Devi Chand Vs Rajesh and Others

Prayer in the present civil revision petition is for setting aside order dated 21.05.2024 (Annexure P-4) passed by the learned Additional Civil Judge (Senior Division), Indri (Karnal), whereby an application under Order 39 Rules 1 & 2 CPC filed by the petitioner alongwith his suit, has been dismissed.

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1.1. A challenge has also been made to order dated 19.05.2026 (Annexure P-8) passed by the learned Additional District Judge, Karnal, whereby an appeal filed by the petitioner against the aforesaid order dated 21.05.2024 (Annexure P-4), has also been dismissed.

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Briefly, the present petitioner-plaintiff filed a suit for mandatory injunction against the respondents-defendants herein on the plea that on the Eastern side of the plot of the petitioner, there was a plot of the

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respondents-defendants, where they were raising construction of their house, however, they have opened doors and windows of the house in the plot of the petitioner. It was further pleaded that the respondents-defendants wanted to dismantle the Rasta (ABCD in the site plan) to cover the same in their own area. Alongwith the suit, the petitioner filed an application under Order 39 Rules 1 & 2 CPC.

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2.1. The respondents-defendants appeared in the aforesaid suit filed by the petitioner and contested the same by filing their written statement.

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2.1. The learned trial Court vide order dated 21.05.2024 (Annexure P-4), dismissed the application for grant of interim injunction by holding as

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under:-

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“ 8. In order to get relief under order 39 Rules 1 and 2 read with Section 151 CPC, 1908, plaintiff/applicant has to prove prima facie case, balance of convenience and irreparable loss or injury.

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9. In the present case, applicant/plaintiff places reliance upon certificate/letter dated 24.04.2024 issued by Sarpanch, Gram Panchayat to show and point out that the plaintiff/applicant is maintaining possession over the suit property. Admittedly, the suit property is located in lal dora of village Biana. Certificate dated 24.04.2024 points out that the number of the plot. However, neither the site plan nor the contents of the plaint gave description of the suit property matching with the certificate. It also transpires from the record that the list of property of owners of the village is placed on record. The list does not find mention the name of plaintiff as owner/occupier of the suit property/plot in question. Needless to say, case FIR No.234, dated 01.04.2024 stood registered

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against the plaintiff at the instance of defendant No.2 qua offences punishable under Sections 323/452/506/34 of IPC. A perusal of the same also goes to show that the allegations of criminal trespass are levelled against the plaintiff herein. The plaintiff was bound to show and establish or indicate his possession over the suit property on the basis of some material. This court is of the considered view that the plaintiff has been unsuccessful in pointing out his possession over the suit property, at this stage.

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10. Since no prima facie case exists in favour of the plaintiff and no irreparable loss would be caused to him if the injunction is not granted in his favour, present stay application stands dismissed.”

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Feeling aggrieved, the petitioner preferred an appeal before the learned Additional District Judge, Karnal, which has also been dismissed vide order dated 19.05.2026 (Annexure P-8) by holding as under:-

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“ 13. From perusal of the impugned order, it transpires that the trial court has declined the relief of injunction in favour of plaintiff/appellant solely on the ground that plaintiff has failed to prove his established possession over the property for which he is interested in seeking the injunction against the defendants. Moreover, the identity of the suit property is not established by the plaintiff. In the absence of establishing the clear cut description, identity of the suit property, the plaintiff is not entitled to relief of injunction. As such, the plaintiff has no prima facie case in his favour. As such, all the essential ingredients to seek the relief of injunction are missing in favour of plaintiff. As such, the impugned order of the trial Court is hereby affirmed and maintained.”

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In the aforementioned facts and circumstances, the present civil revision petition has been filed before this Court.

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I have heard the learned counsel for the petitioner and perused the paper-book with his able assistance. 6. A perusal of the order passed by the learned trial Court as well as learned First Appellate Court, would show that the prayer for grant of interim injunction sought by the petitioner-plaintiff has been declined on the ground that the petitioner has failed to establish the identity of the suit property. It is not disputed before this Court that the suit property is located within the ‘ lal dora’ of village Biana and that the petitioner-plaintiff has failed to indicate his possession over the suit property on the basis of any material. On the other hand, a case bearing FIR No.234 dated 01.04.2024 has been registered against the petitioner-plaintiff at the instance of defendant No.2 (Rakesh) qua offences under Section 323/452/506/34 IPC. Apparently, there are allegations of criminal trespass levelled against the petitioner-plaintiff. Even before this Court, learned counsel for the petitioner-plaintiff has failed to reflect his possession by referring to any material whatsoever. It is also not disputed before this Court that in the site plan (Annexure P-2), the number/ID number of the plot in question is not forthcoming nor the details of the plot by referring to any plot number/ID number is discernible from the reading of the plaint.

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Hon’ble Supreme Court of India in Wander Ltd. v. Antox India Pvt. Ltd., 1990(sup) SCC 727; held as under:-

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“ 14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In 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 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 conclusion different from the one reached by the court below if the one reaches 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 Printers (Mysore) Private Ltd. v. Pothan Joseph, (1960) 3 SCR 713 (SCR 721)

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“… These principles are well established, but as has been observed by Viscount Simon in Charles 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 difficulty that arises is due only to the application of well settled principles in an individual case’.”

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The appellate judgment does not seem to defer to this principle…”

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This court is of the view that the learned trial court as well as the learned first appellate court are not found to have exercised its discretion arbitrarily or perversely. Hence, by applying the ratio of decision of the Hon’ble Apex Court in the case of Wander Ltd. v. Antox India Ltd., (1990) Supp SCC 727, this revisional Court would be slow in upsetting the said order by substituting its view over the view taken by the learned courts below.

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Keeping in view the aforementioned facts and circumstances and also the settled law, I see no compelling reason, which may warrant interference by this Court in the present civil revision petition. Resultantly, the instant revision petition fails and the same is accordingly dismissed.

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This order shall not prejudice any of the parties in trial of the suit and, as such, the learned trial court shall decide the suit uninfluenced by any of the observations made herein.

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All the pending application(s), if any, shall also stand closed.

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(HARSH BUNGER) 07.07.2026 JUDGE dinesh Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

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dinesh

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Devi Chand v. Rajesh and Others

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Devi Chand v. Rajesh and Others

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