Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 418 (GAU)

MD. SAMSUDDIN v. MD. SABJALI ALI

2017-04-03

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. J. Ahmed, the learned counsel for the petitioner as well as Mr. M.A. Sheikh, the learned counsel for the respondent. 2. This revision has been filed by invoking Section 115 read with section 151 of the Civil Procedure Code read with Article 227 of the Constitution of India. The challenge in this revision is the first appellate order dated 20.07.2016 passed under Order 43, Rule 1(r) of the Code of Civil Procedure by the learned Civil Judge, Morigaon in Misc. Appeal No. 2/2016, upholding the order dated 21.03.2016 passed by the learned Munsiff No.1, Morigaon in Misc. (J) Case No.63/2015 arising out of T.S. No. 56/2015, thereby rejecting the prayer to grant ad-interim injunction. 3. The case of the parties is that the petitioners are the plaintiffs in T.S. No. 56/2015. They claim that their predecessor-in-interest had purchased the suit land measuring 2 Bigha-2 Katha-10 Lechas by an unregistered Sale Deed in the year 1972, but somehow got their names mutated in the record of rights as per order dated 24.03.1973 passed by the Circle Officer. The land-owner had sold the suit land to the predecessor-in-interest of the respondents vide Registered Sale Deed No. 9485 dated 28.10.1975. Thereafter, the land-owner again sold the suit land to the predecessor-in-interest of the petitioners by Registered Sale Deed No. 10874/75 dated 27.12.1975. Both parties claimed to be in possession of the suit land. As this revision involves the question of injunction, no other facts are deemed relevant at this stage, because if any other issues are gone into, the same could cause prejudice to either of the parties. 4. By filing the injunction application before the learned trial court, the petitioner prayed for an ad-interim injunction restraining the respondents from entering into the suit land. The said learned court arrived at a finding that the respondents were in possession of the suit land since the year 2012 wherein coriander cultivation was done. Therefore, although a prima facie case for trial was found, but the balance of convenience was found in favour of the respondents and against grant of injunction and accordingly, injunction was refused. The said order was assailed in appeal. Therefore, although a prima facie case for trial was found, but the balance of convenience was found in favour of the respondents and against grant of injunction and accordingly, injunction was refused. The said order was assailed in appeal. The learned first appellate court painstakingly re-appreciated the entire materials on record and also arrived at an independent and well reasoned finding that although there existed a prima facie case for trial but the balance of convenience was not found in favour of the petitioner or in favour of grant of injunction and it also arrived at a finding that if injunction was granted, the respondents will suffer greater inconvenience and, as such, the appeal was dismissed. 5. Thus, there is a concurrent finding by both the learned courts below as regards absence of balance of convenience in favour of the petitioners and as regards the possibility of the respondents suffering greater injury/inconvenience if injunction was granted. Both the said orders are well reasoned and supported by reference to the materials available on record. This revisional court is not inclined to re-appreciate the materials on record as if entertaining an appeal. 6. In the case of Wander Limited v. Antox India Ltd., (1990) Supp SCC 727 Wander Ltd. v. Antox India Ltd., the Hon'ble Apex Court has held that an appellate court will not interfere when lower court has not exercised its discretion arbitrarily or perversely. Under the circumstances, a revisional court would be more slow to interfere in this case in hand, where both the learned courts below have concurrently refused to grant ad-interim injunction. 7. On much persuasion from the learned counsel for the petitioners to revisit the facts afresh, this Court found that the copy of plaint was not annexed with the present revision application and on being asked, the learned counsel for the petitioners furnished a copy of the plaint for perusal of this Court. From the statements made therein, it appears that the petitioners have made a categorical statement therein that cause of action arose on 29.12.2011, when the respondents trespassed into the suit land, and in the prayer No.(ii), the respondents have prayed for a decree for ejectment of the respondents herein from the suit land and for delivery of khas possession of the suit land to the petitioners. Therefore, the prayer in the injunction application seeking restraining order against the petitioners from entering into the suit land appears to be not in consonance with the prayer made in the suit, where there is no prayer of such nature. 8. In the present case in hand, this Court has not found any wrong to have been committed by both the learned courts below. Moreover, no wrong is referable to any grave dereliction of duty or any flagrant abuse of power by the subordinate courts. There is no jurisdictional error and both the courts are found to have exercised jurisdiction vested in it in a judicious manner. Therefore, the petitioners cannot be said to have suffered any injustice by the orders impugned herein. 9. Hence, this revision is found to be devoid of any merit and, as such, the same is dismissed. The parties are left to bear their own cost.