Allowed

Mohammed Fareed S/O Abdul Sattar, v. Smt. Firoza Bano W/O Zahid Ali D/O Kayyum Ali

Rajasthan HC25 Aug 2022CMA/1340/2022

Case brief

AI extract

What is this about?

The High Court allowed the appeal and quashed the trial court's order granting a temporary injunction in a suit for cancellation of sale deeds. The High Court held the order was cryptic, arbitrary, and perverse for failing to apply judicial mind to the three essential ingredients required by law.

What did the court decide?

The order dated 1.4.2022 passed by the trial court was quashed and set aside, and the matter was remitted to the trial court to decide the T.I. application afresh within a month.

Mohammed Fareed S/O Abdul Sattar, Vs Smt. Firoza Bano… — Property and Title | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Miscellaneous Appeal No. 1340/2022

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Mohammed Fareed S/o Abdul Sattar, Aged About 50 Years,

¶4

Abdul Sattar S/o Abdul Hafeez, Aged About 72 Years,

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Smt. Shama W/o Mohammed Fareed, Aged About 44 Years,

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Smt. Shagufta W/o Mohammed Ameen, Aged About 33 Years,

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All R/o Malarna Dungar, Thana Malrana Dungar, District Sawai Madhopur (Raj.)

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----Non Applicants No. 1 to 4 / Appellants Versus

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Smt. Firoza Bano W/o Zahid Ali D/o Kayyum Ali, Aged About 32 Years, Through Power of Attorney Khaleel Ahmed S/o Zameel Khan, Age About 48 Years, R/o Malarna Dungar, Thana Malarna Dungar, District Sawai Madhopur (Raj.).

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….Applicant/Respondent

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1. Kasif Khan S/o Abdul Kalaam Khan, Aged About 24 Years, R/o Salempur, Tehsil Sapotera, District Karoli, Raj.

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Sub Registrar, Malarna Dungar, Tehsil Malarna Dungar, District Sawai Madhopur, (Raj.).

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Tehsildaar, Through Land Holder, Tehsil Malarna Dungar, District Sawai Madhopur (Raj.).

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----Non Applicants No. 5 to 7 / Proforma Respondents

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For Appellant(s) : Mr. Faraz Hussain, Advocate For Respondent(s) : Mr. Sanjeev Kumar, Advocate Mr. Mohd. Wasim Khan, Advocate

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HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment

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25/08/2022

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This Civil Misc. Appeal has been filed by the appellantsNon Applicants no. 1 to 4 (for short, 'the Non Applicants') against

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(2 of 4)

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[CMA-1340/2022]

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the order dated 1.4.2022 passed by District Judge, Sawai Madhopur in Temporary Injunction (for short, ‘T.I.’) Application No. 32/2021, whereby the T.I. application filed by the respondentapplicant (for short, ‘the applicant’) has been allowed.

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Learned counsel for the non applicants submits that the applicant-plaintiff filed a suit for cancellation of sale deeds dated 7.11.2017 and dated 19.4.2018 alongwith T.I. Application. The trial court without discussing three essential ingredients i.e. prima-facie case, balance of convenience and irreparable loss, nor mentioning facts of the case nor pleadings of the parties, has granted temporary injunction vide its order dated 1.4.2022. The order dated 1.4.2022 passed by the trial court is a cryptic order. Hence, the same is liable to be quashed and set-aside.

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On the other hand, learned counsel for the respondents has opposed the same. He has supported the impugned order and stated the same to be just and proper.

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Heard. Considered.

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The trial court while granting T.I. has passed the

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following order:

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“odqyk; i{kdkjku mifLFkrA cgl vLFkkbZ fu"k/kkKk izkFkZuk i= lquh xbZA i=koyh dk /;kuiwoZd voyksdu fd;k x;kA

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izdj.k ds leLRk rF;ksa ij xEHkhjrk iwoZd fopkj ,oa euu djus ds mijkUr ;g izdV gksrk gS fd bl izdj.k esa izeq[k fof/kd iz’u ewy okn esa l{ke lk{; ij r; fd;s tk;saxs rc rd ;g vko’;d gS fd fookfnr lEifRr dks lajf{kr j[kk tkosaA

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vr% mDr izkFkZuk i= dk fuLrkj.k bl :i esa fd;k tkrk gS fd bl vk’; dh vLFkkbZ fu"ks/kkKk tkjh dh tkrh gS fd mHk; i{kdkjku fookfnr lEifRr ftldk fooj.k izkFkZuk i= ds en la[;k 1 eas vfdr fd;k gS] dks ewy okn ds fuLrkj.k rd vkxs gLrkUrj.k] jgu] O;; ugha djsaA

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i=koyh QSly 'kqekj gksdj ckn rdehy layXu ewy okn i=koyh gksaA“

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(3 of 4)

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[CMA-1340/2022]

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In the case of Smt. Vimla Devi versus Jang Bahadur

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reported in RLW 1977 page 327 , the Coordinate Bench of this

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Court has held as under:

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"Another well established principle while disposing of the application under Order 39 Rules 1 and 2 CPC is that when the Court while dealing with the case for grant of temporary injunction decides the question of prima facie case, it should apply its judicial mind to the materials which are placed on the record and if it does not do so, then it commits illegality in the exercise of jurisdiction and in that case, the High Court is competent to interfere.

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In the case of Vadivel Mudaliar and another Versus Pachianna Gounder reported in AIR 1974 Madras 87, the

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Madras High Court has observed as under:-

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"In the matter of granting temporary injunction it is the duty of the Court to take into consideration the affidavits and the relevant documents before it records a finding. Taking into consideration the documents does not mean merely referring to the same in the judgment; but there must be some discussion about them before any conclusion is arrived at. Unfortunately, the Courts below have not adverted to these documents, though not in detail at least prima facie, except referring them in their judgments. This has completely vitiated the orders of the Courts below, which, in my opinion is a material irregularity and has to be taken that the Courts below have not exercised their jurisdiction vested in them by law."

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The trial court is not found to have applied its judicial mind while passing the impugned order dated 1.4.2022. Neither the facts of the case nor the pleadings of the parties have been mentioned nor any finding whatsoever has been given in the impugned order about three essential ingredients i.e. prima facie case, balance of convenience and irreparable loss for granting T.I. and the trial court granted T.I. in a cursory manner. The order dated 1.4.2022 passed by the trial court seems to be cryptic,

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(4 of 4)

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[CMA-1340/2022]

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arbitrary and perverse, which is not based on settled legal principles, therefore, the same is not sustainable. Thus, the impugned order dated 1.4.2022 passed by the Trial Court is liable to be quashed and set-aside.

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Accordingly, the appeal filed by the non applicants is allowed; the order dated 1.4.2022 passed by the trial court is quashed and set-aside and the matter is remitted to the trial court with a direction to decide the T.I. application filed by the applicantplaintiff strictly in accordance with law, within a month from the date of receipt of certified copy of this order, afresh in accordance with law without being influenced by its earlier order.

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The counsel for the applicant undertakes that till disposal of the T.I. application, the applicant shall not alienate the property in question.

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(PRAKASH GUPTA),J

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DK/78

Mohammed Fareed S/O Abdul Sattar, v. Smt. Firoza Bano W/O Zahid Ali D/O Kayyum Ali

Case brief

What is this about?

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Mohammed Fareed S/O Abdul Sattar, v. Smt. Firoza Bano W/O Zahid Ali D/O Kayyum Ali

Case brief

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What did the court decide?

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