Page No.# 1/8 vs M/S D.S. Realtors And 2 Ors on 19 February, 2026

                                                                      Page No.# 1/8

GAHC010178832023




                                                               2026:GAU-AS:2530

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : FAO/49/2023

         NARAYAN CHANDRA DEY
         S/O LATE BHUPATI CHANDRA DEY,
         R/O QTR. NO. 96/B, HILL TOP ROAD, P.S.- JALUKBARI, GUWAHATI- 781011,
         DIST.- KAMRUP (M), ASSAM.



         VERSUS

         M/S D.S. REALTORS AND 2 ORS.
         A PARTNERSHIP FIRM REGISTERED UNDER THE INDIAN PARTNERSHIP
         ACT, 1932, BEARING REGISTRATION NO. RFS(F)/416-2013-14/838 DTD.
         05.12.13, HAVING ITS REGISTERED OFFICE AT A.T. ROAD, PANDAV
         NAGAR, GUWAHATI- 12, P.S.- JALUKBARI, DIST.- KAMRUP (M), ASSAM,
         REPRESENTED BY ITS PARTNERS.

         2:DEBASHISH GHOSE
          S/O SACHINDRA NATH GHOSE

         PARTNER OF M/S D.S. REALTORS HAVING REGISTERED OFFICE AND
         PRINCIPAL PLACE OF BUSINESS AT A.T. ROAD
          PANDAV NAGAR
          GUWAHATI- 12
          P.S.- JALUKBARI
          DIST.- KAMRUP (M)
         ASSAM.

         3:SANJIB BHATTA
          S/O HARENDRA BHATTA

         PARTNER OF M/S D.S. REALTORS HAVING REGISTERED OFFICE AND
         PRINCIPAL PLACE OF BUSINESS AT A.T. ROAD
          PANDAV NAGAR
          GUWAHATI- 12
                                                                            Page No.# 2/8

             P.S.- JALUKBARI
             DIST.- KAMRUP (M)
             ASSAM

Advocate for the Petitioner   : MR. S P ROY, JYOTISH DAS,MS P DEY

Advocate for the Respondent : MR. H SARMAH (R-1,2,3), MR. D M NATH (R-2,3),MR G RAHUL
(R-2,3),MR U.SARMAH (R-1,2,3),MR S DUTTA (R-1,2,3)


                                    BEFORE
                    HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

                                         ORDER

19.02.2026

This appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908, is directed against the order dated 12.06.2023 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati, in Misc.(J) Case No.134/2018 arising out of Title Suit No.63/2018, whereby the appellant's application under Order XXXIX Rules 1 and 2 CPC seeking a temporary injunction was rejected.

2. Heard Mr. S. P. Roy, learned counsel for the appellant/plaintiff, assisted by Ms. V. Roy.Also heard Mr. G. Rahul, learned counsel for the respondents/defendants.

3. The appellant instituted Title Suit No.63/2018 seeking declaration of right, title and interest, cancellation of deeds, recovery of possession and permanent injunction in respect of a plot of land measuring 2 Kathas 1½ Lechas situated at village Gotanagar under Mouza Jalukbari, District Kamrup (M).

4. The case of the appellant is that the respondents entered into a development agreement in respect of the suit land, took possession thereof, failed to commence construction within the stipulated period, and thereafter proceeded with the project by resorting to fraudulent means.

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5. The respondents contested the application for temporary injunction, contending that possession of the land was lawfully delivered under the development agreement; statutory permissions were obtained; substantial investment had already been made; and that any restraint would cause serious prejudice, including to third-party interests.

6. The learned Trial Court, upon consideration of the pleadings and materials on record, recorded that the appellant had been able to establish a prima facie case. However, upon assessing the balance of convenience and the element of irreparable injury, the learned Trial Court declined to grant a temporary injunction and rejected the application by the impugned order dated 12.06.2023.

7. Mr. S. P. Roy, learned counsel for the appellant contends that once a prima facie case is found, refusal of injunction is unsustainable. It is further contended that the respondents proceeded with the project without mandatory registration under the Real Estate (Regulation and Development) Act, 2016 [hereinafter referred to as the RERA Act, 2016] and were penalized by the Regulatory Authority/Tribunal, which ought to have weighed decisively in favour of the grant of injunction. It is further contended that the respondents have acted fraudulently by forging documents, that police enquiry reports support the appellant's case, and that refusal of injunction would result in irreversible prejudice by allowing creation of third party rights. Reliance has been placed in Akmal Ali & Ors. Etc. -Vs- State of Assam & Ors , reported in AIR 1984 Gauhati 86 and Bindeshwar Narayan Singh & Ors. -Vs- Managing Committee, ShriSundarmal Hindi High School & Ors , reported in 1981 1 GauLR 231 in support of his contention that the duty of Courts is to prevent irreparable injury and protect suit property during pendency Page No.# 4/8

of litigation. Further, reliance is placed on the decisions of the Apex Court in the case of Dr. A. R. Lakhshmanan& P.K. Balasubramanyan Hamza Haji

-Vs- State of Kerala &Anr. reported in 2006 Supreme (SC) 738 and in the case of S.P. Chengalvaraya Naidu (dead) by LRs. -Vs- Jagannath (dead) by L.Rs. and Ors reported in 1993 Supreme (SC) 1014 to contend that fraud vitiates all judicial acts and therefore, the respondents were not entitled to any equitable protection and a temporary injunction ought to have been granted.

8. Per contra, Mr. G. Rahul, learned counsel for the respondents contends that the appeal seeks substitution of discretion exercised by the Trial Court, which is impermissible in law. It is contended that alleged violations under the RERA regime are matters within the domain of the statutory authorities and do not, by themselves, govern the grant of interim relief in a civil suit. It is further contended that allegations of forgery were not the foundation of the injunction application; that substantial development steps have already been taken; that the learned Trial Court exercised the discretion judiciously; and that no ground for appellate interference is made out.

9. I have given my prudent considerations to the arguments advanced by the learned counsels appearing for the contending parties and have perused the material available on record.

10. An appeal under Order XLIII Rule 1(r) CPC is an appeal against the exercise of judicial discretion. It is well settled that the appellate court does not sit as a court of first instance nor substitute its own discretion merely because another view is possible. Interference is permissible only where the discretion exercised by the court below is shown to be arbitrary, capricious, perverse, or contrary to settled principles of law.

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11. In Wander Ltd. v. Antox India (P) Ltd., reported in 1990 Supp SCC 727, the Apex Court categorically explained the contours of appellate jurisdiction in matters arising from orders granting or refusing temporary injunction. The Court held that an order under Order XXXIX CPC is essentially discretionary in nature, and that the appellate court is not entitled to reassess the material and reach a fresh conclusion as if it were exercising original jurisdiction. The Apex Court further explained that where the Court of first instance has exercised its discretion judicially by applying the correct principles and taking into account relevant considerations, the appellate Court must refrain from interference even if it might have arrived at a different conclusion on the same material. In other words, interference is justified only when the discretion exercised is shown to be arbitrary, capricious or perverse, or where the trial court has ignored settled principles governing the grant of injunction. The rationale underlying this restraint is that discretionary orders are based on a balancing of equities, assessment of relative hardship, and evaluation of probabilities at a preliminary stage. Such assessments, by their very nature, admit of more than one possible view. The appellate court, therefore, does not correct mere errors of judgment but intervenes only where the discretion itself is shown to be vitiated. Following the ratio laid down in Wander Ltd (Supra), the Apex Court in Ramakant Ambalal Choksi -Vs- Harish Ambalal Choksi and Ors. reported in (2024) 11 SCC 351, reiterated that the appellate Court should not assume unlimited jurisdiction. The Apex Court clarified that the emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the final adjudication of the suit.

12. Viewed thus, grant of temporary injunction is an equitable relief. Existence of a prima facie case, though necessary, is not by itself sufficient. The Page No.# 6/8

plaintiff must further establish that the balance of convenience lies in his favour and that refusal of relief would result in irreparable injury incapable of restitution.

13. In the present case, the learned Trial Court has taken into consideration the development agreement between the parties, delivery of possession of the suit land to the respondents, the stage of development, and the likelihood of prejudice to third-party interests. These are relevant and germane considerations while assessing the balance of convenience.

14. The submission of the appellant that the respondents proceeded with the project without mandatory registration under the RERA Act, 2016 and were penalized by the Regulatory Authority/Tribunal has been carefully considered. Proceedings under the RERA Act are regulatory and remedial in nature. Any finding or penalty thereunder operates within the framework of the special statute and does not, by itself, determine civil rights relating to title, possession, or contractual obligations.

15. The availability or invocation of remedies under the RERA Act neither ousts the jurisdiction of the civil court in a suit of the present nature nor does an alleged statutory violation automatically entitle a party to temporary injunction. The requirements of balance of convenience and irreparable injury must independently be satisfied in civil proceedings.

16. At the interlocutory stage, this Court cannot elevate alleged statutory violations or regulatory penalties to a determinative status for grant of injunction, particularly when disputed questions of fact, admitted possession with the respondents, and possible third-party interests are involved. To do so would amount to prejudging issues reserved for trial or adjudication by the Page No.# 7/8

competent statutory forum.

17. Allegations of fraud, forgery and statutory non-compliance involve mixed questions of fact and law requiring evidence. At the stage of temporary injunction, the court is neither required nor permitted to return conclusive findings on such disputed issues.

18. There can be no quarrel with the contention of the learned counsel for the appellant that a judgment, decree or order obtained by playing fraud on the Court is a nullity and can be questioned at any stage of the proceedings. However, in both the decisions relied upon by the appellant in support of the said proposition, the Apex Court was dealing with situations where fraud either stood admitted or had been conclusively established on the basis of material already on record. It is also apposite to note that fraud, being a serious allegation, is required to be specifically pleaded with material particulars in terms of Order VI Rule 4 of the Code of Civil Procedure, 1908. A mere reference to documents annexed with the plaint, in the absence of clear and specific pleadings, does not satisfy the statutory mandate.

19. It is significant to note that the allegations of fraud sought to be demonstrated before this Court by reference to various documents enclosed with the plaint do not find specific or detailed pleadings in the application filed seeking temporary injunction. Be that as it may, while considering an appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908, the Court is required to examine whether the applicant has made out a strong prima facie case and whether the balance of convenience and irreparable injury justify interference. Allegations of fraud, when seriously disputed and requiring evidence, cannot be treated as conclusively established at the interlocutory stage so as to override these settled requirements. That apart, it is not the respondents who have Page No.# 8/8

approached the Trial Court seeking temporary injunction. I am, therefore, of the considered view that the reliance placed by the appellant on the aforesaid decisions, though legally sound in principle, is misplaced in the facts and circumstances of the present case.

20. Tested on the principles laid down in Wander Ltd. v. Antox India (P) Ltd. (supra), this Court finds that the discretion exercised by the learned Trial Court is a plausible and reasonable one on the material available. Absence of perversity or manifest illegality bars appellate interference by this Court.

21. In view of the above, this Court finds no infirmity, arbitrariness or perversity in the impugned order dated 12.06.2023 warranting interference in appellate jurisdiction.

22. The appeal is accordingly dismissed.

23. It is clarified that the observations made herein are confined to the disposal of the present appeal and shall not affect the merits of the suit or any proceedings under the RERA Act, 2016, which shall be decided independently by the competent forums in accordance with law.

24. There shall be no order as to costs.

JUDGE

Comparing Assistant