G^'f'!'?1?'^ (P Sntfa BencK IN THE HON'BLE HI6H COURT OF CHHATTESfiARH AT BILASPUR fC.e.) M.A.No. UL3 of 2011 APPELLANTS/ Pjaintiffs ^.^// 1 -^^y A s^/y^^' A y /^' •5e'^? / ^/y :1, Shashi Prakash, aged about 37 years, S/o Purushottam, Occupation-Business, Caste- Bramhan 2< Vinod Kumar, S/o Pyarelal, aged about 35 years, Occupdtion- Business, Caste-Kalar, Both R/o Sarkanda, Bilaspur, Tahsil & District-Bilaspur (C.fc.j VERSUS RESPONDENTS/ .Defendants 1. 2, Arun Kumar Pandey, aged about 38 years, S/o Damodar Prasad, Occupation-Transporter, R/o In front of Family Planning Office, Sarkanda, Bilaspur, Tahsil & bistrict-Bilaspur (C.G.) Vijay Tiwari, S/o Dr. R.K. Tiwari, aged about 32 years, Occupation- Property Dealer, R/o V'poba Nagar, Bilaspur, Tahsil <& District- Bilaspur (C.6.) MISCELLANEOUS APPEAL UNDER ORDER 43 RULE 1 fr) OF CIVIL PROCE&URE CODE 1908 HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH : HON'BLE SHRI PRASHANT KUMAR MISHRA. J, MA.No. 49of2011 APPELLANTS Shashi Prakash and another. Versus RESPONDENTS Arun Kumar Pandey and another. Shri Ratnesh Kumar Agrawal. counset for appetlants. ORAL ORDER (13/05/2011) Following oral order of the Court was passed by Prashant Kumar Mishra. J. This appeal under Order 43 Rule 1 (r) of C.P.C. has been preferred by /the plaintiffs whose application for grant of temporary injunction has been rejected by the trial Court. (2) The plaintiffe hav®preferred the suit for specific performance of contract. In his application under Order 39 Rule 1 & 2 of C.P.C. it was stated that if the defendante succeed in alienating the property during pendency of the suit, the plaintiffe shall suffer irreparable toss and there shall be multiplicity of litigation. 1. (3) Learned trial Court has discussed the three pillars/principles regarding grant oftemporary injunction and has held that the plaintiffs have faited to prove the Driroa facie case and balance of convenience in their favour and are not likely to suffer irreparable loss in the event of temporary injunction is notgranted. (4) This Court has perused the impugned order and document annexed fwith the writ petition. The defendant No.1, in reply to the ptaintiffe prayer for ^ -A grant of temporary injunction, has stated that the plaintiff No.2 stood guarantor in his favour when he obtained loan from Shriram Finance ^y_ ^^ Company/for the said purpose the defendant No.1 obtained the Revenue Paper/Rin Pustika and also obtained his signatures on blank stamp paper. The defendant No.1 bonafidely believed the plaintifF No.2 and put his signature, however he has not executed any agreement to sale in favour of plaintifis. (5) Thus the effect of the averments made by the defendant No.1 is that subject agreement has been fraudulently obtained from him by misrepresentation and that he never intended to sale the property to the plaintiffe. (6) In the matter of Wander Ltd. and Another vs. Antox Inflia P. Ltd. reported in f990 fSuppU SCC 727 the Hon'ble Supreme Court has hetd thus 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 appeltate court will not interfere with the exercise of discretion of the court of first instance and subsUtute ite own discretion except where the discretion has been shown to have i been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled princlples of law regulating grant or refusal of interlocutory injunctions. An appeal agalnst exercise of discretion is said to be an appeal on principle. ,Appetlate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the 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 "rt had considered the matter at Uie trial stage it would hdve come to a contrary conclusion. If ttie discretion has ^ ^ (fe, \... <^ i? s,...*is®a^% 'sssKsys si "sys'f" ~f y ''W.t »».- Xa!fu' '""•Eswssf' -s 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. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Po^ian Josephl (1960) 3 SCR 713: (SCR 721) "... TRese principles are well established, but as has been observed by Viscount Simon in Chartes Osenton & Co. v. Jhanaton 1942 AC 1 3Ct '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretton is well established, and any difficulty thatarises is due oniy to the application of well settled principtes in an indh/idual case." The appellate judgment does not seem to defer to this principle." (7) On due consideration, this Court is of the opinton that the findings recorded by the trial Court w'rth regard to prima facie case, balance of convenience and irreparable loss do not suffer any perversity or arbitrariness. Eveh otherwise, if the defendant succeeds in alienating the property during pendency of the suit, the same shall be hit by doctrine of lis pendens and ttie plaintifF shall ahrays be at liberty to array the purchaser and seek a declaration that the subsequent sale-deed is not bindir®on the plaintiffe. (8) With the above observation, the instant appeal is dismissed. Sd/- Prashant Kumar Mishra Judge t-^ ^s^^^.^ :";%?s v' -s'ss.