, [.. ^> IN THE HON'BLE HIGH COURT OF C.G. AT BILASPUR M. A. No. ^ of 2010 •^. .•^•-" APPELLANTS/ Plaintiffs ..?@ -J»v' ^' .^ Bs.^^ :1. Smt. Geeta, W/o Dilip Kumar Singhaniya, aged about 42 years, R/o Baradwar, Tahsil-Sakti, District-Janjgir-Champa (C.G.) 2. Smt. Santoshi, W/o Sunil Kumar Agrawal, aged about 28 years, R/o Guderwani, Tahsil-Lormi, District- Bilaspur(C.G.) 3. Smt. Laxmi, W/o Devarchan Kumar Agrawal, aged about 33 years, R/o Tahsil-Laykera, District-Jharsugada (Orrisa) RESPONDENTS/ Defendants VERSUS :1. 2. 9 Suresh Kumar Agrawal, S/o Prabhudayal, aged about 48 years, Sita Bai, W/o Late Prabhudayal, aged about 70 years, Both R/o Village-Jamgaon, Tahsil & District-Raigarh (C.G.) 3. M.S.P. Steel & Power Limited Jamgaon, through-Mr. Prashant Pandey, S/o S.N. Pandey, aged about 43 years, R/o Chankradhar Nagar, Raigarh, Tahsil & District- Raigarh (C.G.) 4. State of Chhattisgarh, through the Collector, Raigarh (C.G.) APPEAL UNDER ORDER 43 RULE 1 Cr) OF CIVIL PROCEDURE CODE 1908 } HIGH COURT OF CHHATTISGARH. BILASPUR SINGLEBENCH : HON'BLE SHRI PRASHANT KUMARMISHRA. J. M.A.NO. 71 of 2010 APPELLANTS Smt. Geeta and others. Versus RESPONDENTS Suresh Kumar Agrawat and others. Shri Raghvendra Pradhan, counsel for appellants. Shri Mahesh Kumar Mishra, counssS for respondsnte No. 1 & 2. Shri Sanjay Agrawai wfth Shri Sourabh Sharma ahd Shri Sudeep Agrawal, counsel for respondent No.3. Shri Sanjeev Agrawal, Panel Lawyer forthe State/rospondent No.4. ORALORDER (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 jnjunction has been rejected by the trial Court. (2) The dispute pertains to land bearing Khasra No. 1,4/1, 5/3 and 30 area 1.958 hectare situated at village Jamgaon, Revenue Circle, Tahsil and District - Raigarh. The suit tand belonged to one Prabhudayal, Father of defendant No.1 Suresh Kumar Agrawal. According to the plaintiff. after death of Prabhudayal, the plaintiff as well as defendant No.1 and 2 succeeded the property, however without their consent and concealing the arrangement, the defendants No. 1 & 2 have executed a sale deed in Tsivour of defendant No.3 on 07/07/2008. In the said sate-deed it was fraudulently mentioned that the plaintiffe have executed a power of attomey in favour of 'vendors. It was further stated that the defendant No.3 has started raising -^>^ '€^fv^i^1 ^^ ^teS^ ^— construction on the suit land and if the said construction is completed the plaintiffe' shall suffer irreparabte loss. (3) An application under Order 39 Rule 1 & 2 of C.P.C. was moved on similar pleadings. The defendant No.3 submitted its reply and stated that the defendants No. 1 & 2 are in collusion with the plaintiffe and that the present suit has been instituted in a malafkle manner. According to the said defendant, it has purchased the land after making payment of valuabte consideration and are bonafide purchaser. It was stated that the power of attorney prima facie bears the signature of the plaintiffs and the allegations made by the plainttffs are jn correct. (4) Learned trial Court has found that since the copy of the power of attorney is a part of the sale transaction and is availabte in the ofRce of Sub- Registrar as the same was produced at the time of execution of sale-deed, prima facie it cannot be disbelieved. The trial Court thus found that there is no prima facie case or balance of convenience in favour of the plaintiffe and that the plaintiffe are not going to suffer any irreparable loss. (5) In the matter of Wander Ltd. and Another vs. Antox India P. Ltd. reported in f990 (Suppl.) SCC 727 the Hon'ble Supreme Court has held thus in paragraph 14 ofthe report. "14- The appeals before the Division Bench were against the exercise of discretion by the Single Judge. !n such appeals, the 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 injunctjons. An appeai against 'exercise of discretion is said to be an appeal on principte. :^ -3- Appellate 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 it had considered the matter at the trial stage it would have come to a contrary 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. After referring to these principles Gajendragadkar, J. in Printefs (MysoiB) Private Lfe/. v. PoVnan Josephi (1960) 3 SCR 713: (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Chaffes Osenton & Co. v. Jhanaton 1942 AC 130 "...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difRculty that arises is due only to the application of well settled principtes in an individual case." The appellate judgment does not seem to defer to this principle." (6) The discretionary jurisdiction exercised by the triai Court does not appear to be suffering from any perversity or arbitrariness, therefore, the order passed by the trial Court needs no interference, however at the same time it is observed that any construction made by the defendant No.3 during pendency of the suit shall be subject to the final outcome of the suit. It witl also be in the ends ofjustice to direct the trial Court to dispose of the suit as early as possible and preferably within a period of four months from the date of presentation of certified copy of this order before the trial Court. (7) The appeal stands dismissed with the above observation. Sd/- Prashant Kumar Mishra Judge o ^