1 S.B.CIVIL MISC. APPEAL NO.2659/2007 Smt. Padma Vyas & Anr. v. Shri Kishan Kumar & Anr. Date of Judgment :: 28th January, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Mahesh Thanvi, for the appellants. Mr. Anil Vyas, for the respondents. .... The appellant plaintiffs preferred a suit to declare the decree dated 22.1.1996 passed by learned Civil Judge (SD), Bikaner in Civil Original Case No.73/93 void and also to set aside the execution proceedings initiated in pursuant to the decree referred above. An application under Order XXXIX Rule 1 and 2 Code of Civil Procedure was also filed seeking a temporary injunction against the defendants not to dispossess the plaintiffs from the disputed premises and also not to take any action injurious to civil rights of the plaintiffs. As per the appellants the disputed premises was earlier an orchard and the same was used by them since their ancestors time. They constructed a two storied house somewhere during the period from 1970-75 and were living there. Defendant Kishan Kumar Mohta by hatching a conspiracy with Himmat Singh 2 Acharya (maternal grand father of plaintiff Gopal Vyas) and by impleading him as a defendant filed a suit No.73/93 for obtaining possession of the disputed house and mesne profit based on a false patta alleged to be issued in favour of Shri Chhotu Lal (grand father of Himmat Singh). As per the plaintiffs, the suit was decreed on 22.1.1996 and the decree aforesaid was obtained by Kishan Kumar Mohta by misleading the court and by hatching a conspiracy. Learned Additional District Judge No.2, Bikaner by his order dated 22.11.2007, after hearing the parties, rejected the application under Order XXXIX Rule 1 and 2 Code of Civil Procedure by holding that the applicant appellant failed to make out any prima facie case and also that no balance of convenience is in favour of granting temporary injunction. The trial court also held that no irreparable injury shall be caused to the applicant appellant if the temporary injunction as prayed is not granted. While assailing validity of the order dated 22.11.2007 the contention of counsel for the appellants is that the appellant plaintiffs are in possession of the disputed premises since 1970 and if they be dispossessed from the disputed house, the same shall certainly cause an irreparable injury to them and adversely effect their civil rights. 3 Per contra, it is stated by counsel for the respondent defendants that as a matter of fact the possession of the appellants over the premises in question is being grand children of Himmat Singh Acharya. It is further stated that in earlier suit mother of appellant plaintiffs was party to the proceedings and also that in execution proceedings certain objections were raised and those stood rejected by Civil Judge on 16.1.2003 and an appeal filed against the order dated 16.1.2003 was also dismissed by Additional District Judge No.2 on 27.9.2007. According to counsel for the respondents the present suit and also all ancillary proceedings including the present appeal is nothing but an effort to frustrate the execution proceedings initiated for execution of decree granted in favour of Kishan Kumar Mohta. I have considered the arguments advanced, examined the order impugned and the record available. Learned Additional District Judge by order impugned has considered all aspects of the matter and gave specific finding that no prima facie case is made out in favour of the plaintiffs. The finding of the trial court is based on cogent reasons with emphasis that possession over the premises in question by plaintiffs is because of Smt. Bhanwari Devi and Shri 4 Himmat Singh against whom a decree of dispossession was already granted earlier. It is well settled that first appellate court should be quite slow in interfering with the orders passed by the trial court. The interference with the order passed by the trial court exercising its discretion in granting/refusing temporary injunction may be made only if the trial court acted arbitrarily, capriciously or passed an order perverse or if the order is contrary to the settled preposition of law. In the instant matter learned counsel for the appellant plaintiffs failed to point out any perverseness, arbitrariness or capricious action with the order impugned, thus, no case is made out for interference of this Court. The appeal, therefore, stands dismissed. ( GOVIND MATHUR ),J. Kkm/ps.