1989 Supreme(MP) 556

IN THE HIGH COURT OF MADHYA PRADESH
R.C. LAHOTI, J.
Laturia - Appellant
Versus
Shyam Babu - Respondent
M. A. No. 24 of 1889 (G)
Decided on 27-11-1989

Headnote:Civil Procedure Code, 1908 – O. 39, R. 1 and 2 – application for temporary injunction – whole material on record should be considered while passing orders thereon.

        Short Note

       1. The plaintiff/appellant is aggrieved by the impugned order whereby his application for grant of a temporary injunction has been rejected while the application filed by the defendant/respondent No.1, has been allowed restraining the plaintiff from interfering with the possession of the defendant over the suit land.

       2. The suit property is land Survey No. 563, area 3.710 Hectares situated at village Magroda of District Guna. The plaintiff, aged 70 years, is said to have executed a registered deed of sale alienating the suit property in favour of the defendant on 22 – 6 – 88. The plaintiff alleges the document to be an outcome of fraud and misrepresentation played by the defendant on him while the defendant supports the transaction and relied on it. The plaintiff alleges that despite the document, the land continued to be in his possession while according to the defendant he was inducted in possession and continues to enjoy the land.

       3. Held: The learned counsel for the appellant has made two short but substantial submissions. Firstly, he submitted that the impugned order does not show consideration by the trial Court of all the material available on record and hence the order is vitiated. Secondly, he submitted that in a suit by the plaintiff, the defendant could not have been granted an injunction, which aspect of the case was not at all dealt with by the trial Court.

       4. A perusal of the impugned order indicates that the trial Court concentrated on consideration of the sale – deed dated 22 – 6 – 88. It considered that the document being a registered document containing recital as to payment of consideration and delivery of possession there under it raised a rebuttal presumption in favour of the defendant. The trial Court was also impressed by the facts that the attesting witnesses testified on affidavits the execution of the document and the endorsement made by the registration officer belied prima facie the case of the plaintiff. A put from the sale• deed there Were other documents available on record including the Khasra entry but such other documents do not find even a reference in the impugned order. The affidavits have been referred but without any critical analysis and appreciation thereof.

       5. In Vadivel Mudaliar and another v. Pachiannu Gounder (AIR 1974 Mad.87) it has been held:

       "In the matter of granting temporary injunction it is the duty of the Court to take into consideration affidavits and relevant documents before it records a finding. Taking into consideration the documents does not mean merely referring to the same in the judgment but there must be some discussion about them before any conclusion is arrived at. Unfortunately, the Courts below have not adverted to these documents, though not in detail at least prima facie, except referring them in the judgments. This has completely vitiated the orders of the Courts below, which, in my opinion, is a material irregularity, and has to be taken that the Courts below have not exercised their jurisdiction vested in them by law."

       6. I find myself in agreement with the abovesaid view, for it is nothing but a reiteration of the nature of duty cast on a Court of law and the manner of its discharge.

       7. For the above said reasons, the impugned order cannot be sustained. It is set aside. The case is remanded to the trial Court who shall rehear the parties and dispose of the prayer for grant of injunction afresh taking care to Consider the entire relevant material available on record consistently with the observations made hereinabove. The trial Court shall also examine the worth of legal objection raised by the counsel for the plaintiff appellant as to whether the defendant's application for grant of temporary injunction would at all be open for consideration in the facts of the case. AIR 1974 Mad. 87 relied on. Appeal allowed.