WPMS/1964/2022
2022 Latest Caselaw 2570 UK

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                                  WPMS No. 1964 of 2022
                                  Hon'ble Manoj Kumar Tiwari, J.

Mr. Ankit Shah, learned counsel for the petitioner.

Mr. Himanshu Pal, learned counsel for respondent no. 1.

Petitioner filed a suit for injunction against his brother (respondent no. 1 herein). With the suit, petitioner also filed an application seeking temporary injunction. Learned trial court rejected petitioner's application vide order dated 14.12.2020. Petitioner filed an appeal under Order 43 Rule 1(r) of C.P.C., which has also been dismissed by learned Additional District Judge, Laksar, District Haridwar vide judgment dated 10.08.2022.

Feeling aggrieved by these two orders, petitioner has approached this Court.

Heard learned counsel for the parties and perused the record.

The order passed by learned trial court is on record as Annexure 5 to the writ petition.

Learned trial court has considered all the relevant factors, mainly, prima facie case, balance of convenience and irreparable injury in great details. Since property in dispute is an ancestral property which has not been partitioned, therefore, petitioner cannot claim exclusive possession over a particular portion of that property in the absence of any partition. Thus, learned trial court has held that petitioner has not been able to establish prima facie case for grant of temporary injunction.

Learned Appellate Court has affirmed the said findings of learned trial court. Since grant of temporary injunction is discretionary, and both, learned trial court and appellate court, have refused to exercise their discretion in favour of petitioner/plaintiff, therefore, this Court does not find any reason to interfere with the discretionary order passed by courts below.

Mr. Ankit Shah, learned counsel appearing for the petitioner fairly submits that since petitioner and respondent no. 1 are real brother, therefore, there is possibility of amicable settlement of dispute, if they are referred for mutation.

Mr. Himanshu Pal, learned counsel appearing for respondent no. 1 also submits that his client is ready for mediation, if efforts are made for amicable resolution of the lis.

In such view of the matter, the writ petition is disposed of with a request to learned trial court to send the parties for mediation before proceeding any further in the matter.

(Manoj Kumar Tiwari, J.) 22.08.2022 Aswal