Rajesh Pinjanl vs RESPONDENTS

Srichand Pinjani, aged about 54 ye.ars, Vijay Enterprises, Old Bus Stand, Dhamtari, District Dhamtari. 2 Suresh Pinjani, son of Late Srichand Pinjani, aged about 50 years, Vijay Watch Co., Old Bus Stand, Dhamtari, District Dhamtari. Defendant No.2 & 3 ^,.- Smt. Ganga Bai, widow of Late Srichand Pinjani, aged about 75 years, through Rajesh -nl<X Pinjani, Vijay Electronics ' -V (wrongly 'Electronics'), mentioned Near Sindh Cycle Store, M.6. Road, Raipur, District Raipur (C6)

4. State of Chhattisgarh, through the Collector, Dhamtar'i. APPEAL UN&ER ORDER 43~RULE l (r) OF THE CO&E OF CIVIL PROCE&URE. 1908 .^:&r ~~^ Wi ^s;?^ ^ ^' HIQH COURT OF CHHATTJSGARH AT BILASPUR Singte Bench: Hon'bte Shri Justice Sanjay K. Agrawal ^" Misc. Aopeal No. 55 (rf 2013 APPELLANT (DefendantNo.1) Rajesh Pinjanl Versus RESPONDENTS (Plaintiffs & Defendants No. 2 & 3) Mohan Pinjani & others. APPEAL UNDERORDER43 RULE IfrtOF THE CIVIL PROCbURECODE. 1908 APpearance of ttie counsel: t Shri B.P. Sharma, counset for the appellant. Shri Kunal Das, counset for respondents No. 1 & 2. Shri S.S. Rajput, counsel for respondent No.3. Shri Pawan Kesharwani, PL for the State/respondent No. 4. JUDQMENT (22.10.2013) flled under (1)-- This is defendant's No.1 misceilaneous appeal Order 43 Rule 1(r) of the Code of Ch/il Procedure (for short "CPC") against the order dated 25.06.2013 (rassed by Additional District Judge, (FTC), Dhamtari (CG) in Clvit Suit No.35-A/2013 bywhich the respondents' No. 1 & 2/plaintiffs applfoation flled under Order 39 Rule 1 & 2 read with Section 151 of the CPC has been allowed by the trial Court. (2) By the impugned order, the trial Court has allowed the plaintiffe' application filed under Order 39 Rule 1 & 2 of the CPC, fiRding inter alia, prima facie case, balance of convenience and irreparable Soss in their favour. (3) Facts, in brief, necessary for disposal of this appeal are as under:- -^•r^ ""^-•fM "I %: Si!esas&' <- (3,'t) Respondents No. 1 & 2/ptaintiTfe and appellant/ defendant No.1 are real brothers and defendant No. 2 - Smt. is thelr mother. Defendant No.2 (mother) sold the Ganga Bai suit property to her one son defendant No. 1 vide registered sale deed dated 25.07.2012 and pursuant to which the name of defendant No.1 has beer»mutated by theorders of Revenue Authorities. (3.2) Respondents No.1& 2/plaintiffs fited a suit for declaration that sale deed dated 25.07.2012 is null and void as the property betongs the joint family property and it derived from the income of shop of their father Shrichand Pinjani and, therefore, the sale-deed dated 25.07.2012 be declared nutl and void and mother and brother of the plaintiffe be re^rained from alienating the suit propertytill final disposal ofthe suit. impugned, allowed the (3.3) plaintiffe' application for temporary injunction filed under Order 39 Rute 1 & 2 read wlth Section 151 of the CPC. Hence this appeat. The trial court, vfde order Shri B.P. Sharma, leamed counsei appearing forthe appeltant (4) * No.1 would submit that the trial Court went absolutely wrong in granting temporary injunction in ptaintiffs' favour as they have neuther prima-facie ease in thelr favour nor balance of convenience tied in their favour, therefore, the question of irreparable loss does not arise. (5) On the other hand, Mr. Kunal Das, leamed counsel appearing for respondents No. 1 & 2/pi'aintiffs wouU submtt that the trial Court has absofutely justified in granting temporary injunction in plaintiffs 1 favour as the suit property is joint family property and purchased from the income of their own business. He would further submit that the balance of convenience ties in their favour and if the third party right is created in the suit property, they will suffer irreparable loss. (6) Learned cpunsel appearing Tor respondent No. 3 is supported the argument as advanced by Mr. B.P. Sharma, teamed counsel appearing forthe appellant. """"^^ ^ f? (^ (7) I have heard learned counsel appearing fcr the parties and considered the rival submissions made thereln. Indisputably, defendant No. 2 - Smt Ganga Bai hassold the suit property to her one son appellanVdefendant No.1 - Rajesh Pinjani vide regtstered sale deed dated 25.07.2012 and his name has been mutated in the revenue records; the suit has been filed by the respondents No. 1 & 2/plaintiffs for declaration that the sale deed dated 25.07.2012 is declared null and void as the property belongs to the joint family property as it derived from the income of the shop of their father Shrichand Pinjani The trial Court, after hearing the parties, has he!d the triable substantial question of law is involved in the suit and all ingredients for graot of temporary injunction namety prima facie case, balance of conventence and irreparable loss are available and if temporary injunction is not granted, the plaintiffs would suffer irreparable injury. (10) It is well settled that the appeal under Order 43 Rule 1 (r) of the CPC against grant or refusal of the application for temporary injunction is an appeal against the exercise of discretion is said to be an appeal on principle. This court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where discretion has been shown to have been exercised arbitrarily or capaciously or perversity or where the Court had ignored the settled principle of law ignoring grant or refusal of the temporary injunction. (11) tn a decision Wander Ltd. and another Vs. Antox India P. Ud; reported in 1990 (SUDD.) SCC 727. the Supreme Court has considered the scope of appellate power to interfere with the discretion exercised by the Court of flrst instance in granting or refusing the prayer oftemporary injunction and held as under- , . - "14. The appeals before the CSviaon Bench were In against the exclse of discretion by the Single Judge. such appeals, ttre appellate Court will not mterfere wlth fte exerase of cSscreSon of the Court of ffref Instance ancf subsShite its own discreSon except where the tfscreffon has been shown to have been exercgsed arbitrarily, or caprisaously or perversely or where the Court had ignored the settled princlples of law regulatiRg grant or refusal of intertocutory injunctions An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a concluaon different from the one reached by the court betow if the one reached by ffiat court was reasonably possable on the material. The appellate court would normally not be justMed in inteffering with the exercise of discreton uncfer appeal so/e/y on the ground that if it had considered the matter at the trial stage it would have come to a contrary conduson. If the {ffscretfon has been excercised by the tnal Court reasonaUe and in a judlcial manner the fact thatthe appellate court woiild have taken a differentview may notjusffty interference with the trial Court's exerdse referring to Osese princ'iples of discretion. AUer Gajendragadka, J in Printers (Mysore) Private LW. V. Pothan Josep/? ^960; SCR 713: AIR 1960 SC 11W (SCR 721). These f»indptesare well established, but ashas toeen obse/ved by Vlscount Simon m Charies Orsenton & Co. Jhanton (1942 AC 130)' ...... the law as to the revers^ by a court of appeal of an order made by a Judge below in the exerdse of his discreffon is well estabtished and any difficulty that arises is due only to tte applicaffon ofwell seMed principles in an indMdual case. The appettate judgment does not seem to defer to this principle. (12) Keeping regard to the principle laid down by the Supreme Court in the aforesaid case, in the instant case, the trial Court has considered three principles laid down for consideration of application fortemporary injunction namety pmna-/acfe case.balance ,of convenience and irreparable loss, thereafter granted limited <0 temporary injunction restraining the appellant/defendant No.1 from <-^^t- alienating thesuit property titl final disposal of the ^peari and, therefore, considering the fact that parties are related to each other and the suit property has been sold by mother to her one son/defendant No.1, l am ofthe opinion that balanc»of convenienc^ lies in favour ofthe plaintiff. (13) Thus, the discretion exercised by the triat court fn granting the temporary injunction to the respondents No. 1 & 2/ plaintiffe eannot be said that discretion has been exercised by the trial Court arbitrarily, capaciously or perversely. Thus, the trial Court has not c^mmitted any iltegality warranting interference by this Court exercise ofjurisdiction under Orda'43 Rule 1(r) ofthe CPC. „*. (14) Acyordingly, the appeal deserves to be and is hereby dismissea and order impugned granting temporary tnjunctton dated ^.06.2013 restraining the defendant No. 1 from atiening the sutt property is hereby maintained. (15) However, the trial court fe directed to decide the suit expeditiously without being influenced by any of the observations made hereinabove. (16) No order as to costs. Sd/- Sanjay K. Agrawal Judge