1981 Supreme(MP) 44

B. C. Varma, J.
Om Prakash Singh v. Smt. Sunder Bai
C. Revn. No. 533 of 1980 (J); Decided on 29-1-1981.

Headnote:(1) Civil P. C. 1908 -- S. 115 -- revision under -- finding as to possession -- whether may be interfered with.

        (2) Civil P. C., 1908 -- O. 39. Rr. 1 and 2 -- temporary injunction -- order of -- whether discretionary -- order of trial Court -- when liable to be interfered in appeal - prima facie case -- what is.

        On a suit filed by the non-applicant Sunderbai for injunction restraining the applicants from disturbing her possession and from dispossessing. her from the suit lands which is about 14.12 acres of land in village Latori district Balaghat, the trial Court on being moved for grant of temporary injunction during the suit, dismissed that application on a finding that the non-applicant could not prove a prima facie case. On appeal by the non-applicant the lower appellate Court took a contrary view and finding that the non-applicant was in possession on the date of the suit and has disclosed a prima facie title to the suit land, it reversed the order of the trial Court and granted temporary injunction prayed for. Hence this revision.

        Held : The grant of temporary injunction under the powers conferred by Order 39, rule 1, Civil Procedure Code, is a matter of discretion of the Judge trying the suit. If the Court which grants the injunction rightly appreciates the facts and applies to those facts and the true principle then that is the sound exercise of judicial discretion and a Court hearing an appeal from such an order would not ordinarily interfere (See: Durga Das v. Nalin Chandra (A. I. R. 1934 Cal. 694) and M. P. Colliery Workers Federation Ltd. Calcutta v. United Colleries (1972 JLJ 167). Therefore, before the appellate Court interferes with the finding of the trial Court in the matter of grant of temporary injunction, it has to reach a conclusion that the trial Court has not adhered to the principles for grant of temporary injunction or that the exercise of discretion by the trial Court cannot be said to be Judicial. In the present case, the facts on record show that the non-applicant plaintiff claims title to the suit land as an heir of her sister. Whether such a claim is tenable or not shall be decided only after the trial of the case. The learned counsel for the applicants did not say that she cannot be an heir at all but what was contended was that it shall depend upon the nature of the acquisition of the property by the last holder. Thus it is clear that this question can only be decided after the trial as there appears to be a prima facie case in favour of the non-applicant/plaintiff.

        The finding that the non-applicant was in possession on the date of the suit is based upon the consideration of the material on record. It may be right or it may be wrong. It is, however, not the function of this Court exercising revisional jurisdiction to disturb such a finding. AIR 1934 Cal. 694, 1972 JLJ 167 and AIR 1973 SC 76 relied on. Revision dismissed.