L-^. o BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.I s,ng|, gengi, M. A. N0. - 5>5 QF 2011 MISC. APPEAL UNDER SECTION 104 R/W ORDER 43 RULE Kr) OF CODE OF CIVIL PROCEDURE, 1908 APPELLANTS ^y ^ ^?'v ^< ^7 w VERSUS RESPONDENTS l1,Shri Banke Bihari Infracom Pvt. Ltd. Through : Director Harvilas Agrawal S/o Shri Bholaprasad, aged about 42 years, R/o Chaitanyanagar, Dhimrapur Road, Raigarh, Tahsil & District Raigarh (C.G.) fDEFENDANT No. 21 2]Mukesh Tiwari S/o Kripashankar Tiwari, aged about 33 years, R/o Dugdha Dairy Road, Rajeev Nagar Kotra Road Raigarh, Tahsil & District Raigarh (C.G.) fDEFENDANT No. 31 3] Ajay Agrawal S/o Shri Rajkumar Agrawal, aged about 35 years, R/o Gandhiganj, Raigarh, Tahsil & District - Raigarh (C.G.) fDEFENDANT No. 41 \y Smt. Kaushilya Devi, W/o Late Mohanlal, aged about 55 years, 2. Lalit Rajput, S/o Late Mohanlal, aged about 30 years, 3. Vijay Rajput, S/o Late ^' Mohanlal, aged about 28 years, 4. Smt. Jayanti, D/o Late ^- ^' \^ <T Mohanlal, aged about 32 years, Smt. Seema, D/o Late Mohanlal, aged about 30 years, ,6. Daulatram S/o Rewachand, aged about 42 years, 7. Ashish @ Manish S/o Late ^i^N^ni ^&ohof^sS-,' Sl. No. 4 & 5 Through Special Power of Attorney Holder Vijay Rajput S/o Late Mohanlal Rajput, All R/o Sindhi Colony Raigarh, Tahsil 85 District - Raigarh (C.G.) [PLAINTIFFS] 8, Chetandas Rajput, S/o Late Rewachand Rajput, aged about 58 years, R/o Kaserpara, Raigarh, Tahsil & District - Raigarh (C.G.) [DEFENDANT No. 1] ). State of Chhattisgarh, Through : The Collector, Raigarh, District - Raigarh (C.G.) fDEFENDANT No^SI z^ fflGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra M.A.No. 55/2011 .^PPELLANTS 's^ Shri Banke Bihari Infracom Pvt. Ltd. and others Versus RESPONDENTS : Smt. KaushUya Devi and others Appearance: Shri S.K. Tiwari, counsel forthe appellants. Shri Sanjeev Agrawal, Panel Lawyer for the State/'respondent No.9. MISC. APPEAL UNDER SECTION 104 RAV ORDER 43 RULE 1 (r) OF CODE OF CIVIL PROCEDURE. 1908 QRAL ORDER (22.06.2011) Heard. (2) This is an appeal under Order 43 Rule 1 (r) ofCPC challenging the order passed by the trial court granting temporaty injunction in favour of the plaintiffs and directing the defendants including the appellants to not to interfere in the plaintiffs possession on the suit land. (3) Plaintiffs have filed the suit for a declaration that the sale-deed dated 30/11/2010 executed by defendantNo.l in favour ofdefendants No.2 to 4 be declared null and void and the said purchasers be restrained by permanent injunction to not to interfere in the plaintiffs possession on the suit land. According to the plaintiffs the suit land is jointly recorded in the revenue records in their name and in the name of defendant No.l and there has been no partition amongst them. < -\ ^ ^. '^'^ ^...^,.^^"I / ^ However, by fraud and concoction one letter ofconsent was shovvn to be signed by the plaintiffs and the same was used by the defeildant No.l to execute the sale-deed in favour of defendants No.2 to 4 whereas they have neither signed any such document nor have consented for alienating the propert)'- in favour of defendants No.2 to 4. (4) It is farther stated that the fraud was informed to the Superintendent of Police, however when no action was taken a complaint case under Section 200 of Cr.P.C. has been submitted before the ChiefJudicial Magistrate. (5) Applicatioti for temporaty injunction was also filed on the same allegations for restraining the defendants to not to mutate their name on the suit land and to not to interfere in the plaintiffs possession. (6) The trial court has found prima facie case, balance of convenience and irreparable loss to be existing in favour of plaintiff and has partly allowed the prayer for grant oftemporary injunction. (7) Leamed counsel for the appellants would submit that there is no averment in the plaint or in the application under Order 39 Rule 1 and 2 read with Section 151 ofCPC stating thatthe defendants have at any point of time threatened the plaintiffs to dispossess them. He would submit that in the absence of any such pleading the provision contained in Order 39 Rule 2 would not be attracted and the trial court has committed an eiTor in granting temporary' injunction. 1 /-^ ^ 3- (8) This Court has perused the plaint as well as the application under Order 39 Rule 1 and 2 ofCPC. ^: (9) In para 7 and 8 of the plaint it has been averred that fhe plaintiffs are in possession and because ofthe illegal and concocted sale-deed there is cloud on their title and the defendants are required to be restrained to interfere in their peace full possession. (10) Similar pleading has been made in the application for gmnt of temporaty injunction. (11) Admittedly, the appellants have moved an application before the concerned revenue officer for mutation of their name in the revenue records. (12) In the opinion of this Court for constming the allegations made by the plaintiff seeking temporary injunction the entire plaint and the application has to be read and understood in its entirety and mere moffassil phraseology would not come in the way of plaintiff. Even otherwise a prima facie case has been found in their favour. (13) Jurisdiction under Order 39 Rule 1 and 2 of CPC is one of discretion. In the present case, there are serious allegations against the defendants that they have committed fraud and have concocted signatures ofthe plaintiffs in the letter ofconsent and in the said back drop the trial court has exercised discretion in favour ofthe plaintiffs. (14) In the matter of Wander Ltd. and Another vs. Antox India ^ P. Ltd. reported in 1990 (Suppl.) SCC 727 the Hon'ble Supreme ,.^.- 1 i ^-^' ^- ^ Court has held thus in paragraph 14 ofthe report. "14. The appeals before the Division Bench were against the exercise ofdiscretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise ofdiscretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different fi-oni the one reached by the court below ifthe one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise ofdiscretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Josephl (1960) 3 SCR 713: (SCR 721) "... These principles are vvell established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton 1942 AC 130 '...the law as to the reversal by a court ofappeal ofan order made by ajudge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case." / "^... ..<; i^"^m -5- ^ ^. (15) When the present case is considered in the light ofthe law laid down by the Supreme Court in the matter of Wander Ltd- and Another vs. Antox India P. Ltd. (supra) it would be apparent that the trial court has exercised discretionaryjurisdiction keeping in vievv the entire factual matrix ofthe case. (16) It is not the case ofthe appellants at this stage that the plaintiffs in fact consented to the execution ofthe sale-deed. (17) In any case, the matter still requires to be thrashed out in the trial where both the parties would lead their respective evidence. (18) In the matter of Shankarlal Debiprasad Rathore Vs. State of M.P. and others 1978 M.P.L.J. 419 it has been held that vvhen plaintiffs have been able to raise a serious question to be tried^ temporaty injunction can be granted. (19) In vievv ofthe above, this Court is not inclined to admit this appeal. (20) Consequently, the appeal fails and is hereby dismissed. Sd//- Prashant Kumar Mishra Judge ^"