ORDER

Heard Sri. Mohana Chandra P., learned counsel for the petitioner and Sri. Jai Prakash Reddy, learned counsel for the caveator/respondent.

2. The appellants are defendants 1 to 4 in O.S.63/2020 on the file of Civil Judge and JMFC, Gudibande. The respondent is the plaintiff in the suit for permanent injunction in respect of 34 guntas of land including kharab of 4 guntas in Sy.No.2/2 of Machavalahalli Village, Kasaba Hobli, Gudibande Taluk, Chickballapur District. Along with the plaint, the respondent filed an application for temporary injunction under Order 39 Rules 1 and 2 CPC.

3. After hearing both sides, by order dated

13.4.2022, the trial court dismissed I.A.1 under Order 39 Rules 1 and 2 CPC. For dismissing the said application, the trial court assigns the reasons that though the plaintiff claims to have purchased the property from Kasturi Rangachar through sale deed 31.7.2013, the revenue records still continue in the name of the vendor and the plaintiff approached the court with unclean hands. The trial court is of the opinion that there is no proof with regard to specific allegation that the defendant undertook construction of the building towards Southern side of the suit property. To give this finding, the trial court further held that the Southern boundary of the suit property was shown as Gramatana land. If really the construction was undertaken in the southern portion of the suit property, the Southern boundary should have been shown as the plaintiff’s remaining property. In this view, the trial court found that the plaintiff failed to make out a prima facie case for grant of temporary injunction. Ultimately the trial court dismissed the application.

4. When the plaintiff appealed to the court of Senior Civil Judge, the order of the trial court was reversed and temporary injunction was granted by judgment dated 6.1.2023. If the judgment of the appellate court is read what appears is that instead of examining whether the findings of the trial court are correct or not, it has substituted its own reasons for grant of temporary injunction. The appellate court has forgotten the fact that it was deciding an appeal against the order of refusing to grant an order of temporary injunction and therefore all that was required was to assess the materials placed before the appellate court and to give a finding whether the trial court was justified in rejecting the temporary injunction. The order appears as if the temporary injunction has been granted for the first time in the appeal which is not permitted. Even otherwise it may be stated that the reasons given by the appellate court may be a second opinion that can be formed on the basis of materials. It is settled principle of law that if two views are possible and if the trial court is found to have exercised discretion by taking one view, the appellate court should not interfere with the view of the trial court even though other view is possible to be taken. Thus seen, the judgment of the appellate court suffers from illegality. It should not have interfered with the discretionary power properly exercised by the trial court. Therefore writ petition succeeds. Impugned order in MA.No.18/2022 is set aside. The order of the trial court on I.A.1 is restored.