IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No.153 of 2006. Date of decision : 04.07.2008. Mehar Singh ….Petitioner Versus Sumer Singh & Others ….Respondents Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the petitioner: Mr.G.D. Verma, Senior Advocate with M/s. Bhuvnesh Sharma and Romesh Verma, Advocates. For the respondent: Mr.N.K. Thakur, Advocate. Dev Darshan Sud, J. This is the defendants petition against the judgment of the learned District Judge, Hamirpur passed in appeal against the order in an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure refusing interim relief to the plaintiff. By an order dated 13.12.2005 the learned trial Court, dismissed the application preferred by the plaintiff for interim relief on the ground that the allegation made in the application that sale deed is sham and fictitious is yet to be proved during the trial of the case. The learned Court also observed that two sale deeds as set up, one by the plaintiff and the other by the defendant, prima facie appear to 1 Whether Reporters of Local Papers are allowed to see the judgment? 2 be genuine documents. While considering the respective contention of the parties, the learned trial Court concluded that the applicant-plaintiff had failed to show what is the irreparable loss which is likely to be caused if this application is not allowed. The appellate Court unfortunately held a mini trial holding that the sale deed set up by the defendant is liable to be declared wrong, illegal and void and that its registration was of no consequence conferring any right, title and interest on the defendant. It is by now well settled that while considering the case under Order 39 Rule 1 and 2, the Court should not hold a mini trial, but should be concerned with ascertaining whether a prima facie case exists or not. (See:Anand Prasand Agarwalla vs. Tarkeshwar Prasad and Others, (2001)5 SCC 568). A reasoned order has to be passed which includes within its ambit the determination of the points raised but that does not confer any right either on the trial Court or on the appellate Court to adjudicate on a fact which otherwise is to be established on a settled issue in the trial by adducing evidence in accordance with law. Surely, the appellate Court should have been alive to this situation rather than undertaking an exercise of holding a full-fledged trial and declaring the sale deed produced by the defendant as being of no consequence despite its 3 registration. This course of conduct is impermissible and is not the jurisdiction of the Courts below. It is also true that for ascertaining a prima facie case for grant of interim injunction the Court has to consider in some degree the merits of the case. But such determination is limited only to this aspect and no more. In Kanshi Ram vs. Bansi Lal, AIR 1977 HP 61, this Court held that any opinion expressed by the Court, whether it be of the trial Court or an appellate Court or revisional Court, cannot in law preclude the trial Court from considering the issue afresh when deciding the suit and for that purpose it must have regard to all the material then before it in the form of evidence etc. I find from the judgment, that the learned appellate Court has practically concluded the entire trial and left very little for the trial Court to determine. In the facts and circumstances, this petition is accepted. The order passed by the appellate court is quashed and set aside. A direction is issued to the learned trial Court to proceed with the trial with expedition. It will not be influenced by the determination made by the appellate Court on the merits of the rival contention raised by the parties. There shall be no order as to costs. July 4, 2008. (Dev Darshan Sud) (aks) Judge.