Uttarakhand High Court
WPMS/2180/2022 on 14 September, 2022
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WPMS No. 2180 of 2022
Hon'ble Manoj Kumar Tiwari, J.
Mr. Bhuwan Bhatt, Advocate for the
petitioner.
Mr. Nikhil Singhal, Advocate for the
respondent.
Petitioner is aggrieved by rejection of
his temporary injunction application by
the trial court. His appeal filed under
Order 43 Rule 1(r) of C.P.C. has also been
dismissed. Thus, he has challenged the
order passed by trial court as well as the
appellate court in this writ petition.
Petitioner filed a suit for cancellation
of sale deed against Lokesh Kumar
(respondent), which is numbered as
Original Suit No. 177 of 2016. As per the
plaint allegation, the sale deed dated
06.06.2016 was procured by Lokesh
Kumar by playing fraud; petitioner had
agreed for execution of agreement to sell
the land, however, sale deed was executed
without paying sale consideration to him.
In the said suit, petitioner filed a
temporary injunction application with the
prayer that defendant be directed to
maintain status quo qua nature and
possession in respect of the suit property
during pendency of the suit. Learned trial
court rejected the said application vide
order dated 14.10.2016. Petitioner
preferred an appeal under Order 43 Rule
1 (r) of C.P.C. against the said order.
However, the appeal was also dismissed
by learned 1st Additional District &
Sessions Judge, Haridwar vide judgment
dated 30.07.2022.
The order passed by learned trial
court is on record as Annexure-1 to the
writ petition. Perusal thereof, reveals that
learned trial court has considered all three
relevant factors, namely, prima facie case,
balance of convenience and irreparable
loss in detail, and, has arrived at the
conclusion that petitioner has not been
able to make out a prima facie case for
grant of temporary injunction.
It has been held that since petitioner
executed a registered sale deed in which
there is a recital that he has received a
sum of Rs. 26,50,000/- as sale
consideration, and there is a presumption
regarding validity of a registered sale deed
till it is cancelled, therefore, no prima facie
case is made out for grant of temporary
injunction in favour of petitioner.
Learned appellate court has
considered the matter in detail and has
affirmed the finding recorded by trial court
on prima faciecase. Learned appellate
court has considered the admission by the
plaintiff (petitioner) regarding execution of
sale deed for holding that no prima facie
case is made out for grant of temporary
injunction against the defendant in whose
favour registered sale deed was executed.
It is settled position in law that grant
of temporary injunction is discretionary,
however, such discretion has to be
exercised in a judicious manner. The
party seeking temporary injunction has to
satisfy the court that it has a prima facie
case in his favour, and, the trial court is
required to examine whether the party
seeking temporary injunction has a prima
facie case or not?
From the order passed by learned
trial court as affirmed by appellate court,
it is revealed that question ofprima facie
case was considered and discussed in
great detail. Valid reasons have been
assigned for holding that petitioner could
not make out a prima facie case for grant
of temporary injunction.
In such view of the matter, this
Court is not inclined to interfere with the
discretionary order passed by the trial
court, as affirmed in appeal.
In such view of the matter, writ
petition fails and is dismissed. It is made
clear that the suit shall be decided by the
learned trial Court without being
influenced by any observation made in
this order.
Since the suit was filed by petitioner
in the year 2016, and, parties have
exchanged pleadings, therefore, this Court
hopes and expects that learned trial court
shall make endeavor to decide the suit, as
expeditiously as possible. Unnecessary
adjournment to the parties should be
avoided.
(Manoj Kumar Tiwari, J.)
14.09.2022
AK
