Appeal against the rejection of an application for temporary injunction in a suit regarding unauthorized construction. The High Court declined to interfere with the trial Court's discretionary order, finding the appellant failed to show a prima facie case as the construction was permitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Misc. Appeal No. 3221/2018
Rafiq Alam Kohri S/o Mohammad Hussain Kohri, Aged About 54 Years, B/c Kohri, R/o Ridmalsar, District Bikaner.
----Appellant
Versus
----Respondents
For Appellant(s) : Dr. Sachin Acharya For Respondent(s) : Mr. S.D. Vyas
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment
17/12/2018
Appellant-plaintiff has preferred this appeal under Order 43 Rule 1 CPC to challenge order dated 21st of August, 2018 passed by Addl. District & Sessions Judge No.5, Bikaner (for short, ‘learned trial Court’) rejecting his application under Order 39 Rule 1 & 2 CPC in a suit for perpetual and mandatory injunction.
The facts, apposite for the purpose of this appeal, are that appellant-plaintiff instituted a civil suit with a prayer for grant of
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perpetual and mandatory injunction against respondentdefendant. It is, inter-alia, averred in the plaint that appellant is having a residential property situated at Ridmalsar Purohitan, Jaipur Road, Bikaner, wherein respondents No.2 & 3 are carrying on their business operations and adjacent to the same property of fourth respondent is situated. As per version of the appellant, respondent No.4 started commercial construction by digging ground for basement dehors the law sans proper construction permission from Urban Improvement Trust, Bikaner. It is also pleaded in the plaint that proposed construction is likely to damage property of the appellant besides carrying out construction activities without leaving set back. While making a positive assertion that construction permission granted to fourth respondent is separately challenged, a plea is sought to be raised that commercial construction is not permissible in the area in question where property of fourth respondent is situated.
Along with the plaint, an application under Order 39 Rule 1 & 2 read with Section 151 CPC was also filed craving therein to restrain fourth respondent from raising construction and fill-up the portion excavated for raising basement construction. The application is contested by UIT, Bikaner as well as other respondents. In its reply, respondent UIT, Bikaner refuted all the averments made in the application for temporary injunction. It is also averred in the reply that when owner of a property is raising construction as per law, no incumbent can intermeddle to prevent him from raising construction. Respondents No.2 & 3, in their separate reply, alleged that fourth respondent is in collusion with the appellant-plaintiff and whole endeavour of the appellant-
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plaintiff is to evict them from the rented premises. The fourth respondent also submitted his reply denying all the allegations. It is also submitted in the reply that appellant has levelled absolutely false and baseless allegations against him just to harass him. While adverting to construction activities, it is pleaded by fourth respondent that construction activities are being carried out in accordance with the permission granted by a competent authority. Yet another plea was raised that if the appellant is aggrieved of the permission granted to him, he can very well avail remedy under Section 73(9) of the UIT Act before appropriate forum.
The learned trial Court, after hearing arguments of the rival parties, by the impugned order, declined prayer of the appellant. While examining prima facie case, the learned trial Court has taken into consideration all the factual aspects and recorded its definite finding that construction is being carried out by the fourth respondent after obtaining due permission from UIT, Bikaner. The learned trial Court also observed that if the appellant is aggrieved of the permission granted to fourth respondent, alternate remedy of appeal under Section 73(9) of the UIT Act is available to him. With these findings, the learned trial Court came to the conclusion that no prima facie case exists in favour of the appellant. As regards other ingredients for grant of temporary injunction, the learned trial Court recorded its finding against the appellant.
I have heard learned counsel for the parties, perused the impugned order and other materials available on record.
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In support of his arguments, learned counsel for the appellant has placed reliance on following judgments:
(2) Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation & Ors. [(2013) 5 SCC 336]
Grant of temporary injunction is within the sole discretion of Court of first instance and normally appellate Court is not expected to interfere with the discretionary order of the trial Court. The power of appellate Court to interfere can be exercised under exceptional circumstances when the appellate Court comes to the conclusion that lower Court has acted arbitrarily, perversely, or capriciously, or in disregard of the sound legal principles, or without considering the relevant records. Supreme Court, in Wander Ltd. & Anr. Vs. Antox India P. Ltd. [1990 (Supp) SCC 727], while examining power of the appellate Court under Order 43 Rule 1 CPC, has observed that such appeal is an appeal on principle and appellate Court will not interfere with the exercise of discretion by trial Court for substituting its own discretion except where discretion shown to have been exercised arbitrarily, capriciously, or perversely, or dehors the sound principles of law regulating grant or refusal of temporary injunction. The Court held:
“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
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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 reached by the 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 (SCR721)
“... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston 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.”
The appellate judgment does not seem to defer to this principle.”
In the instant case, the learned trial Court has examined the matter to record its finding that there is no prima facie case in favour of the appellant. For recording this finding, the learned trial Court has also taken into consideration a very vital fact that the plot in question where fourth respondent is raising construction, belongs to him and he is carrying out construction activities after due permission.
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There is yet another aspect of the matter that second respondent has also filed a suit in the name of company seeking perpetual injunction against present appellant and fourth respondent, wherein UIT Bikaner is also impleaded as a party and along with the suit an application under order 39 Rule 1 & 2 CPC is filed seeking temporary injunction. The temporary injunction was refused by learned trial Court as well as by the appellate Court. Being aggrieved by the same, second respondent, as Director of the company - M/s. Bharat Tractors Pvt. Ltd., approached this Court under Article 227 of the Constitution but his that effort has also proved abortive and the writ petition bearing No.15504/18 was dismissed by this Court on 4th of December, 2018.
The judgments relied upon by the learned counsel for the appellant are clearly distinguishable at this stage because essentially both the judgments cited by learned counsel related to unauthorized and illegal constructions.
In totality, considering the factual backdrop of the instant case, I am convinced that the learned trial Court, while exercising its discretion to decline prayer for temporary injunction, has neither acted perversely, capriciously, or dehors the sound legal principles governing the province of grant or refusal of temporary injunction.
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In view of foregoing discussion, no case of interference is
made out. Consequently, the appeal fails and same is hereby rejected.
(P.K. LOHRA),J
3 issues framed by the court
Whether the High Court should interfere with the trial Court's order rejecting the grant of temporary injunction as an exercise of discretion.
Whether the construction activity by the fourth respondent was authorized and thus barred the grant of injunction.
Whether the trial Court acted perversely or capriciously in its refusal.
Colour shows how this judgement treated each authority
Priyanka Estates International Private Ltd. & Ors. Vs. State of Assam & Ors.Referred¶29
Priyanka Estates International Private Ltd. & Ors. Vs. State of Assam & Ors. [(2010) 2 SCC 27] · Who else cites this
Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation & Ors.Referred¶30
Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation & Ors. [(2013) 5 SCC 336] · Who else cites this
Wander Ltd. & Anr. Vs. Antox India P. Ltd.Explained¶31
Wander Ltd. & Anr. Vs. Antox India P. Ltd. [1990 (Supp) SCC 727] · Who else cites this
Printers (Mysore) Private Ltd. v. Pothan JosephExplained¶35
Printers (Mysore) Private Ltd. v. Pothan Joseph (SCR721)
Charles Osention & Co. v. JohnstonExplained¶36
Charles Osention & Co. v. Johnston
5 provisions across 3 enactments
Rafiq Alam Kohri
Urban Improvement Trust, Bikaner
Mahesh Kumar Gupta
Ashok Kumar Gupta
Rajendra Kumar Gupta
P.K. LOHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
