The appellate court has the jurisdiction to condone the delay in filing an appeal, and the appellate court's order vacating a temporary injunction was justified because the balance of convenience was in favor of the defendants.

1. - By way of this writ petition, the plaintiff-petitioner seeks to question the order dated 10.08.2010 as passed in Civil Appeal (Order) No.31/2007 whereby the learned District Judge, Merta has reversed the order dated 10.04.2007 as passed by the learned Civil Judge (Jr.Div.), Merta in Civil Misc. Case No.19/2007.

2. In the said order dated 10.04.2007, the learned Trial Court, dealing with a suit filed by the plaintiff-petitioner for cancellation of the gift-deed and for perpetual injunction, had considered an application made by the plaintiff-petitioner under Order 39 Rules 1 and 2 CPC for temporary injunction against the construction of a school building on the land in question, said to be a part of joint property and having been transferred by the defendant No. 1 by way of gift of ⅕th out of her 1/32 share. The learned Trial Court was of opinion that the necessary ingredients for grant of temporary injunction existed in favour of the plaintiff; and accordingly, issued temporary injunction and directed the defendants to maintain status quo as per the Commissioner's report dated 24.03.2007.

3. The defendants Nos. 2, 4 and 5 preferred an appeal against the aforesaid order dated 10.04.2007 while arraying only the plaintiff as the respondent therein. The appeal was filed after a delay of about 20 days but the learned Appellate Court considered it just and proper to condone the delay in filing the appeal. The learned Appellate Court found the order as passed by the learned Trial Court not in conformity with the legal principles and found no justification for issuing the temporary injunction in this matter where the defendants-appellants had obtained the land under the registered gift deed for the purpose of construction of a school building, meant for the purpose of the children of the village.

4. The order impugned was passed by the learned Appellate Court on 10.08.2010 and this writ petition seeking to question the same was filed in this Court on 07.10.2010 but, as per the office report dated 11.10.2010, it carried as many as 13 defects. The matter remained on the defect side for long. The defects were removed only on 15.12.2011 and hence, this petition has come up for admission today for the first time.

5. The learned counsel for the petitioner has argued that the appeal as filed in this matter had been fundamentally incompetent where all the parties to the suit and the application for temporary injunction were not impleaded. The learned counsel further submitted that the learned Appellate Court has approached the case from an altogether wrong angle where the Trial Court's considered order granting temporary injunction has been reversed without any justification. The learned counsel submitted that though the learned Appellate Court has cursorily observed about the necessary ingredients for grant of temporary injunction being not in favour of the plaintiff but has not assigned any reason in that regard. The learned counsel yet further submitted that the appeal was grossly belated and when the appellants failed to give out sufficient cause towards delay, the learned Appellate Court has acted wholly illegally in condoning the delay at the end of the order impugned in a cursory manner without any finding on sufficient cause.

6. The submissions as made by the learned counsel for the petitioner all relate essentially to the matter of form and not to the substance. The appeal was filed by the persons/authorities who were parties to the suit and who were directly affected by the temporary injunction issued by the learned Trial Court. Of course, it would have been proper if the other parties to the suit were joined as proforma parties in the appeal but then, so far the order for temporary injunction was concerned, that had been passed by the learned Trial Court only in favour of the plaintiff-petitioner and there was no other person in whose favour the said order was operating. In other words, absence of any other person on the r