A party must establish a prima facie case for interim relief under Order 39 Rule 1 & 2 CPC.

Order

23/09/2025

1. The present civil misc appeal has been filed by the appellant with the following reliefs:-

“It is, therefore, most respectfully prayed that this appeal may kindly be allowed and the order dated 03.11.2022 passed by the Learned Additional District Judge No. 7, Jodhpur Metropolitan, Jodhpur may be quashed and set aside and the application under Order 39 Rule 1 & 2 CPC preferred by the appellant may kindly be allowed.

Any other order/relief which your Lordship may deem just and proper in the facts and circumstances of the case, may also kindly be issued in favor of the appellant.”

2. Brief facts of the case are that the appellant filed a civil suit for declaration and permanent injunction concerning plots No. 7 and 8, which he used as a godown for his tent business. In 2014, to expand his business, the appellant borrowed Rs. 2 lakhs from respondent No.1, who took the property papers of the plots as security and was given a general power of attorney, an agreement to sell, and a will related to plot No.8. In 2021, the appellant offered to repay the loan in full and requested the return of the documents and cancellation of the power of attorney. However, respondent No.1 refused to do the same. The appellant then issued a notice on 26.03.2021 revoking the power of attorney, but respondent No.1 still did not return the documents. Subsequently, on 22.02.2022, respondent No.1 sold the plots to respondent No.2, his daughter, and falsely claimed in an affidavit that the power of attorney had not been revoked. The appellant challenged this sale deed as void ab initio and sought a declaration to that effect, along with an injunction to prevent the respondents from interfering with his possession. After hearing the parties, the learned trial court vide order dated 03.11.2022 has dismissed the appellant’s application for temporary injunction. Hence, the present appeal.

3. At the very outset, learned counsel for the respondents respectfully submits that the issue raised in the present writ petition is squarely covered by the decision of a Co-ordinate Bench of this Court rendered in the case of Suraj Kumar vs. Khem Singh & Anr., SBCWP No.17059/2022, decided on 21.12.2022, wherein identical controversy was involved and in that case, the writ petition was unambiguously dismissed, and since the facts and legal position in the present case are pari materia with those in Suraj Kumar (supra), judicial discipline requires that the same view be adopted here. He submits that the present writ petition also deserves to be dismissed accordingly in terms of the binding precedent laid down by the Co-ordinate Bench. The relevant portion of said order is reproduced hereunder:-

“The trial court without going into the material available on record, specially the fact that agreement to sell pertaining to the suit property, wherein, full consideration had already been received, was in existence, existence thereof was not denied in replication by the plaintiff, the document also indicated handing over of the possession and it was the specific plea of the defendants that besides the fact that they are in possession of the suit property, they have also raised construction and, therefore, the trial court by referring to a singular fact regarding agreement to sell being of Rs.6,50,000/- and sale deed by defendant no. 1 in favour of defendant no. 2, his daughter, at Rs.4 lakhs only found prima facie case. The appellate court besides taking into consideration the aspect of execution of sale deed at a lower consideration, found that other overwhelming evidence clearly indicated that the defendants besides payment of full consideration to the plaintiff were in possession of the suit property and that no relief of possession has been so