^-^ •4g- IILTHE HIGH COURT OF CHHATTISHGARH ATBILASPUR ^Q\\ M.A. NO. ^ /^^\ W Benct APPELLANTS ^(Plaintiffs) ^ ^ ^ ".-^.'^ .»'. s/y, w/ ^ <^- <f RESPONDENTS (Defendants) Rameshwar Pandey Son of Rak-esh Kumar Pandey, aged 31 years, R/o. 7, Mohannagar, Dhamdha Road, Durg, District Durg (C.G.), Subhash Surana son of Khemchand Surana, aged about 32 years, R/o. Near Farishta Complex t8^e-Premji Shah,^ Durg(C.G.), VERSUS 1. ^ Madhu Yadav Son of Mehattar Yadav, aged 45 years, R/o. Near Uttam Sycle Stores, Ajad Chowk, Kasaridih, District Durg (C.G.), :1!W^:- •^^•^:^il : IM:. l:Si'ft§'- 9:'. ^: State of Chhattisgarh, Through : The Collector, Durg (C.G.), MISCELLANEOUS APPEAL UNDER ORDER 43 RULE 1(^1 OF THE CODE OF CIVIL PROCEDURE ^i^ ^„^-J^t^L: :N^; ^£^^^2^ mGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra M.A, No. 46/2011 APPELLANTS RESPONDENTS Rameshwar Pandey and another Versus Madhu Yadav and another Appearance: Smt. Fouzia Mirza, counsel for the appellants. Shri Sanjeev Agrawal, Panel Lawyer for the State/respondent No.2. MISCELLANEOUS APPEAL UNDER ORDER 43 RULE 1 (r) OF THE CODE OF CIVIL PROCEDURE ORALORDER (13.05.2011) This is an appeal under Order 43 Rule 1 (r) of CPC whereby the trial court has dismissed the appellants/plaintiffs application under Order 39 Rule 1 and 2 of CPC and has thereby refused to grant of temporaty injunction to restmin the defendant No. 1 to alienate the suit properts7 during the pendency ofthe suit. (2) The appellant has filed a suit for specific perfonnance of contmct dated 16/09/2008 in relation to land admeasuring 0.160 hectare bearing khasra No.707/1 situated at village Kasaridih, Durg. The defendant has denied to have executed the agreement or the subsequent receipt on 16/02/2009. (3) The trial court has considered the three pillars ofthe principles for grant oftemporary injunction and has held thatthere is 110 prima facie case or balance ofconvenience in favour of plaintiff and he is ^^f^ not likely to suffer irreparable loss if the temporary injunction is refused. (4) In the matter of Wander Ltd. and aiiother Vs. Antox India P. Ltd. reported in 1990 (Supp) SCC 727 the following has been laid down in paragraph 14 ofthe report: "14. The appeals before the Division Bench were against the exercise of discretion 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 interlocutoiy 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 from 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 contraiy 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 of discretion. Aflfcer referring tothese principles Gajendragadkar, J. in Printers (\fysore) Private Ltd. v. PothanJoseph (1960) 3 SCR 713 (SCR 721) "....These principles are well established, but as has been obsen/'ed by Viscount Simon in Charles Osenton & Co. v. Jhanaton 1942 AC 130 '...the law as to the ..^2%." :^ ^--<"^ i. '^... \.,-:w--" ^ ""^^:^^^' 3- 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 ofwell settled principles in an individual case'." The appellate judgment does not seem to defer to this principle. (5) In the present case also the trial court has passed the impugned order in its discretionaryjurisdictioa and the findings recorded by the trial court does not appear to be perverse or arbitrary. (6) Even otherwise, any alienation during pendency of the suit shall be hit bydoctrine of lis pendefis and in case the land is alienated the appellants shall be at liberty to array the said purchaser and seek fiirther declaration for that the sale deed is not binding on the plaintiff. (7) With the above observation, the instant appeal is dismissed. Sd//- prashantKumarMishra Judge ^A-