1985 Supreme(MP) 648

IN THE HIGH COURT OF MADHYA PRADESH
B. M. LAL, J.
Awadh Bihari - Appellant
Versus
Ashok Kumar - Respondent
C. R. No. 211 of 1985 (1)
Decided on : 07-07-1985

Headnote:(1) Civil Procedure Code, 1908 – O. 39, R. 1 and 2 – plaintiff not found in possession – temporary injunction as to possession rightly rejected.

       (2) Civil Procedure Code, 1908 – O. 39, R. 1 and 2 – question of law regarding title over suit property involved – temporary injunction restraining disposing of such property rightly granted.

       (3) Civil Procedure Code, 1908 – O. 43, R. 1 and O.39, R. 1 and 2 – discretion rightly exercised by trial Court dealing application under O. 39, R. 1 & 2 appellate Court should not interfere in the order.

        Short Note

       1. The trial Court on 14 – 6 – 84 granted injunction for a very limited purpose i.e., restraining the non – applicants from disposing of the suit property during the pendency of the suit.

       2. Against the aforesaid order of the trial Court both the applicant and the non – applicants preferred appeal before the District Court. The appeal of the applicant was dismissed whereas, the appeal of the non – applicants was allowed by this impugned order dated 20 – 2 – 1985 which has given rise to the instant revision.

       3. Held : As regards possession over the suit house is concerned, there is concurrent finding of both the Courts below that the applicant bas not been found in possession. To this effect no illegality or irregularity bas been pointed out by the learned counsel appearing for the applicant. Therefore, in my opinion, the Courts below have rightly reached the conclusion that to injunction to this effect could be granted to the applicant restraining the non – applicants from interfering with the possession of the applicant as no possession of the applicant was proved over the disputed house.

       4. However, the title of the house and its appurtenant land, being a serious question. which is being contested between the parties, without taking any evidence in the matter, at this stage it could not be said that the applicant has DO title over the suit house when on the face of the record he has filed Khasra panchsala copy showing his name and further showing that his name has been illegally struck of by the order of the Tahsildar which is under challenge before the Sub – Divisional Officer, Hatta and the operation of the order of Tahsildar has been stayed. Therefore, there appears to be some substance in the submission made by the applicant that serious question of law regarding title over the suit house between the parties, is involved.

       5. It is true that grant of temporary injunction is in discretion of the trial Court and no interference can be made if the discretion is based on sound principle. But in the instant case, having assigned cogent reasons by the trial Court, it had granted temporary injunction to the limited extent that during the pendency of the suit, the non – applicants – defendants are restrained from disposing of the suit house. This order has been set aside by the lower appellate Court without considering the fact that the order of the Tahsildar has been stayed by the sub – divisional Officer in appeal. Therefore, the grant of temporary injunction under order XXXIX, Rules 1 and 2, C.P.C. is a matter of discretion of the Judge trying the suit and if the trial Court which granted injunction rightly appreciates the facts and by applying true proposition then granting of temporary injunction is sound exercise of judicial discretion and the Court hearing appeal from such an Older would not ordinarily interfere with it. In the instant case, the lower appellate Court, while setting aside the order has not assigned any reason and has not even kept in mind that the order of the Tahsildar is sub – judice before the Sub – Divisional Officer and its operation is stayed.

       Revision allowed.