The Appellate Court cannot usurp the jurisdiction of trial court against the order granting temporary injunction: Rajasthan High Court

 on 09 02 2022 at 02:40:44 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPURS.B. Civil Miscellaneous Appeal No. 136 20221. Rudresh Jhunjhunwala Son Of Late Shri KrishanchandJhunjhunwala Aged About 40 Years R o 42 Penorama 203 Walkeshwar Road Mumbai 400006.2. Smt Suman W o Late Shri Krishnachand Jhunjhunwala Aged About 69 Years R o 42 Penorama 203 WalkeshwarRoad Mumbai 400006.3. Mu. Hemangini Jhunjhunwala D o Late Shri KrishnachandJhunjhunwala Aged About 43 Years R o 42 Penorama 203 Walkeshwar Road Mumbai 400006 Unjhunu.(Rajasthan.) AppellantsVersus1. Satish Kumar Son Of Shri Jagdish Prasad Aged About 41Years R o Luharu Road Town Pilani Police Station Pilani Tehsil Surajgarh District JhunjhunuRespondentsFor Appellant(s) : Ms. Sukriti Kasliwal through VCFor Respondent(s): HON BLE MR. JUSTICE SUDESH BANSALJudgment03 02 2022Reportable1.By way of this civil misc. appeal a challenge has been madeto the order dated 03.09.2021 whereby and whereunder anapplication filed under Order 39 Rules 1 & 2 CPC has been allowedand during the course of trial of the civil suit for specificperformance filed by respondent No.1 plaintiff the appellants [CMA 136 2022]defendants have been restrained not to transfer the disputed landand to maintain status quo until the decision of the civil suit.2.In the present appeal the consideration before this Court isthat when the trial court has exercised its discretionary andequitable jurisdiction to grant the temporary injunction in favourof plaintiff and against defendants should this Court interfere withthe order of temporary injunction passed by the trial court underits appellate jurisdiction 3.The appellants are defendant Nos.1 to 3 and respondentNo.1 is plaintiff and respondent Nos.2 & 3 are defendant Nos.4 &5 before the trial court. For clarity the parties shall be referredhereinafter with the same status as called before the trial court.4.The relevant facts of this case as culled out from the recordare that plaintiff filed a civil suit for specific performance of anagreement to sell dated 30.04.2014 along with an application fortemporary injunction in the year 2014 itself. The plaintiff hasrelied upon an agreement dated 30.04.2014 to contend that thedefendant No.1 for himself and being power of attorney holder fordefendant Nos.2 & 3 had agreed to sell the land of 0.49 hectare ofKhasra No.961 located at Village Chirawa District Jhunjhunu tohim against total sale consideration of Rs.56 30 000 . Plaintiffhas placed on record the agreement as also the special power ofattorney said to be given by defendant Nos.2 & 3 in favour ofdefendant No.1. As per agreement entire sale consideration hasbeen paid and the possession is delivered to the plaintiff. Theplaintiff averred that although he was assured by the defendantsto execute the registered sale deed however it transpired to himthat instead of making the sale deed in his favour the defendantsare going to sale their land to other person(s). In that backdrop of[CMA 136 2022]facts the plaintiff filed the present civil suit for specificperformance along with an application for temporary injunction.5.One of the relevant facts is also available on record that thedefendants have already executed a registered sale deed dated22.05.2014 for the area of 0.41 hectare of Khasra No.961 infavour of the plaintiff’s father namely Shri Jagdish Prasad Sharmaand one Shri Vinod Kumar Bhageria and that sale deed is inrelation to area of 0.41 hectare which is other part of land thanthe area of 0.49 hectare of Khasra No.961 agreed to be sold toplaintiff through the agreement in question dated 30.04.2014.6.Learned counsel for appellants has argued that the trial courthas committed serious illegality and perversity in granting theinjunction in the present case whereas the civil suit for specificperformance itself stand bad in law and is not liable to succeed onmerits therefore the plaintiff was not entitled for any temporaryjunction in his favour. She submits that the agreement in questiondated 30.04.2014 itself is a void document as it suffers fromuncertainty because the specifications and parameter of the landin question measuring 0.49 hectare of Khasra No.961 are absent as such by virtue of Section 29 of Indian Contract Act 1872 thisagreement be treated as void contract. Learned counsel for theappellants submits that the agreement in question is neitherregistered nor properly stamped therefore cannot be relied uponbefore the court of law. She argued that neither sale considerationwas paid by plaintiff nor any possession was handed over to himand the agreement in question is not a genuine and reliabledocument. She has further argued that apart from threedefendants their mother Smt. Shanti Devi is also co sharer for1 4 share in the subject land and she is not party in the present[CMA 136 2022]suit as also in the application for temporary injunction therefore for this reason also the suit is defective. Thus her submission isthat trial court fell in error while granting injunction and therefore the impugned order is liable to be set aside consequentially the application for temporary injunction deservesto be dismissed.7.Heard counsel for appellants and perused the impugnedorder dated 03.09.2021.8.A bare perusal of impugned order dated 03.09.2021 goes toshow that the trial court has considered the agreement to sell inquestion as also the special power of attorney of defendant No.1and after considering the respective pleadings of both the parties has reached to the conclusion that prima facie case stands infavour of plaintiff. In the impugned order the trial court hasclearly observed that the defendants have not denied theirsignatures either on the agreement in question or on the specialpower of attorney neither the defendants have alleged that theagreement to sell in question is a forged and fabricated documentnor have initiated any criminal proceedings against the plaintiff toprepare such documents falsely and fordgely. The trial court hasclearly observed that in the present case intricate and seriousquestions of fact and law are involved between the parties whichcan be adjudicated after recording of evidence of both the partiesduring the course of trial. Thus the trial court has found primafacie case in favour of plaintiff after appreciation of the respectivepleadings documents and other attending circumstances. Apartfrom the prima facie case the trial court has also independentlydealt with the points of balance of convenience and irreparable[CMA 136 2022]injury. In this way the order of trial court can be said to be a wellspeaking and reasoned order.9.This is also relevant to take note that apart from theagreement to sell in question the defendants have already sold apart of 0.41 hectare land of Khasra No.961 through registered saledeed dated 22.05.2014 in the name of plaintiff’s father ShriJagdish Prasad Sharma and Shri Vinod Kumar Bhageria. Although the counsel for appellants submits that they have initiatedseparate legal proceedings to cancel such sale deed. It may alsobe noted that defendants has not filed any separate application todeclare the agreement to sell in question as inadmissible and fornot consider the same for any purpose due to want of registrationand insufficient stamp duty. So such objection can be dealt withby trial court as and when such application would be filed by thedefendants. As far as objection as to whether the agreement inquestion is a void document or not is concerned the same maynot be examined and decided at this stage. In the opinion of thisCourt the issues raised by the counsel for appellant before thisCourt either disputing the factual issues or the legal issues areamenable to be adjudicated by the trial court during course of trialof suit at appropriate stage and it is not permissible in law tousurp the jurisdiction of trial court by the appellate court whileexercising it appellate jurisdiction against the order of grant oftemporary injunction. It is needless to reiterate that all thesefactual and legal issues are opened to be considered by the trialcourt during the course of trial and after recording the evidence ofparties. In the given facts of present case it cannot be said thatthe trial court has exercised discretion and equitable jurisdiction inan arbitrary and whimsical manner. The order impugned may not[CMA 136 2022]be said to be a perverse order or suffers from grave illegality orjurisdictional error moreover the view taken by the trial court isnot an impossible view.10.The principles of law governing application under Order 39Rules 1 & 2 CPC is no more res integra and it has settled in catenaof judgments that if the trial Court has exercised its discretion ingranting injunction jurisdiction of Appellate Court to interfere withthe order of trial Court is very limited. The interference in thetemporary injunction order passed by the trial Court can be madeonly in situation where the Appellate Court is satisfied that trialCourt has acted arbitrarily or contrary to law or that findings oftrial Court are perverse or capricious palpably incorrect and arewholly untenable. If view taken by trial Court is a possible view the same is not required to be interfered with by the AppellateCourt.11.In support of such proposition of law judgment passed bythis Court in case of The Rajasthan State Electricity Board VersusMool Chand Jangir338) as well as judgmentspassed by the Hon. Supreme Court in case of Wander Ltd. & Anr.Versus Antox India Pvt. Ltd.SCC 727) and Mohd.Mehtab Khan & Ors Versus Khushnuma Ibrahim Khan & Ors.(2013SC 221) may be referred.12.Further apart from prima facie case it is also required to beconsidered that what nature of loss or injury or prejudice would becaused to the party if he is restrained by way of temporaryinjunction during course of trial. In present case trial court hasdealt with this ingredient also and observed that balance ofconvenience tilts in favour of plaintiff and it is the plaintiff whomay suffer irreparable loss not the defendant if temporary[CMA 136 2022]injunction is not granted. The defendant could not make out acase that they would suffer any grave loss or injury or prejudiceby the injunction order passed by the trial court. 13.The Hon’ble Supreme Court in the case of MaharwalKhewaji TrustFaridkot versus Baldev Dass reportedin8 SCC 488] has propounded a principle of law inrelation to grant of temporary injunction under Order 39 Rules 1 &2 CPC that unless and until a case of irreparable loss or damage ismade out by a party to the suit the Court should not permit thenature of the property being changed which also includesalienation or transfer of the property which may lead to loss ordamage being caused to the party who may ultimately succeedand may further lead to multiplicity of proceedings. The saidprinciple has further been followed in the case of Dev Prakash &Anr. Versus Indra & Ors. reported in14 SCC 292]wherein the Hon’ble Supreme Court observed that it is the veryessence of the concept of temporary injunction and receivershipduring the pendency of a civil litigation involving any property is toprevent its threatened wastage damage and alienation by anyparty thereto to the immeasurable prejudice to the other side orto render the situation irreversible not only to impact upon theultimate decision but also to render the relief granted illusory. TheHon’ble Supreme Court observed that the judicial discretion has tobe disciplined by jurisprudential ethics and can by no meansconduct itself as an unruly horse.14.After discussion of factual and legal aspect in detail thisCourt is of considered view that this is not a fit case where theappellate court should exercise its power to interfere with theorder of temporary injunction passed by the trial court. Thus no[CMA 136 2022]interference is called for with the impugned order and accordinglythe appeal is hereby dismissed.15.All pending application(s) if any also stand(s) disposed of.16.There is no order as to costs.(SUDESH BANSAL) JSAURABH 6 

Summary: It is not permissible in law for the appellate court to usurp the territorial jurisdiction of trial court to grant temporary jurisdiction is upheld by the Jaipur Bench of the Rajasthan High Court through a single bench of Hon’ble Mr. Justice Sudesh Bansal in the case of Rudresh Jhunjhunwala and Others v. Satish Kumar and Others (Civil Miscellaneous Appeal No. 136/2022). Brief facts of the case are that the main contention before the is whether is it permissible in law for appellate court to override the territorial jurisdiction of trial court while granting temporary injunction. The case pertains to a land dispute wherein the defendants executed a sale deed with the plaintiffs for 0.41 hecter land for the consideration of Rs. 56,30,000/- and in the back drop of this deed defendant wants to sell the land to some other person(s). The plaintiffs filled a suit in trial court for specific performance of the sale deed and obtained a temporary injunction against sale of land to some other person. The defendants argued on the authenticity of the sale deed and claimed that it did not contain specifications and parameters of the land, and hence, is void under section 29 (Agreements Void of uncertainty) of the Indian Contract Act, 1872. Defendant argued that the sale deed was not registered or stamped and therefore its authenticity is inconclusive. The Court examined the interim order of the trial court and observed that the trial court prima facie held the case in favor of the plaintiffs as the defendants accepted the authenticity of their signatures on the sale deed and they did not allege forging of the same. Furthermore, the defendants have already registered a part of the disputed land in favor of the plaintiff’s father and their contention that this transfer is challenged in another application is irrelevant in the present case. Therefore the court held that the appellant’s contention on validity and authenticity of the sale deed cannot be examined at the present case and is to be decided by the trial court in its proceedings and “it is not permissible in law to usurp the jurisdiction of trial court by the appellate court … against the order of grant of temporary injunction.”