1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR APPEAL FROM ORDER NO: 46/2007 (Shri Chintaman Ganpatrao Tiple and others vs. Jugal Khemchand Agrawal) ---------------------------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions and Registrar's orders. .................................................................................................................................................................. CORAM: B.R. GAVAI , J. DATED: 28TH JANUARY, 2008. *** Heard Mr. S.D. Deshpande, learned counsel for appellants and Mr. M. Shareef, for Respondent. 2. By means of this appeal, the appellants challenge the order passed by learned 4th Joint Civil Judge J.D. Nagpur dated 4th Oct. 2006 (below Exh.5 ) in Special Civil Suit No.1033/2005, thereby allowing the application of the respondent-plaintiff for temporary injunction. 3. The Respondent has filed SCS No. 1033/2005 for specific performance of agreement dated 18th June 2003. Along with the suit, an application for temporary injunction under O. 39 R. 1 and 2 of Civil Procedure Code also came to be filed. The same is allowed vide which learned trial Court has restrained 2 present appellants from creating third party interest in the suit property. Being aggrieved thereby the present appeal is filed. 4. Learned counsel for appellants Mr.S.D. Deshpande submits that the plaintiff relies on two agreements. He submits that in so far as the first agreement is concerned, the appellant – Vithabai is the party to the agreement ; whereas in subsequent agreement dated 18th June 2003 she is not a party. He, therefore, submits that an order restraining Smt. Vithabai who also has share in the suit property, is not sustainable in law. Her further submits that the suit itself is not tenable in so far as it has been filed by one Ramkisan Chaurasiya on the basis of power of attorney by plaintiff. He submits that since a specific power to file a suit has not been given under the said power of attorney, the power of attorney is itself bad. He further submits that the transaction is for money lending and the same has not been considered by the learned trial Court. 5. Shri Shareef, learned counsel appearing on behalf of the respondent/plaintiff submits that since the trial Court by a well-reasoned order has granted an order of injunction, no interference is called for by this Court. 3 6. The scope in an appeal against order under Order 43 R.1 is limited. Unless it is found that the view taken by learned trial Court is not possible view, it is not permissible for this Court to take another view because it is found that another view is a better one. Learned Trial Court, upon appreciation of material on record, has found that the petitioners/ defendants have signed the agreement in the presence of Panchas and that the plaintiff has parted with a substantial amount of money. It has been therefore, found that the plaintiff has made out a prima facie case and the principle of balance of convenience also lies in his favour. 7. The question regarding the tenability of the suit and whether the transaction is a money lending transaction or not, would be gone into by the learned trial Court only after the trial is held. At this stage, it cannot be said that the view taken by trial Court that the plaintiff has made out a prima facie case and that the test of balance of convenience and irreparable injury are in favour of the plaintiff, is an impossible view. In that view of the matter, no interference is warranted in the well-reasoned order passed by the Trial Court. The appeal is, therefore, dismissed. However, taking into consideration the facts and circumstances of the case and further that there is a restraint order operating against 4 the appellants, this Court directs the learned trial Judge to dispose of the suit as expeditiously as possible and in any case, within nine months from today. JUDGE sahare