Civil Revision No.1392 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1392 of 2011(O&M) Date of Decision: February 28, 2011 Surinder Pal Singh .....Petitioner v. Joginder Singh .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Swaran Singh, Sr.Advocate with Mr.A.S.Parmar, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for quashing/setting aside the impugned order dated 10.8.2010, passed by learned lower appellate Court, Annexure P2, vide which order dated 28.4.2006, passed by learned trial Court, Annexure P1, was set aside by accepting the appeal. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned orders passed by learned Courts below. Facts relevant for the decision of present revision petition are that admittedly respondent-defendant mortgaged land measuring 18 kanals 17 marlas as described in the heading of the plaint with present petitioner- plaintiff for mortgaged money of Rs.31,000/-, vide registered mortgage deed dated 14.6.1989. It has also not been disputed that respondent- defendant filed an application for redemption of said mortgage before the competent authority. Learned Sub Divisional Magistrate-cum-Collector, Hoshiarpur, vide his order dated 23.2.2006 allowed the application for redemption. Before learned Collector, the plea was taken by present petitioner that lateron some other amount was given by him to defendant, i.e., a sum of Rs.1,28,000/-, as a security for the same mortgaged property. Civil Revision No.1392 of 2011(O&M) -2- However, the plea was not accepted by learned Collector. The application was allowed by the Collector vide order dated 23.2.2006 and the land in dispute was ordered to be redeemed on payment of Rs.31,000/-. There is no dispute that the said amount was deposited by respondent-defendant in view of the said order. Execution petition was filed by respondent- defendant for taking possession pursuance to that order and the same is pending before the competent Court. Learned trial Court granted ad interim injunction in favour of petitioner-plaintiff restraining respondent-defendant from dispossessing him from the property in dispute, however, on appeal filed by respondent-defendant, the said order was reversed and the application for ad interim injunction order under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure filed by present petitioner-plaintiff was dismissed, by observing as under:- “13. Defendant has made his full signatures i.e. “Joginder Singh” on the original mortgage deed dated 14.6.1989. the pronote and the two agreements bear signatures of defendant as “J Singh.” A bare look at the pronote and the two agreements shows that these documents are not signed by the defendant. It appears that plaintiffs are out to retain possession of the suit land and to resist delivery of possession of the suit land to the defendant. Plaintiff is trying to take advantage of the fact that he is in possession of the suit land. Plaintiff could pursue his independent remedy on the basis of pronote and two agreements, if any, available to him under law. The amounts alleged to be borrowed by the defendant after 14.6.1989 cannot form part of mortgage money. 14. The learned trial Court granted ad-inter injunction solely on the ground that plaintiff has a right to challenge the order dated 23.2.2006 by way of filing of a separate suit and if he is dispossessed, he will suffer irreparable loss. In the opinion of this Court, no prima facie case was made out in favour of the plaintiff for the reasons already stated above. The balance of convenience also did not lie in favour of plaintiff. Plaintiff is not going to suffer any irreparable loss Civil Revision No.1392 of 2011(O&M) -3- or injury, if he is dispossessed during the pendency of the suit. If plaintiff otherwise succeeds in the suit, he can always ask for restoration of possession. The mortgage money of Rs.31,000.00 stands already deposited by defendant. The order of redemption has been passed in his favour and his application for delivery of possession is pending before competent authority. Defendant has been deprived of his right to come into possession of land owned by him since the year 2006.” It has been vehemently contended by learned counsel for the petitioner-plaintiff that learned first appellate court should not interfere in the discretion exercised by the court of first instance and substitute its own discretion. He has also placed reliance upon Wander Ltd. and another v. Antox India P.Ltd. 1990 (Supp) Supreme Court Cases 727. So far as legal proposition held in the aforementioned judgment is concerned, there is no dispute. However, Hon'ble Apex Court has observed that appellate Court will not interfere with the exercise of discretion 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. Law is well settled that at this stage, prima facie case, balance of convenience and the fact as to whether irreparable loss would be caused to the respondent-plaintiff, if ad interim injunction is not granted in his favour, are to be seen. In the present case, as already discussed above, respondent- defendant was seeking possession of the property in dispute as per law. He had filed petition for redemption of suit property before the competent authority, in which order was passed in his favour and he filed execution petition. Mortgaged money is only Rs.31,000/-. Hence, it has been rightly observed by learned appellate Court that petitioner-plaintiff could pursue his independent remedy on the basis of pronote and two agreements, if any, available to him under the law and that the amount alleged to have been borrowed by respondent after 14.6.1989, i.e., after registration of mortgage Civil Revision No.1392 of 2011(O&M) -4- deed, cannot form part of mortgaged money in view of these unregistered documents. As the order has been passed by learned trial Court without any basis as there was no prima facie case in favour of petitioner-plaintiff, hence, the order can be said to have been passed arbitrarily by ignoring the settled principles of law regulating grant or refusal of ad interim injunction. Therefore, it cannot be said that any illegality or material irregularity has been committed by learned appellate Court in reversing the order passed by learned trial Court dismissing the application for grant of ad interim injunction order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. However, it is made clear that nothing observed herein shall be construed to have any bearing on the decision of this case on merit by learned trial Court. 28.2.2011 (Ram Chand Gupta) meenu Judge