Ghanshyam Son Of Late Shri ... vs Shri Bhagwati Prasad Soni Son Of ...
2022 Latest Caselaw 4429 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               S.B. Civil Miscellaneous Appeal No. 915/2022

Ghanshyam Son Of Late Shri Tanshukh Lal, Aged About 71
Years, Resident Of Ki Renwal, Present Address, Poorainiya Talab,
Balrampur, Tehsil Balrampur, District Gonda Uttarpradesh.
                                                                           ----Appellant
                                        Versus
1.          Shri Bhagwati Prasad Soni Son Of Shri Bhawani Shankar
            Soni, Resident Of House No. 1741, Jat Ke Konwe Ka
            Rasta, Poorani Basti, Second Chouraha, Chandpole Bazar,
            Jaipur, District Jaipur (Raj.).
2.          Smt. Santosh Devi, Wife Of Badriparsad Soni, Resident Of
            House No. 1561, Jat Ke Konwe Ka Rasta, Second
            Chouraha, Chandpole Bazar, Jaipur (Raj.).
3.          Smt. Anita Devi Wife Of Vijay Kumar Soni, Resident Of
            House No. 1737, Jat Ke Konwe Ka Rasta, Poorani Basti
            Second Chhuraha, Chandpole Bazar, Jaipur District Jaipur
            (Raj).
                                                                      ----Respondents

For Appellant(s) : Mr. Mohd. Adil, Advocate For Respondent(s) : Mr. Akash Gupta, Advocate

HON'BLE MR. JUSTICE PRAKASH GUPTA

Judgment

04/07/2022

This Civil Misc. Appeal has been filed by the appellant-

plaintiff (for short, 'the plaintiff') against the order dated

10.3.2022 passed by Addl. District Judge No.2, Sambhar Lake,

District Jaipur, whereby the temporary injunction application filed

by the plaintiff has been dismissed.

Facts of the case are that the plaintiff filed a suit

against the respondents-defendants (for short, 'the defendants')

(2 of 5) [CMA-915/2022]

for cancellation of the sale deed dated 30.5.2012, declaration and

permanent injunction. He also filed an application for temporary

injunction. The respondents-defendants (for short, 'the

defendants') filed reply thereto. The trial court vide its order dated

10.3.2022 has dismissed the application for temporary injunction

filed by the plaintiff. Hence, this appeal.

Learned counsel for the plaintiff submits that the order

dated 10.3.2022 passed by the trial court is based on non

consideration of the material documents. He further submits that

from the affidavit and documents produced by the plaintiff, he was

able to make out a strong prima-facie case for granting T.I. in his

favour, but without considering the material available on record,

the court below dismissed the temporary injunction application.

He further submits that on the one hand, it has been observed by

the trial court that the documents said to be forgedly prepared by

the non applicant-defendant no.1, while keeping the plaintiff in

fallacy, is a matter of evidence and on the other hand the

temporary injunction application has been dismissed. Thus,

contradictory observations have been made by the trial court.

Therefore, the order dated 13.11.2018 passed by the court below

is liable to be quashed and set-aside.

On the other hand, learned counsel for the respondents

has opposed the same and submits that no prima-facie case,

balance of convenience and irreparable loss being made out in

favour of the plaintiff-applicant, the learned Court below has

rightly rejected the application for temporary injunction, hence no

interference therewith is required by this Court.

Heard. Considered.

(3 of 5) [CMA-915/2022]

The trial court while dismissing the application under

Order 39 Rule 1 and 2 CPC with regard to prima-facie case

observed as under:-

"izFke n`"V;k ekeyk [email protected] dks bl fcanw dks lkfcr djus gsrq vius izkFkZuk i= ds ek/;e ls eq[R;kjukek dks QthZ ,oa cukoVh o Lo;a dh LosPNk o lgefr ls u fd;k tkuk rFkk ukekardj.k ds dkxtkr rS;kj djk;s tkus dh vkM esa izfroknh la[;k 1 }kjk rS;kj dj fy;k tkuk tkfgj fd;k gSA tcfd izfroknh la[;k 1 }kjk lu 1995 esa [email protected] }kjk eq[R;kjvke fu;qDr fd;k tkdj cSpku fd;k tkuk tkfgj fd;k gS ,oa izfroknh la[;k 1 o 2 dks lu~ 2012 esa foØ; fd;k tkuk crk;k gSA [email protected] }kjk ftu nLrkostksa dks dwVjfpr ,oa eqxkyrs esa j[kdj izkFkhZ la[;k 1 ds }kjk rS;kj fd;k tkuk crk;k gS] og lk{; dh fo"k;&oLrq gSA ftudks mHk; i{k dh lk{; ds i'pkr~ gh r; fd;k tkuk laHko gksxk fd eq[R;kjukek ,oa bdjkjukek fnukafdr 26-08-1995 eqxkyrs esa j[kdj ukekardj.k dh vkM esa QthZ :i ls rS;kj fd;s x;sA ,slh fLFkfr esa izkFkhZ izFkr n`"V;k ekeyk vius i{k esa lkfcr djus esa vlQy jgk gSaA^^

In the case of Smt. Vimla Devi versus Jang Bahadur

reported in RLW 1977 page 327, the Coordinate Bench of this

Court has held as under:

"Another well established principle while disposing of the application under Order 39 Rules 1 and 2 CPC is that when the Court while dealing with the case for grant of temporary injunction decides the question of prima facie case, it should apply its judicial mind to the materials which are placed on the record and if it does not do so, then it commits illegality in the exercise of jurisdiction and in that case, the High Court is competent to interfere.

(4 of 5) [CMA-915/2022]

In the case of Cosmos Buildwell Pvt. Ltd. (M/s.)

Versus Laxman Singh & Ors. reported in 2010 (3) RLW 2761

(Raj.), the Coordinate Bench of this Court has held that when the

Trial Court not considered the documents placed before it, the

order passed is a cryptic order, and the same can be termed as

non-speaking order.

In the case of Vellakutty Versus Karthyavani

reported in AIR 1968 Kerala 179, the Kerala High Court has held

as under:

"Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case so justify issuance of a temporary injunction".

In the case of Vadivel Mudaliar and another Versus

Pachianna Gounder reported in AIR 1974 Madras 87, the

Madras High Court has observed as under:-

"In the matter of granting temporary injunction it is the duty of the Court to take into consideration the affidavits and the relevant documents before it records a finding. Taking into consideration the documents does not mean merely referring to the same in the judgment; but there must be some discussion about them before any conclusion is arrived at.

Unfortunately, the Courts below have not adverted to these documents, though not in detail at least prima facie, except referring them in their judgments. This has completely vitiated the orders of the Courts below, which, in my opinion is a material irregularity and has to be taken that the Courts below have not exercised their jurisdiction vested in them by law."

Since contradictory observations have been made by

the Trial Court, the order dated 10.3.2022 passed by the trial

court seems to be arbitrary and perverse, therefore, the same is

not sustainable. Thus, without going into the merits and demerits

(5 of 5) [CMA-915/2022]

of the case and in view of the aforesaid judgments, the impugned

order dated 10.3.2022 passed by the Trial Court is liable to be

quashed and set-aside.

Accordingly, the appeal filed by the plaintiff-applicant is

allowed; the order dated 10.3.2022 passed by the trial court is

quashed and set-aside and the matter is remanded to the court

below with a direction to decide the application for temporary

injunction filed by the plaintiff-applicant afresh, in accordance with

law, without being influenced by its earlier order.

(PRAKASH GUPTA),J

DK/4

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