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Judgment
K.A. Swami, C.J.—This Appeal is preferred against the order dated 9.11.1993, passed by the learned single judge in Civil Miscellaneous
Appeal No. 215 of 1993.
The aforesaid appeal was filed against the order dated 11.1.1993, passed by the learned Subordinate Judge, Pattukkottai, on I.A. No. 185 of
1992 filed in A.S. No. 62 of 1992. The facts necessary for the purpose of deciding the question as to whether the learned single Judge is justified
in setting aside the order dated 11.1.1993 passed by the Subordinate Judge, Pattukkottai are as follows: The appellant is the defendant in the
Original Suit No. 42 of 1990 filed in the District Munsifs Court, Pattukkottai by the respondent-plaintiff for a declaration that the plaintiff is the
owner of the land bearing Survey No. 193/4B, measuring 46 cents, situate in Karambayam village, Pattukkottai Taluk, Thanjavur District and also
for a permanent injunction from interfering with his peaceful possession and enjoyment of the land. The plaintiff claimed that he had obtained sale
deed from the son of the defendant, transferring the land in question and from the date of sale he has been put in possession of the same and has
been in enjoyment of it. On the contrary, the defendant pleaded that the land in question had not been put to the share of his son; therefore, he had
no right to alienate the same. The trial court decided the suit against the plaintiff both on title as well as on possession and dismissed the suit.
Aggrieved by the decree of the trial Court, the plaintiff has preferred A.S. No. 62 of 1992 in the Court of the Subordinate Judge, Pattukkottai.
Pending the appeal, the plaintiff-appellant made an application for an order of temporary injunction. The learned Subordinate Judge has rejected it
on considering the contentions elaborately. The learned single Judge in the civil miscellaneous appeal has set aside that order. The reason given by
the learned single Judge for setting aside the order is found in paragraph 4, which reads thus:
The respondent herein has filed a counter affidavit. This respondent is the son of Chinnathambi Udaiyar who has sold the suit-property to the minor
plaintiff. It is not disputed that there was an injunction during pendency of the suit as against the respondent herein. The suit was dismissed by the
trial court. The vendor of the suit property in favour of the appellant herein is none other than his own son. It is a registered sale deed and in view
of the order of interim injunction granted by the trial court, I am inclined to continue the same during pendency of the first appeal. In the
circumstances, the order of the lower appellate court is set aside and there shall be an order of interim injunction as prayed for in I.A. No. 185 of
1992 pending disposal of the appeal A.S. No. 62 of 1992....
Thereafter, the learned single Judge has directed the transfer of A.S. No. 62 of 1992 to the Principal Subordinate Judge, Thanjavur. Thus, from
the order of the learned single Judge, it is clear that the only reason that has prevailed upon the learned single Judge is that the vendor of the suit
property is no other than the son of the defendant and there is a sale deed executed by him in favour of the plaintiff and that there was an order of
temporary injunction granted during the pendency of the suit and therefore, the order passed by the learned Subordinate Judge refusing to grant an
order of temporary injunction pending the appeal is liable to be set aside. It is relevant to notice that though an appeal lies against an order granting
or refusing to grant a temporary injunction, but the scope of such an appeal is not as that of a regular appeal. The appellate court is required to see
only as to whether the trial court has exercised the discretion judiciously and has taken into consideration the factors, which are relevant to an
order of temporary injunction. Mere fact that an appellate court would come to a different conclusion on appreciation of the contentions that the
one arrived at by the trial court, is not a ground for interfering with the order passed by the trial court granting or refusing to grant an order of
temporary injunction, consequently, whenever an appeal is filed against an order granting or refusing to grant an order of injunction, in deciding the
appeal the appellate court also shall have to bear in mind the findings recorded by the trial court and the reasons given, and consider whether the
discretion is properly and judicially exercised whether the order is unreasonable and palpably unjust and erroneous and ignores material facts and
circumstances and thereby there is miscarriage of justice. In the case of an application filed for temporary injunction in the appeal preferred against
the judgment and decree passed in the suit, the findings recorded by the trial court while decreeing or dismissing the suit will have a great value in
consideration such an interlocutory application. Until the appeal is decided, those findings will prevail. Unless it is shown that the findings, on the
very face of them are bad, unreasonable, palpably erroneous normally pending disposal of the appeal, such findings do form a basis for considering
the application. Of course, in exceptional cases, where it is shown that there is going to be irreparable loss or failure of justice, it is open to the
appellate court to consider the question of issuing an order of temporary injunction, on being satisfied that the findings are perverse or unreasonable
and are at arrived at ignoring material evidence.
Learned single Judge has not adverted to any of these aspects. When the trial court has recorded a finding that the son of the defendant had no
authority to alienate, pending disposal of the appeal, there was no reason whatsoever to take a different view. Therefore, we find it difficult to
accept as correct and affirm the order passed by the learned single Judge.
Learned Counsel appearing for the respondent submitted that there was an order of temporary injunction during the pendency of the suit,
therefore, as the findings recorded by the trial court are open to challenge in the appeal, it is just and necessary to maintain the status quo. Hence,
the learned single judge is justified in setting aside the order of the learned first appellate judge and consequently granting an order of temporary
injunction. It may be relevant to notice that the learned first appellate judge has also borne in mind this aspect of the matter and has acted upon the
findings recorded by the trial court in considering the prayer for granting or refusing to grant an order of temporary injunction. In doing so, the
learned first appellate judge cannot be held to have acted either illegally or arbitrarily or unreasonably. Therefore, we are of the view that there is
no justification to interfere with the order of the first appellate judge.
It is next contended that as the first appellate judge has expressed opinion on several points arising in the appeal, while considering the interim
prayer, no purpose is served by permitting him to decide the appeal. Therefore, the learned single Judge is justified in directing the appeal to be
withdrawn from his file and to be transferred to the Principal Subordinate Judge, Thanjavur. We are of the view that merely because a judge
expresses certain opinion while considering the interim prayer, he cannot be disqualified from hearing and deciding the appeal. Any opinion
expressed on the interim prayer is intended only for that purpose. It cannot be construed as final and conclusive. It is always open to decide the
appeal without reference to such observations or findings recorded at the interlocutory stage. If it is accepted as valid principle or rule that a Judge
while deciding the interlocutory matter if expresses any opinion on the issues arising in the matter, he cannot be permitted to finally hear and decide
the appeal, it would lead to anomalous situation and it would be disastrous to the very system the order passed by the learned single judge
directing the withdrawal of the appeal from the subordinate Judge and transferring the same to the Principal Subordinate Judge, Thanjavur, also
cannot be sustained in law.
For the reasons stated above, this letters patent appeal is allowed, the order dated 9.11.1993 setting aside the order dated 11.1.1993 passed
on I.A. No. 185 of 1992 by the learned Subordinate Judge, Pattukkottai, in A.S. No. 62 of 1992 is set aside. The order dated 11.1.1993 passed
on I.A. No. 185 of 1992 is restored. The judgment dated 9.11.1993, directing the withdrawal of the appeal A.S. No. 62 of 1992 from the file of
the Subordinate Judge, Pattukkottai and transferring the same to the file of the Principal Subordinate Judge, Thanjavur is set aside.
We also further make it clear that any observations or the findings recorded by the learned Subordinate Judge, Pattukkottai, while deciding I.A.
No. 185 of 1992 shall not be taken into consideration while deciding the appeal A.S. No. 62 of 1992, which shall be decided on the basis of the
evidence on record and the contentions urged by both sides. In the facts and circumstances of the case, there will be no order as to costs.