WPMS/2999/2018
2023 Latest Caselaw 1236 UK

                Office Notes,
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                                  WPMS No. 2999 of 2018
                                  Hon'ble Manoj Kumar Tiwari, J.

(1) Mr. Rajat Mittal, learned counsel for the petitioners.

(2) Mr. Dharmendra Barthwal, learned counsel for the respondent.

(3) By means of this writ petition, petitioners have challenged the order dated 03.08.2016 passed by learned Civil Judge (J.D.), Haldwani in Original Suit No. 1 of 2016, whereby temporary injunction application filed by plaintiff (respondent herein) was allowed. Petitioners have also challenged the judgment rendered by 1st Additional District Judge, Haldwani in their Miscellaneous Civil Appeal No. 29 of 2016, whereby their appeal, filed under Order 43(1)(r) C.P.C., has been dismissed.

(4) The fact, on which there is no dispute, is that defendant filed a suit for permanent injunction, based on a registered sale deed dated 24.04.1984 alleged to have been executed by Ganpat Rai in his favour, restraining defendants, their servants, agents, assignees etc. from creating any third party interest over the suit property. In their written statement, petitioners disputed execution of any sale deed by Ganpat Rai in favour of respondent and they contended that the sale deed, relied by plaintiff/respondent, is a forged document. Petitioners further contended that plaintiff- respondent has also relied upon (i) power of attorney allegedly executed by Ganpat Rai in favour of respondent and (ii) Will, alleged to have been executed by Ganpat Rai in favour of plaintiff respondent for claiming title over the suit property before various forums.

(5) Mr. Rajat Mittal, learned counsel for petitioners contends that coordinate Bench of this Court in WPMS No. 161 of 2014 filed by plaintiff had expressed doubt upon genuineness of Will dated 16.07.2010, relied by petitioner, in para 14 of the judgment dated 02.11.2017. He thus contends that since the sale deed, relied upon by plaintiff, itself is under cloud, therefore, learned trial court erred in granting temporary injunction in favour of plaintiff. He further contends that appellate court also overlooked this aspect of the matter, therefore, the judgments and orders passed by learned courts below are liable to be set aside on this sole ground alone.

(6) I have gone through the impugned order passed by learned trial court. On the question of prima facie case, learned trial court has observed that validity of sale deed is a matter of trial and order of temporary injunction was passed in favour of plaintiff by observing that it is necessary to preserve the suit property during trial. Learned appellate court has also considered all relevant aspects while dismissing petitioner's appeal.

(7) It is settled position in law that grant of injunction is discretionary. Learned trial court has exercised its discretion, which has been affirmed by learned appellate court. Thus, this Court does not find any reason to interfere with the discretionary order passed by learned courts below.

(8) Accordingly, writ petition fails and is hereby dismissed.

(9) Learned counsel for petitioners points out that suit was filed in the year 2016, thus nearly seven years have gone by.

(10) Having regard to the peculiar facts of the case, learned trial court is requested to make endeavour to decide Original Suit No. 01 of 2016 as early as possible, preferably within eight months from the date of production of certified copy of this order. It goes without saying that learned trial court shall decide the suit on merit, without being influenced by any observation made in this order.

(Manoj Kumar Tiwari, J.) 03.05.2023 Aswal