JUDGMENT

This is an appeal filed under Order 43 Rule

1(r) of the Code of Civil Procedure. The events that have led to this appeal are as follows:

2. Original Suit 246/2014 was instituted by the respondent in the court of Additional Civil Judge, Tarikere. It was a title suit based on a registered will dated 19/10/2011 executed by C.C Laxmanappa. In the suit, an order of temporary injunction was in force till its disposal restraining the appellant from interfering with respondent’s possession of suit property. The appellant herein challenged the order of grant of temporary injunction by preferring an appeal and it was dismissed. Then on conclusion of trial the suit came to be dismissed. Therefore, the respondent preferred an appeal under section 96 read with Order 41 Rule 1 CPC to the court of Senior Civil Judge, Tarikere. In the appeal respondent filed an application for temporary injunction and since by order dated 13/12/2021, the application came to be allowed, the appellants have preferred this appeal.

3. It is not necessary to deal with the factual aspects since Sri Madhusudhana Rao for the appellants and Sri R Vijay Kumar for the respondent raised legal issues while arguing. It was the argument of Sri Madhusudhana Rao that the learned Senior Civil Judge, while deciding the application for temporary injunction should have considered the evidence of the witnesses to arrive at a conclusion whether there was a case for grant of temporary injunction pending disposal of the appeal or not. He argued that the suit was for declaration of title of the respondent/plaintiff over the suit property. As the trial court has held that the execution of will was not free from suspicious circumstances for dismissing the suit, the first appellate court should have considered the evidence as also the findings of the trial court while deciding the application for grant of temporary injunction during pendency of the appeal. Instead, it is erroneously held by the Senior Civil Judge that the appellants have not disputed the testamentary capacity of Laxmanappa and since an order of temporary injunction was in force till disposal of the suit, the interest of the appellant would not be affected in any way if the order of temporary injunction is granted in the appeal also. Sri Madhusudhana Rao argued that the court below has thus committed an error in exercising discretionary power.

4. But Sri Vijaya Kumar argued that order of temporary injunction which was in force till disposal of the suit had been confirmed by the appellate court also. The respondent might have lost the suit but if he sought temporary injunction in the appeal preferred by him against the decree, and if the appellate court found it appropriate to continue the order of temporary injunction till disposal of the appeal, it was a wise and proper exercise of discretionary power in order to protect the respondent’s possession over the suit property. Reiterating the established principles to be considered for grant of temporary injunction, Sri Vijay Kumar argued that while deciding an appeal preferred against an order of temporary injunction the appellate court will normally not interfere with the trial court’s order if the discretionary power is properly exercised by the trial court. Even if another view is possible to be taken on facts, the appellate court will not interfere. With regard to argument of Sri Madhusudhana Rao that the appellate court should look into the evidence, Sri Vijay Kumar argued that it is left to the court whether to look into evidence or not, and in case this court were to come to conclusion that the first appellate court should have considered the evidence, the matter may be remanded to the court below for disposal of the application for temporary injunction afresh by referring to the evidence. In support of his argument, he has placed reliance on certain decisions which will be referred to later.

5. Therefore, from the arguments advanced by the learned counsel, the