts below, after due appreciation of the material on record, have arrived at a categorical finding that the respondents have not raised any construction on the land forming the part of the public way and they have raised the construction on the land covered by the patta issued in their favour. The court found that there is no document produced on record showing that width of the disputed way is 22.6 ft. The court observed that even in the site plan sanctioned by the Municipal Board for raising construction, the width of the disputed way is shown to be 16.6 ft. The courts below have concurrently found that even as per the Commissioner's Report, the respondents are raising construction on their pattasud land and they have not encroached upon the land forming part of the way. In the considered opinion of this court, the concurrent findings arrived at by the courts below, after objective consideration of the material on record, cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 7. In the result, the petition fails, it is hereby dismissed in limine.