The court emphasized the importance of honest disclosure of material facts and the need for the appellate court to respect the trial court's discretion unless exercised arbitrarily.

JUDGMENT :

R. Narayana Pisharadi, J.

1. The petitioner is the second defendant and the first respondent is the plaintiff in the suit O.S. No. 55/2020 on the file of the Munsiff's Court, Thalassery. The second respondent is the first defendant in the suit.

2. The suit is instituted for granting a decree for demarcation of the eastern boundary of the plaint A schedule property owned by the plaintiff. The plaintiff has also sought a decree of prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property and making any construction in that property.

3. The material averments in the plaint are as follows: The plaint A schedule property belongs to the plaintiff. The property on the eastern side of the plaint A schedule property, which is described in the plaint B schedule, jointly belongs to the defendants. There is definite boundary on all sides of the plaint A schedule property, except on the eastern side. There was a small mud varamba on the eastern side of the plaint A schedule property separating it from the plaint B schedule property. This varamba collapsed and it is not in existence now. The defendants are making some construction in their property. On 31.01.2020, the employees of the defendants tried to construct a basement in the plaint A schedule property. They failed in their attempt due to the obstruction made by the plaintiff. The defendants have declared that they would trespass upon the plaint A schedule property and make construction in it. Hence the suit.

4. Along with the suit, the plaintiff filed an application as I.A. No. 2/2020 for granting an order of temporary injunction restraining the defendants from trespassing into the plaint A schedule property and making any construction in it.

5. The second defendant alone filed objection to the above application, mainly raising the following contentions. She is the absolute owner of the plaint B schedule property. The first defendant had released his right over the property in her favour by executing a document. The first defendant had constructed a boundary wall on the eastern side of the plaint A schedule property in the year 2013. The averment in the plaint that there was a mud varamba on the eastern side of the plaint A schedule property is not correct. The plaint B schedule property is having separate, definite and clear boundary on all four sides including the western side. The second defendant is making construction in the plaint B schedule property. She has not made any attempt to trespass upon the plaint A schedule property. No incident occurred on 31.01.2020 as alleged in the plaint.

6. As per Ext. P4 order dated 16.06.2020, the trial court dismissed the application for temporary injunction filed by the plaintiff.

7. Aggrieved by the dismissal of the application for temporary injunction, the plaintiff filed appeal as C.M.A. No. 12/2020, challenging Ext. P4 order.

8. As per Ext. P5 judgment dated 14.08.2020, the appellate court allowed the appeal and granted an order of temporary injunction in favour of the plaintiff and against the second defendant, restraining the second defendant from proceeding with the construction of the building in the disputed portion of the property.

9. The second defendant has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext. P5 judgment.

10. Since no order of injunction has been granted against the first defendant in the suit and since he has no substantial interest in the subject matter of dispute, service of notice on him, who is arrayed as the second respondent in the original petition, is dispensed with.

11. Heard learned counsel for the petitioner and also the first respondent.

12. Learned counsel for the petitioner contended that the appellate court has arbitrarily exercised its jurisdiction to reverse the finding made by the trial court and substituted its own view in passing Ext. P5 judgment and granting an order of injunctio