Sohan Lal and Others vs Ram Bux and Others

Sangeet Lodha, J.�This writ petition is directed against order dated 2.3.12 passed by the Additional District Judge (F.T.) No. 1, Pali, whereby an appeal preferred by the respondents-plaintiffs against the order dated 3.11.08 passed by the Civil Judge (J.D.), Jaitaran in Civil Misc. Case No. 57/01, rejecting the application preferred by the respondents-plaintiffs under Order XXXIX Rule 1 & 2 C.P.C. seeking temporary injunction, has been partly allowed and the injunction has been granted in favour of the plaintiffs in terms that the parties shall maintain the status quo in respect of the record of the disputed property till the disposal of the suit.

The relevant facts are that the petitioners filed a revenue suit for partition and injunction in the court of Sub Divisional Officer (SDO), Jaitaran inter alia against the father of the respondents-defendants. The suit was decreed in terms of the compromise arrived at between the parties. The partition was effected by meets and bounds and the parties were put into actual physical possession at the site. Against the judgment and decree dated 17.10.09 passed by the SDO, the respondent No. 1 to 3 preferred an appeal before the Revenue Appellate Authority (RAA), Pali, which stood rejected vide order dated 31.10.01 passed in Appeal No. 90/01. The judgment passed by the RAA was not further appealed against and thus, the same has attained finality.

Thereafter, the respondent No. 1 to 3 preferred an application under Section 12 read with Order IX Rule 9 and order XXIII Rule 1 CPC, which was dismissed vide order dated 19.1.06. Aggrieved thereby, the respondent No. 1 to 3 preferred an appeal before RAA, Pali being No. 16/06, which was also dismissed on 23.3.12.

Now, the respondents-defendants have preferred a suit in the court of Civil Judge (J.D.), Jaitaran for declaring the compromise decree dated 17.9.01 as null and void. The petitioner also preferred an application seeking temporary injunction which stood dismissed by the trial court observing that the plaintiffs have no prima facie case in their favour. Aggrieved thereby, the respondents preferred an appeal, which has been partly allowed by the appellate court and the injunction has been granted in favour of the respondents-plaintiffs in the terms indicated above. Hence, this petition.

Learned counsel for the petitioner submitted that the appellate court has seriously erred in interfering with the order passed by the trial court. Learned counsel submitted that remedy to challenge the compromise decree is either by way of filing the appeal or moving an application before the court passing the decree and thus, the suit preferred by the respondents-plaintiffs for declaring the judgment and decree passed by the revenue court as null and void, is not maintainable. Learned counsel submitted that in compliance of the decree, the parties have already been put into possession of the land falling in their share and therefore, there remains nothing to be executed. Learned counsel submitted that by no stretch of imagination, the findings arrived at by the trial court while passing the order impugned, can be said to be capricious or perverse so as to warrant interference by the appellate court. Learned counsel submitted that the petitioners undertake that they will not alienate the disputed property during the pendency of the suit.

On the other hand, the counsel appearing for the respondents submitted that the order passed by the appellate court does not suffer from any jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. In this regard, learned counsel has relied upon a decision of the Hon''ble Supreme Court in the matter of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, .

I have considered the rival submissions and perused the material on record.

It is settled law that in the matter of the temporary injunction, the jurisdiction of the appellate court is not coextensive with that of the trial court. The appellate court can interfere with an order of the trial court granting or refusing injunction only when it is satisfied that (i) the trial court has acted contrary to law or (ii) has acted arbitrarily, or (iii) that the finding of trial court regarding the three requirements of grant of injunction are perverse or capricious or (iv) that there has been a misreading of the pleadings of evidence. (vide RSEB vs. Mool Chand Jangir, 1993 (3) WLC, 388.)

In Skyline Education Institute (Pvt.) Ltd. Vs. S.L. Vaswani and Another, , the Hon''ble Supreme Court after considering its various earlier decisions dealing with the scope of appellate court''s power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction observed:

"The ratio of above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter, it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity."

Thus, in the backdrop of settled position of law as aforesaid, it needs to be considered as to whether the discretion exercised by the court below in granting temporary injunction in favour of the appellants/plaintiffs is based on objective consideration of the material placed on record and is supported by cogent reasons.

Admittedly, the appeal preferred by the petitioners against the decree passed by the trial court in terms of the compromise arrived at between the parties stands dismissed by the RAA and the same was not further appealed against and thus, it has attained finality. It is pertinent to note that the compromise arrived at between the parties attested by concerned revenue court on the basis of which the compromise decree is passed, has been signed by the respondent-plaintiff Kelki as well. Moreover, where the compromise decree is alleged to have been obtained by fraud, the party could have questioned the compromise decree before the court, which has recorded the same or by way of appeal available under the relevant statute. Thus, nothing prevented the respondents-plaintiffs from taking further remedy against the order passed by the appellate authority affirming the compromise decree passed by the trial court. In any case, it remains a debatable question as to whether the suit preferred by the respondents-plaintiffs for cancellation of the decree is maintainable.

In this view of the matter, in considered opinion of this court, the respondents-plaintiffs have no prima facie case in their favour and therefore, the court below has erred in interfering with the order passed by the trial court refusing to grant injunction, ignoring the settled position of law, noticed as above.

In the result, the writ petition is allowed. The order impugned dated 2.3.12 passed by the Additional District Judge (F.T.) No. 1, Pali in Appeal No. 22/08 is set aside. However, the petitioners shall be abide by the undertaking given before this court in terms that they will not alienate the disputed property during the pendency of the suit. No order as to costs.