Rudresh Jhunjhunwala Son Of Late ... vs Satish Kumar Son Of Shri Jagdish ...
2022 Latest Caselaw 1225 Raj/2

             HIGH COURT OF JUDICATURE FOR RAJASTHAN
                         BENCH AT JAIPUR

                S.B. Civil Miscellaneous Appeal No. 136/2022

     1.      Rudresh Jhunjhunwala Son Of Late Shri Krishanchand
             Jhunjhunwala, Aged About 40 Years, R/o 42, Penorama,
             203 Walkeshwar Road, Mumbai-400006.
     2.      Smt Suman W/o Late Shri Krishnachand Jhunjhunwala,
             Aged About 69 Years, R/o 42, Penorama, 203 Walkeshwar
             Road, Mumbai-400006.
     3.      Mu. Hemangini Jhunjhunwala D/o Late Shri Krishnachand
             Jhunjhunwala, Aged About 43 Years, R/o 42, Penorama,
             203   Walkeshwar          Road,        Mumbai-400006          Unjhunu.
             (Rajasthan.)
                                                                       ----Appellants
                                        Versus
     1.      Satish Kumar Son Of Shri Jagdish Prasad, Aged About 41
             Years, R/o Luharu Road, Town Pilani, Police Station-Pilani,
             Tehsil Surajgarh, District Jhunjhunu (Rajasthan.)
     2.      Sub Registrar, Chirawa, District Jhunjhunu (Rajasthan)
     3.      State Of Rajasthan Through Its Tehsildar, Chirawa, District
             Jhunjhunu (Rajasthan.)
                                                                     ----Respondents

For Appellant(s) : Ms. Sukriti Kasliwal, through VC For Respondent(s) :

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

03/02/2022

Reportable

1. By way of this civil misc. appeal, a challenge has been made

to the order dated 03.09.2021 whereby and whereunder an

application filed under Order 39 Rules 1 & 2 CPC has been allowed

and during the course of trial of the civil suit for specific

performance filed by respondent No.1-plaintiff, the appellants-

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defendants have been restrained not to transfer the disputed land

and to maintain status quo until the decision of the civil suit.

2. In the present appeal, the consideration before this Court is

that when the trial court has exercised its discretionary and

equitable jurisdiction to grant the temporary injunction in favour

of plaintiff and against defendants, should this Court interfere with

the order of temporary injunction passed by the trial court, under

its appellate jurisdiction?

3. The appellants are defendant Nos.1 to 3 and respondent

No.1 is plaintiff and respondent Nos.2 & 3 are defendant Nos.4 &

5 before the trial court. For clarity, the parties shall be referred

hereinafter with the same status as called before the trial court.

4. The relevant facts of this case as culled out from the record

are that plaintiff filed a civil suit for specific performance of an

agreement to sell dated 30.04.2014 along with an application for

temporary injunction in the year 2014 itself. The plaintiff has

relied upon an agreement dated 30.04.2014 to contend that the

defendant No.1 for himself and being power of attorney holder for

defendant Nos.2 & 3 had agreed to sell the land of 0.49 hectare of

Khasra No.961 located at Village Chirawa, District Jhunjhunu to

him against total sale consideration of Rs.56,30,000/-. Plaintiff

has placed on record the agreement as also the special power of

attorney said to be given by defendant Nos.2 & 3 in favour of

defendant No.1. As per agreement, entire sale consideration has

been paid and the possession is delivered to the plaintiff. The

plaintiff averred that although he was assured by the defendants

to execute the registered sale deed however, it transpired to him

that instead of making the sale deed in his favour, the defendants

are going to sale their land to other person(s). In that backdrop of

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facts, the plaintiff filed the present civil suit for specific

performance along with an application for temporary injunction.

5. One of the relevant facts is also available on record that the

defendants have already executed a registered sale deed dated

22.05.2014 for the area of 0.41 hectare of Khasra No.961 in

favour of the plaintiff's father namely, Shri Jagdish Prasad Sharma

and one Shri Vinod Kumar Bhageria and that sale deed is in

relation to area of 0.41 hectare which is other part of land, than

the area of 0.49 hectare of Khasra No.961 agreed to be sold to

plaintiff through the agreement in question dated 30.04.2014.

6. Learned counsel for appellants has argued that the trial court

has committed serious illegality and perversity in granting the

injunction in the present case whereas the civil suit for specific

performance itself stand bad in law and is not liable to succeed on

merits, therefore, the plaintiff was not entitled for any temporary

junction in his favour. She submits that the agreement in question

dated 30.04.2014 itself is a void document as it suffers from

uncertainty because the specifications and parameter of the land

in question measuring 0.49 hectare of Khasra No.961 are absent,

as such by virtue of Section 29 of Indian Contract Act, 1872, this

agreement be treated as void contract. Learned counsel for the

appellants submits that the agreement in question is neither

registered nor properly stamped, therefore, cannot be relied upon

before the court of law. She argued that neither sale consideration

was paid by plaintiff nor any possession was handed over to him

and the agreement in question is not a genuine and reliable

document. She has further argued that apart from three

defendants, their mother Smt. Shanti Devi is also co-sharer for

1/4 share in the subject land and she is not party in the present

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suit as also in the application for temporary injunction, therefore,

for this reason also the suit is defective. Thus, her submission is

that trial court fell in error while granting injunction and,

therefore, the impugned order is liable to be set aside,

consequentially the application for temporary injunction deserves

to be dismissed.

7. Heard counsel for appellants and perused the impugned

order dated 03.09.2021.

8. A bare perusal of impugned order dated 03.09.2021 goes to

show that the trial court has considered the agreement to sell in

question as also the special power of attorney of defendant No.1

and after considering the respective pleadings of both the parties,

has reached to the conclusion that prima facie case stands in

favour of plaintiff. In the impugned order, the trial court has

clearly observed that the defendants have not denied their

signatures either on the agreement in question or on the special

power of attorney neither the defendants have alleged that the

agreement to sell in question is a forged and fabricated document

nor have initiated any criminal proceedings against the plaintiff to

prepare such documents falsely and fordgely. The trial court has

clearly observed that in the present case intricate and serious

questions of fact and law are involved between the parties which

can be adjudicated after recording of evidence of both the parties

during the course of trial. Thus, the trial court has found prima

facie case in favour of plaintiff, after appreciation of the respective

pleadings, documents and other attending circumstances. Apart

from the prima facie case, the trial court has also independently

dealt with the points of balance of convenience and irreparable

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injury. In this way, the order of trial court can be said to be a well

speaking and reasoned order.

9. This is also relevant to take note that apart from the

agreement to sell in question, the defendants have already sold a

part of 0.41 hectare land of Khasra No.961 through registered sale

deed dated 22.05.2014 in the name of plaintiff's father-Shri

Jagdish Prasad Sharma and Shri Vinod Kumar Bhageria. Although,

the counsel for appellants submits that they have initiated

separate legal proceedings to cancel such sale deed. It may also

be noted that defendants has not filed any separate application to

declare the agreement to sell in question as inadmissible and for

not consider the same for any purpose, due to want of registration

and insufficient stamp duty. So such objection can be dealt with

by trial court as and when such application would be filed by the

defendants. As far as objection as to whether the agreement in

question is a void document or not is concerned, the same may

not be examined and decided at this stage. In the opinion of this

Court, the issues raised by the counsel for appellant before this

Court either disputing the factual issues or the legal issues, are

amenable to be adjudicated by the trial court during course of trial

of suit at appropriate stage and it is not permissible in law to

usurp the jurisdiction of trial court by the appellate court, while

exercising it appellate jurisdiction against the order of grant of

temporary injunction. It is needless to reiterate that all these

factual and legal issues are opened to be considered by the trial

court during the course of trial and after recording the evidence of

parties. In the given facts of present case, it cannot be said that

the trial court has exercised discretion and equitable jurisdiction in

an arbitrary and whimsical manner. The order impugned may not

(6 of 8) [CMA-136/2022]

be said to be a perverse order or suffers from grave illegality or

jurisdictional error moreover, the view taken by the trial court is

not an impossible view.

10. The principles of law, governing application under Order 39

Rules 1 & 2 CPC is no more res integra and it has settled in catena

of judgments that if the trial Court has exercised its discretion in

granting injunction, jurisdiction of Appellate Court to interfere with

the order of trial Court is very limited. The interference in the

temporary injunction order passed by the trial Court can be made

only in situation where the Appellate Court is satisfied that trial

Court has acted arbitrarily or contrary to law or that findings of

trial Court are perverse or capricious, palpably incorrect and are

wholly untenable. If, view taken by trial Court is a possible view,

the same is not required to be interfered with by the Appellate

Court.

11. In support of such proposition of law, judgment passed by

this Court in case of The Rajasthan State Electricity Board Versus

Mool Chand Jangir (1993 3 WLC (Raj.) 338) as well as judgments

passed by the Hon. Supreme Court in case of Wander Ltd. & Anr.

Versus Antox India Pvt. Ltd. (1990 (Supp) SCC 727) and Mohd.

Mehtab Khan & Ors Versus Khushnuma Ibrahim Khan & Ors.

(2013 (9) SC 221), may be referred.

12. Further apart from prima facie case, it is also required to be

considered that what nature of loss or injury or prejudice would be

caused to the party, if he is restrained by way of temporary

injunction during course of trial. In present case, trial court has

dealt with this ingredient also and observed that balance of

convenience tilts in favour of plaintiff and it is the plaintiff who

may suffer irreparable loss not the defendant, if temporary

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injunction is not granted. The defendant could not make out a

case that they would suffer any grave loss or injury or prejudice

by the injunction order passed by the trial court.

13. The Hon'ble Supreme Court, in the case of Maharwal

Khewaji Trust (Regd.) Faridkot versus Baldev Dass reported

in [(2004) 8 SCC 488] has propounded a principle of law in

relation to grant of temporary injunction under Order 39 Rules 1 &

2 CPC that unless and until a case of irreparable loss or damage is

made out by a party to the suit, the Court should not permit the

nature of the property being changed which also includes

alienation or transfer of the property which may lead to loss or

damage being caused to the party who may ultimately succeed

and may further lead to multiplicity of proceedings. The said

principle has further been followed in the case of Dev Prakash &

Anr. Versus Indra & Ors. reported in [(2018) 14 SCC 292]

wherein the Hon'ble Supreme Court observed that it is the very

essence of the concept of temporary injunction and receivership

during the pendency of a civil litigation involving any property is to

prevent its threatened wastage, damage and alienation by any

party thereto, to the immeasurable prejudice to the other side or

to render the situation irreversible not only to impact upon the

ultimate decision but also to render the relief granted, illusory. The

Hon'ble Supreme Court observed that the judicial discretion has to

be disciplined by jurisprudential ethics and can by no means

conduct itself as an unruly horse.

14. After discussion of factual and legal aspect in detail, this

Court is of considered view that this is not a fit case where the

appellate court should exercise its power to interfere with the

order of temporary injunction passed by the trial court. Thus, no

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interference is called for with the impugned order and accordingly

the appeal is hereby dismissed.

15. All pending application(s), if any, also stand(s) disposed of.

16. There is no order as to costs.

(SUDESH BANSAL),J

SAURABH/6

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