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2019 DIGILAW 191 (JK)

Aftab Ahmad Khan v. Mohammad Tariq Reshi

2019-04-03

RASHID ALI DAR

body2019
Judgment 1. In terms of the instant appeal, appellant prays for modification of the order of trial court dated 29-12-2015 to the extent it directs that no third party interest be created in respects of 1/3rd share of the suit property with further direction that pending disposal of the suit, the respondent No. 1 shall not alienate 2/3rd share from the suit property or create third party interest therein in any manner whatsoever. 2. Facts, for grant of relief as put forth in the memo of appeal are that:— (i) That the appellant and the respondents as partners of the firm called “Curio Novelties and Gifts” which was incorporated in 1992 and located at Sharjah UAE have created lot of properties at different places from the funds of the firm which are joint and undivided and are to be shared by them in equal proportion. (ii) That the appellant and respondent No. 2 had requested the respondent No. 1 many a times to settle the accounts of the firm and also divide the properties of the firm particularly the below mentioned properties in equal proportion:— (a) 38 kanals of land situate at Gupt Ganga Nishat comprised in Survey No. 2150/393, 398, 747, 469,475, 509 and 467 with a four storey residential house and a six storey hotel (under construction). (b) 07 kanals of land situate at Bonagam, Nishat comprised in Survey No. 351-min, 358-min, 360-min, 1062/357, 1063/357, 351-min 358-min, 360 min and 354. (c) 06 kanals of land situated at Barzulla Tehsil Srinagar comprised in Survey No.l 1333/66, 1336/66. (d) 05 kanals 12 marlas of land (lease land) situated at Maisuma Srinagar. The land is located in Survey No. 25 Khewat No. 31, Khatta 41 Estate Maisuma. On the said land exists a three storeyed functional hotel under the name and style of “Hotel Curio.” (e) 02 Kanals and 02 Marlas of land with a stwo storey house situate at Exchange Road Lal Chowk Srinagar comprised in Survey No. 174/151/113. (f) 35 kanals of land at Demari Bagh, Srinagar comprises in Survey Nos. 27, 52, 40, 43, 33, and 30. (f) 35 kanals of land at Demari Bagh, Srinagar comprises in Survey Nos. 27, 52, 40, 43, 33, and 30. (g) 500 kanals of land situated at Zeethyar and Gupkar comprised in Survey No. 395, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 149, 150, 151, 153, 154, 155, 156, 156/1, 157, 158, 159, 160, 147, 148, 152 (Gupkar) and Survey No.s 76, 77, 78, 79, 80, 88, 89, 81, 82, 87, 549/1, 402/3, 404/6, 408/10, 412/16, 452/154 (Zeethyar). (h) 385 kanals of land situated at Dedmari Bagh (under acquisition) comprisied in Survey No. 584/1, 260, 266, 267, 268, 269 to 292, 307 to 314, 316, 318, 1/17, 281/1, 286/1, 293, 294, 295, 296, 301, 302, 303, 300, 304, 305, 306, 312, 315, 316, 317/1 and 297. (iii) That the demand made by the appellant and respondent No. 2 was not, however, liked by respondent No. 1. The appellant and respondent No. 02 thereafter sought intervention of many respectable members of their families in the matter, but all efforts made by them also did not yield any result, prompting the respondent No. 2 to file a suit for declaration and partition in the court of District Judge, Srinagar praying therein for the grant of following relief:— (a) That it be declared that the plaintiff defendant No. 01 and defendant No. 02 holds in ownership 33.33% in the properties mentioned at para 2(i), 2(ii), 2(iii), 2(vi), 2(vii) and 2(ix). (b) That after such declaration is granted, a preliminary decree be passed and commissioner appointed to partition the properties in accordance with ownership holdings of the parties. After the commissioner submits his report with regard to scheme of partition a final decree be passed. (c) That by perpetual injunction defendant No. 1 his agents and servants be restrained from alienating any property mentioned in para 2 of the plaint and or to interfere in the use of the properties by the plaintiff and /or in the properties in which plaintiff and defendant No. 2 reside as on the date this suit is instituted mentioned at para 2(i). (d) That a preliminary decree for account taking of the income and expenditure of the Hotel, namely Hotel. (d) That a preliminary decree for account taking of the income and expenditure of the Hotel, namely Hotel. Curio shown at para 2 (iv) be also passed and after the accounts are taken by the appointment of the commissioner, the plaintiff be granted decree for recovery of the amount from the net profits to the extent of his share. After the account taking a final decree be passed as warranted d in the facts and circumstances of the case. (e) That it be directed that all the Sale deeds in respect of properties mentioned in para 2(i), 2(ii), 2(iii), 2(iv), 2(v), and 2(vii) executed by defendant no. 1 either in his name or in the name of any other person to the exclusion of plaintiff and defendant No. 2 be declared to be for the benefit of plaint6iff and defendant No. 2 in equal shares with defendant No. 1 and the name(s) mentioned by defendant No. 1 be treated not to be of any legal consequences. (f) It be directed that the transfer of the property mentioned at para 2(vi) by defendant No. 1 or by any other person on his behalf to the exclusion of the plaintiff are bad in law and that a decree for an amount of Rs. 1.20 crore be passed being the share of the plaintiff and the said amount be ordered to be paid by defendant No. 1 to the plaintiff along with interest at the rate of 12% per annum. (iv) That along with the suit the respondent No. 2 also filed an application for grant of interim relief and asked the following relief:— (a) it is accordingly prayed that pending disposal of the suit, defendant No. 01 his agents and servants be restrained by ad-interim injunction from alienating the properties mentioned in the plaint and/or cause to be alienated and/or to cause any damage to the property and/or from dealing with the properties in the manner prejudicial to the interests of the plaintiff. (b) A court commissioner be also appointed to report to the court the existing position of all the properties mentioned in the plaint. (v) That the suit along with the application for grant of interim relief was transferred by the learned District Judge, Srinagar, to the court of 1st Additional District Judge, Srinagar for disposal in accordance with law. (b) A court commissioner be also appointed to report to the court the existing position of all the properties mentioned in the plaint. (v) That the suit along with the application for grant of interim relief was transferred by the learned District Judge, Srinagar, to the court of 1st Additional District Judge, Srinagar for disposal in accordance with law. (vi) That the court of 1st Additional District Judge, Srinagar, accordingly entertained the suit and issued summons to the defendants asking them to file their written statement to the suit objections to the application for grant of interim relief. (vii) That the appellant also caused his appearance before the trial court and submitted before it that suit of the respondent No. 2 is based on true facts as such it be decreed and pending final adjudication of the suit, the interim relief as prayed for by the respondent No. 02 be not only granted to him, but the said relief be also extended to the appellant as well. (viii) That the respondent No. 1 after causing his appearance before the trial court instead of filing the written statement to the suit or objections to the application for grant of interim relief, filed an application under Order 7 Rule 11 seeking rejection of the plaint. (ix) That the application filed by the respondent No. 01 for rejection of the plaint was dismissed by the trial court vide order dated 21-12-2015. However, in the application for grant of interim relief the trial court vide order dated 29-12-2015 has directed the respondent No. 01 not to create any third party interest to the extent of 1/3rd share over the suit property till next date of hearing. That the appellant aggrieved of the order dated 29-12-2015, as it does not protect his rights and interests, who is similarly situated with the respondent No. 2 and deserved the same interim relief, as was granted by the trial court in favour of respondent No. 2. (x) That in a suit for partition, every co-sharer is substantially a plaintiff, irrespective of the fact as to whether he/she has been arrayed as a plaintiff or a defendant and is entitled to the same relief as is granted in favour of one or the other party. (x) That in a suit for partition, every co-sharer is substantially a plaintiff, irrespective of the fact as to whether he/she has been arrayed as a plaintiff or a defendant and is entitled to the same relief as is granted in favour of one or the other party. In partition suit all the person, whether arrayed as plaintiff or defendant, have got a common interest in the property of which partition is sought. The court can even on its own or on the application of defendant transpose him as a plaintiff and grant relief to him. Even if, the plaintiff is not found entitled to any relief, the defendant can be granted the relief by the court. in that view of the matter, the trial court while safeguarding the rights and interests of the plaintiff was obliged under law to protect the rights and interests of the appellant as well as and direct the respondent No. 1 not to alienate the share of the appellant as well or create any third party interest therein, in any manner whatsoever. It having however not done, therefore, the impugned order to the extent indicated above deserves to be modified and instead of 1/3rd of the suit property, the respondent No. 1 deserves to be directed not to alienate 2/3rd of the suit property or create third party interest therein, in any manner whatsoever. (xi) That the trial court having come to definite conclusion that prima facie plaintiff applicant has made a good ground for interim relief and if the interim relief sought by him is not granted, he will suffer an irreparable loss, therefore, while safeguarding the rights and interests of the respondent No. 2 it was obligatory on the part of the trial court to safeguard the rights and interests of the appellant as well because the respondent N0. 2 had in his plaint everywhere stated that not only he but the appellant as well is entitled to 1/3rd share from the suit property as being a partner of the firm, from the funds of which the properties which were subject matter of the suit, were created. 2 had in his plaint everywhere stated that not only he but the appellant as well is entitled to 1/3rd share from the suit property as being a partner of the firm, from the funds of which the properties which were subject matter of the suit, were created. The trial court having not done so, therefore, it has committed an error of jurisdiction in passing the impugned order to the extent indicated above, which error deserves to be rectified and the interim relief of the kind passed in favour of respondent No. 2 also deserves to be passed in favour of the appellant. 3. It needs to be noted herein that the appellant has not filed the written statement before the learned trial court and made the court known about the stand taken by the plaintiff/respondent No. 2 in the suit filed before the trial court. Similarly, another defendant i.e. No. 1 too has not filed written statement before the trial court. Application came however to be filed before the said court for rejection of the plaint by the said defendant and the said application came to be dismissed by the learned trial court in terms of order dated 21-12-2015. The Operative part of the judgment is apt to be reproduced herein as:— “…..I have heard and perused the application as well as record. Under Order 7 Rule 11 CPC, it is a settled law that court can reject the plaint on the grounds mentioned in order 7 Rule 11 CPC and this power can be exercised at any time during the trial of the suit. Instead of filing the written statement to the plaint, defendant No. 1 has filed an application which deserves to be dismissed. As in th8e present suit the plaintiff and defendant No. 2 are claiming their rights in the property acquired through the money generated from the firm situate at UAE and huge amount has been syphoned in favour of the defendant No. 1 and instead of accounting for it has filed the present application. In the present suit the plaintiff is not seeking the accounts of the firm but seeking the share in the property acquired by means of funds given by the plaintiff to the defendant no. 01. In the present suit the plaintiff is not seeking the accounts of the firm but seeking the share in the property acquired by means of funds given by the plaintiff to the defendant no. 01. Defendant No. 1 has nowhere mentioned in the application that defendant No. 1 has not obtained any money from the plaintiff for purchasing the property in question. Keeping i8n view facts of the case, application is refused and learned counsel for the defendant is directed to file the written statement in the main suit and objections in the application.” 4. The order dated 21.12.2015 has been challenged in Civil Revision No.01/2016 by defendant No.1-respondent No.1 herein which has been filed on 12.01.2016. The suit, as noted above, in which ad-interim assistance has been granted, has been filed on 31.10.2015. The defendant No.1-respondent No.1 herein appeared before the learned trial court on 02.11.2015 and sought time for filing written statement. He has no filed the written statement but has opted to file an application under Order 7 Rule 11 CPC on 10.11.2015 in which the order referred above has been passed and challenged in civil revision supra. The appearance has been caused on behalf of defendant No.2-appellant herein by the learned counsel on 12.11.2015 and the next date has been fixed on 14.11.2015 on which date the parties have sought time to have settlement in the case and the next date had been fixed as 28.11.2015. There has been no substantial proceedings on 28.11.2015 and the case has been fixed for 08.12.2015 and thereafter for 14.12.2015. 5. On presentation of the appeal, status quo has been ordered to be maintained by the parties in terms of order dated 01.03.2016 which was extended from time to time in terms of interim orders passed on 25.04.2016, 24.05.2016 and 10.06.2016. 6. An application bearing MP No.01/2017 came to be filed before this Court by the appellant herein on 30.08.2017 for transposition as plaintiff while, precisely, making the following submissions:— (I) The appellant has reliably learnt that in order to defeat the claim of the appellant, the respondents have entered into a conspiracy, pursuant to which, the respondent No.2 is contemplating to withdraw the suit filed by him before the trial court. Once the suit filed by respondent No.2 against the respondent No.1 and the appellant is withdrawn by him, the appeal filed by the appellant against the order dated 29.12.2015, shall become automatically infructuous and the claim projected by the appellant in the appeal shall get defeated; (II) The respondent No.2, who has filed the suit before the trial court cannot unilaterally withdraw the suit. Since the properties in dispute pertains to the partnership firm and as partners, the appellant and the respondents 1 and 2 are entitled to 33.33% share each from the said property, therefore, in order to protect the rights and interests of the appellant, he deserves to be transposed as plaintiff to the suit and the prayer of the appellant, accordingly, deserves to be allowed for a complete adjudication upon the questions involved in the suit and also to avoid multiplicity of proceedings, which may ensue after the suit is allowed to be withdrawn; (III) This Court has power under Order 1 Rule 10(2) CPC to transpose the appellant as plaintiff to the suit and even such a power can be exercised by the High Court in appeal, if necessary. Even the power of transposition can be exercised by the court suo-motu, to do complete justice between the parties. In that view of the matter, the present application deserves to be allowed and the appellant deserves to be transposed as plaintiff to the suit, so that the respondent No.1 and 2 do not succeed in their nefarious designs in withdrawing the suit filed by the respondent No.2 against the appellant and respondent No.1, which will render his appeal infructuous and he will be forced to file yet another suit against both of the them to protect his rights and interests in the suit property and will result in multiplicity of litigation and contradictory orders; 7. The respondent No.1 in his objections to the application (supra) has, precisely, stated:— (I) The appellant is not a partner of the firm called “M/s Curio Novelties and Gifts” which was incorporated in the year 1992 and is located at Sharja. The appellant, in face, was working as an employee of the fimr till 2015; (II) The firm “M/S Curio Novelties and Gifts, was incorporated in 1992, and had two partners only:— i. Khalid Jasim Keohwan, a UAE national having 51% share; ii. The appellant, in face, was working as an employee of the fimr till 2015; (II) The firm “M/S Curio Novelties and Gifts, was incorporated in 1992, and had two partners only:— i. Khalid Jasim Keohwan, a UAE national having 51% share; ii. Muhammad Tariq Reshi, (respondent No.1) having 49% share; (III) In 1998, respondent No.2 was inducted as a partner in the said firm and the profit losses had to be shared by the partners in the following manner: a. Khalid Jasim Keohwan……..……..51% b. Muhammad Tariq Reshi (Respondent No.1)………………...25% c. Ashiq Ahmad Reshi (Respondent No.2)…………………24% (IV) “M/S Curio Novelties and Gifts” is stationed at UAE and its business is in UAE and has no show room or office in any place in India or Jammu and Kashmir except Sharjah. (V) The answering respondent denies that the properties mentioned in para 2 of the application were exclusively created out of the income of the partnership concern after respondent No.2 was inducted in the said partnership concern. (VI) The appellant was never partner of the firm “M/S Curio Novelties and Gifts”. He was an employee of the said firm from 1992 to 2015 which fact is proved by the documents of his VISA, where after he ceased to be the employee of the firm; (VII) The appellant in Civil First Misc. Appeal cannot ask the appellate court to transpose him as plaintiff in the suit. Such an application will only lie before the trial court, which had the jurisdiction to decide said and not this Court. This court has to return a finding about correctness or otherwise of the judgment passed by the trial court in the application for interim relief; (VIII) The reason for moving the application is given in para 3 of the application which is based on apprehension only. The suit can only be withdrawn by moving an application before the trial court and the appellant court which is hearing the Civil First Misc. Appeal cannot allow such an application, particularly, when the Court under Order 1 Rule 10(2) is the trial court and not the appellate court which is hearing the Civil First Misc. Appeal under Order 43 CPC. 8. The respondent No.2 in his objections to MP No.01/2017 has stated:— a. The statement regarding alleged withdrawal of the suit by the respondent is based on speculation. Appeal under Order 43 CPC. 8. The respondent No.2 in his objections to MP No.01/2017 has stated:— a. The statement regarding alleged withdrawal of the suit by the respondent is based on speculation. The dispute involved in the case is a family dispute in between brothers and brother-in-law and the parties must try to resolve the dispute among themselves without dragging themselves in the civil litigation, which usually take long time and in the process animosity and vengeance among the parties and families gets compounded, resulting in breaking down of the families. In this backdrop, the respondent, as a family member, is always interested and, as such, is making efforts and endeavours to settle the dispute outside the court as to maintain cordial family relationship and in case his efforts bear no fruit in settling the family dispute, then the answering respondent is entitled to lions share in all those assets/business. No conspiracy can be attributed to the answering respondent. The appellant is enjoying assets and properties situated at Delhi, which too have been created out of the funds generated out of the business in Dubai and all those properties are to be brought as subject matter of dispute. b. The whole edifice of the application is based on speculation and conjectures as there is not an iota of truth in stating that the answering respondent is contemplating to withdraw the suit, which he has never thought of. Question of multiplicity of litigation and/or rendering the appeal infructuous, as contended, would arise only when the answering respondent/plaintiff would move before the subordinate court for withdrawal of the suit as there is no intention of the answering respondent to seek withdrawal of the case. c. The provision of Order 1 Rule 10(2) CPC is not applicable in the matters of transposition. The appellant has to make out a case for transposition as plaintiff, which he has failed to make out, as is writ large from the application itself. 9. MP No.01/2018 filed on behalf of the appellant for placing on record Contract of Sale and Supplement executed on 18.09.2017 by the respondents, has been allowed on 26.09.2018 10. Learned counsel for the appellant contended that in considering application for transposition i.e. MP No.01/2017, the Court may have also to consider the documents placed on record in terms of MP No.01/2018 which has been allowed by the Court subject to just exceptions. Learned counsel for the appellant contended that in considering application for transposition i.e. MP No.01/2017, the Court may have also to consider the documents placed on record in terms of MP No.01/2018 which has been allowed by the Court subject to just exceptions. He has also referred to the averments of the plaint wherein ratio in which the parties have been holding the shares and various business concerns are indicated along with details of the properties which were acquired out of the proceeds and gains of the business. The transposition was necessary in view of U-turn made by the plaintiff-respondent No.1 herein during the pendency of the proceedings. It was the case of the plaintiff-respondent No.1 before the trial court that the appellant herein along with him is entitled to the ratio of the properties indicated therein but in the objections referred above to the he has stated that the appellant was never partner of the firm “M/S Curio Novelties and Gifts” and he was an employee of the said firm from 1992 to 2015, where after he ceased to be the employee of the firm. Para 3 of MP No.01/2017, in particular, is relied on. It 11. It is the further submission of learned counsel for the appellant that the High Court has power under Order 1 Rule 10(2) and Order 23 Rule 1-A of the Code of Civil Procedure to transpose the appellant as plaintiff. 12. Learned counsel has also referred to MP No.01.2018, which, according to him, further substantiates the case for transposition besides necessitating the steps to be taken during the pendency of the suit, for preservation of lis, which may include appointment of receiver. The income of the hotel, of which reference is found in the plaint and MP No.01/2016, is being misappropriated by respondent No.1, is his further argument. Learned counsel also submitted that an application had been filed in the year 2016 for initiating appropriate proceedings against the respondents but the same, on perusal of the record, could not be traced. The objections to the application moved for appointment of receiver have also not been filed. Report of Director Tourism has also been referred with an endeavour to substantiate the case projected before the Court by the appellant herein. The objections to the application moved for appointment of receiver have also not been filed. Report of Director Tourism has also been referred with an endeavour to substantiate the case projected before the Court by the appellant herein. It is being canvassed that though the hotel in question had been in occupation of the Estates Department but what had been its income and expenditure has not been brought on record by the respondent No.1. 13. It is also his submission that the main appeal may have to be considered only after the Court considers the prayer made for transposition in terms of MP No.01/2017 having regard to the facts and circumstances noted therein to protect the rights and interests of the parties pending disposal of the lis. 14. Learned counsel for the respondent No.1, Mr. Jahangir Iqbal Ganai, has stated that the appeal is not maintainable as the order which has been challenged in terms of the appeal had been subject to objections. It was for the appellant herein to make the Court conversant about his stand by filing written statement and accordingly make prayer before the said Court in tune with the pleadings to grant or withhold interim assistance. It wasn’t the case whether the Court lacked jurisdiction and that the appellate jurisdiction had to be invoked to reverse the order passed by the trial court. Reliance is placed on the judgment “K. K. Puri and ors. v. A. K. Puri and ors” reported in J&K Law Reporter 1994 Vol. XXIV 403. According to him, there is nothing on record of the learned trial court from which it could be inferred what was the stand of the appellant herein about the pleas taken by the defendant No.3-appellant herein and which the trial court failed to take into account while granting interim assistance on 29th December, 2015. Only the details of the property recited in the plaint were available before the trial court and on the basis of material which had yet to be commented upon by the other side, learned trial court passed an order which took into consideration same for making the arrangement till the objections were filed by the other side. Judgment of the Hon’ble Apex Court in “Mohd. Mehtab Khan and others v. Khushnuma Ibrahim Khan and others”, (2013) 9 SCC 221 , is relied in this regard. 15. Judgment of the Hon’ble Apex Court in “Mohd. Mehtab Khan and others v. Khushnuma Ibrahim Khan and others”, (2013) 9 SCC 221 , is relied in this regard. 15. According to learned counsel, order 1 Rule 10(2) and Order 23 Rule 1-A of CPC have to be rad dis-jointly and, accordingly, the question of transposition examined. In this regard, reliance is placed on the judgment of High Court of Madras in “R. Dhanasundari @ R. Rajeswari Vs. A. N. Umakanth and Ors.” According to learned counsel, other supplementary applications filed during pendency of the appeal have also become inconsequential by the efflux of time and so the said applications cannot come in the way of disposal of appeal, as is being canvassed by the learned counsel for the appellant. 16. Learned counsel for the respondent No.1 also submitted that even on merits of the matter, it is, prima facie, manifest that no illegality or impropriety can be attributed to the order passed by the learned trial court which needs to be taken care by this Court in exercise of its appellate jurisdiction and the order reversed. It would be only after a party apprises the Court below of its stand, that it would have an opportunity to examine the relative merit of the stand of the parties and frame opinion as to the existence of prima facie case or the balance of convenience and, accordingly, interim direction granted. Since the appellant herein had been himself at fault by omitting to submit the written statement before the said Court on his appearance, illegality or erroneousness cannot be said to be present in the order so passed by the learned trial court. The appeal has been filed before this Court on 29.02.2016 and so the forbearance on the part of appeal herein to approach the learned trial court is manifest, consequently furnishing the base to hold that it was the appellant himself who was at fault in not approaching the learned trial court to consider the case in the light of his defence and to grant interim protection, if any, necessitated or warranted in the circumstances of the case. 17. Mr. 17. Mr. Makhdoomi, learned counsel appearing for respondent No.2, submitted that an appeal can be filed only by an aggrieved person and in the instant case, the appellant herein cannot be said to be an aggrieved person within the meaning of Section 96 of the Code of Civil Procedure. Neither the memorandum of appeal does suggest the appellant herein having a substantial grievance nor otherwise it could be inferred that the appeal could be filed by him when he has been joined only as a proforma defendant in the case and no relief has been claimed against him in the application for interim assistance 18. In rebuttal, learned counsel for the appellant submitted that the plea raised as to the maintainability of the appeal is required to be turned down as the Hon’ble Apex Court as well Full Bench of this Court have held that an order passed under Order 39 of the Code of Civil Procedure, may be an ad-interim one, can be challenged in an appeal before the higher forum. Furthermore, according to him the contentions raised on behalf of the respondents are misplaced in the light of facts and circumstances narrated in the appeal and the applications. 19. I have given my thoughtful consideration to the material before me. It is not in dispute that the suit has been filed by respondent No.2 herein before the trial court on 31.10.2015 and the other side i.e. appellant and respondent No.1 herein directed to be summoned. In the application for grant of interim assistance also, the other side has been put to notice and the order which has been impugned in terms of instant appeal has been passed in presence of the parties. Appearance has been made on behalf of the appellant on 12.11.2015 but the written statement has not been filed till filing of the instant appeal and even till today. The learned trial court has, accordingly, considered the scope for grant of ad-interim assistance in the light of material available before it. The plaintiff i.e. respondent No.2 herein had made a limited prayer in the application for interim assistance for protection of his rights. He had prayed that the defendant No.1-respondent No.1 herein, his agents and servants be restrained from alienating the properties mentioned in the plaint. The plaintiff i.e. respondent No.2 herein had made a limited prayer in the application for interim assistance for protection of his rights. He had prayed that the defendant No.1-respondent No.1 herein, his agents and servants be restrained from alienating the properties mentioned in the plaint. There has been no endeavour on the part of appellant herein even to file a supplemental application wherein the prayer would have been made to grant the relief subject to further orders in the light of material available or till he filed his written response in the matter. 20. Under the amended provisions of Order 8, CPC, the defendants had to file the written statement within thirty days from the date of service of summons and the Court has been given discretion to permit the same to be filed after thirty days or on such other date which may be specified by the Court but it shall not be later than ninety days from the service of summons. Order 39 Rule 3-A of the Code of Civil Procedure provides that the Court shall dispose of the application finally within thirty days from the date on which the injunction was granted. Proper herein it would be to refer to Order 39 Rule 3-A:— “3-A. Court to dispose of the application for injunction within thirty days.—Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted and where it is unable so to do, it shall record its reasons for such inability.” 21. It was for the appellant herein to keep note of the statutory mandate and to submit before the Court that the assistance in addition to that granted by the court is required to be granted and the court, accordingly, satisfied that there exist reasonable grounds for issuance of such an assistance in his favour too. 22. It is no more res integra that an interim assistance flows from the main relief. For grant of assistance pending adjudication of the issues emerging on going through the pleadings, the Court is required to see whether such assistance does match with the structure of the suit filed. The Court has to weigh the convenience of all the parties before it in the light of their claims and counter claims. For grant of assistance pending adjudication of the issues emerging on going through the pleadings, the Court is required to see whether such assistance does match with the structure of the suit filed. The Court has to weigh the convenience of all the parties before it in the light of their claims and counter claims. It has to see in whose favour the balance swings. In no case it can be conceived that a party who has omitted to make Court conversant about his stand, can complain that his/her rights and interests have not been taken care at the time when relative convenience was weighed by the trial court. 23. In the light of material which was available before the learned trial court, it can hardly be observed that the said Court had either transgressed its jurisdiction or miscarriage of justice occasioned by issuance of the injunction in the form it has been granted and to which the appellant herein projects his grievance. It is settled law that legality or propriety of an order passed by trial court is to be seen in the light of material which was before it at the time it considered the same. The nature of prayer made by the appellant before court below for preservation of lis, if not considered by the said Court, could be a relevant factor, for examining the propriety of said order. The appellant, as said above, appeared before the court below on 12.11.2015. He failed to take any step for acquainting the said Court about the rights of the parties had according to him in the property. No interest has been shown in making any prayer has to how the property has to be dealt till determination of suit. Pleading thereafter that learned trial court has misdirected itself in granting ad-interim assistance in the above manner, is uncalled. The contention raised on behalf of defendant No.1 that the appellant in such circumstances can be said to be an aggrieved person within the meaning of Section 96 of CPC cannot be termed to be without force. The appellate court cannot readily overset the arrangement devised by learned trial court on consideration of application for grant of interim relief. 24. The contention raised on behalf of defendant No.1 that the appellant in such circumstances can be said to be an aggrieved person within the meaning of Section 96 of CPC cannot be termed to be without force. The appellate court cannot readily overset the arrangement devised by learned trial court on consideration of application for grant of interim relief. 24. It may be quite apposite to refer herein the observations of their lordships in “Wander Ltd and another v. Antox India P. Ltd, reported in 1990 (Supp) SCC 727 and “Skyline Education Institute (India) P. Ltd. v. S. L. Vaswani”, 2010 (42) PTC 217 (SC): ““The appellant court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or 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 the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion.” 25. Their lordships have been emphatic in laying down that may be appellate court, in its assessment, find had it an occasion to consider the matter at the initial stage, it would have framed a different opinion than that of court below, that would not be sufficient for reversal of the course adopted by court below. This would be because the appellate forum is required to see that whether the view taken by the learned trial court was practicable in such a fact situation. The approach of the court below thus cannot be faulted with unless the party aggrieved is able to show that the order passed by the trial court is perverse in nature. 26. This would be because the appellate forum is required to see that whether the view taken by the learned trial court was practicable in such a fact situation. The approach of the court below thus cannot be faulted with unless the party aggrieved is able to show that the order passed by the trial court is perverse in nature. 26. The incidental issue raised herein in the appeal as to the transposition of the appellant as plaintiff may have to be considered while having these broad features of the case in view. IA filed in this regard is, accordingly, taken up for consideration. 27. Learned counsel for the appellant, as noted above, has submitted that the appellate forum has to order for transposition and in doing so would be within its powers. He has referred to the agreement (transcribed in Arabic/English language at Sharjah executed by and between Khalid Abdelaziz Jasim Abdullah Kashiwani and respondents herein, in terms of which the structure of the business concern is stated to have been changed), in particular to sound the permissibility of the same. 28. Transposition, per se, either at the stage of trial or at the stage of appeal is permissible but the circumstances and facts of a particular lis can may be ignored while examining scope for same. It is already noted herein supra that the appellant herein has not filed his written statement before the trial court and so has not made the court conversant as to what rights and interests he has in the suit property. The memo of appeal or the application moved under Order 7 Rule 11 CPC by defendant No.1 cannot be a substitute of pleadings delineated in Order 8 of CPC. The plaintiff-respondent No.2 herein had joined him as a proforma defendant. 29. To enable the learned trial court and thereafter this court to examine whether the defendant-appellant herein has an interest identical to the claim of the plaintiff-respondent No.2 herein or distinct from both the respondents, his written statement would have been relevant. No claim is sought, in terms of the suit, to be enforced against the defendant-appellant herein. The plaintiff- respondent No.2 herein has not approached the trial court or this court to permit him to withdraw the suit or that transposition need to be made. No claim is sought, in terms of the suit, to be enforced against the defendant-appellant herein. The plaintiff- respondent No.2 herein has not approached the trial court or this court to permit him to withdraw the suit or that transposition need to be made. The trial court could be approached with a motion for making transposition if the petitioner would have brought to the notice of the Court any of such eventualities as are contained in Order 23 of CPC and said court could thereafter examine it on merits. No such contingency has even arisen here. It would be quite premature at this stage to assume on the basis of pleas taken by the respondent No.2 in the suit that any of the rights of the defendant-appellant herein being likely to be jeopardised by plaintiff. I, as such, do not find any ground having been made out in this appeal for transposition of the appellant as plaintiff in the suit filed by respondent No.2 herein before the learned trial court. IA is held liable for dismissal and is, accordingly, dismissed. 30. In the light of above discussion, no illegality, impropriety or erroneousness can be attributed to the order passed by the learned trial court. The arrangement made in terms of the impugned order was quite reasonably practicable and permissible in the fact situation and no perversity can be attributed to it. For the same no ground is made out for interference in terms of the instant appeal. The appeal is held liable for dismissal and is, accordingly, dismissed along with connected IAs. Learned trial court would be free to pass further orders in the application pending before the same Court, after hearing of the parties. The parties shall appear before the trial court on 22nd April, 2019. 31. Trial court record along with copy of this judgment be sent back.