JUDGMENT
A.M. Saikia, J.
1. The Title Suit being T.S. No. 10/04 along with an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908 (in short, “C.P.C.”) being registered as Misc. (J) Case No. 4/04 was instituted by the appellants as plaintiffs against the respondents arraying them as party defendants for a decree of declaration of their right, title and interest as well as possession over the suit land with a further prayer for a decree for cancellation of a Sale Deed No. 9109 dated 1-11-03 which was allegedly executed illegally and fraudulently by the defendants/Respondents Nos. 2 to 13 in favour of the defendant/respondent No. 1. Initially, the learned trial Court, on the application seeking temporary injunction, issuing notice upon the respondents, passed, as an interim measure, the order of status quo in favour of the appellants on 30-1-04. After the appearance of the parties i.e., the respondents by filing written objection and upon hearing the learned Counsel representing both the parties, the learned trial Court by its order dated 15-7-04 dismissed the Misc. Case (J) No. 4/04 holding that the appellants had no prima facie case to go for trial etc. and thereby ad interim order of status quo dated 30-1-04 was vacated.
2. In this appeal, the aforesaid order dated 15-7-04 has been challenged solely on the ground of perversity. It is pleaded that the learned trial Court’s finding was precisely based on the photocopy of the Jamabandi filed by the appellants observing that since in ‘Entry (Cha)’ of the Jamabandi showed that Umesh and Balindra sold a total plot of land measuring 7 Bighas 1 Katha 14 Lechas to Bharpur, Jalil Seikh, Bhehua, Khalisa Seikh and Asan Ali, without prejudice to the merit of the main suit, it was held that if the appellants had have any land in their share, the same was to the extent of only 2 Katha 3’/2 Lechas when in fact such ‘Entry ‘(Cha)’ of the Jamabandi does not indicate anywhere any such area of the land measuring 7 Bighas 1 Katha 14 Lechas so as to make the shares of the appellants to the extent of 2 Kathas 31/2 Lechas save and except the remark that 3 Bighas of land under New Dag No. 571 was mutated in the names of Bhehue Seikh and Khalisa Sheikh along with Umesh, Balindra and Chandra when 1 Bigha 1 Katha 14 Lechas under Dag No. 571 in the name of Hasan Ali.
3. Heard Mr. S. Medhi, learned Counsel for the appellants and Mr. S. Ali, learned Counsel appearing for the respondents.
4. Assailing the impugned order, Mr. Medhi has strenuously argued that the ad interim order of status quo passed on 30-1-04 was vacated by the impugned order by the learned trial court most mechanically and without any application of judicious mind and the same is apparent and manifest on the face of the order itself. The finding on ‘Entry (Cha)’, as has been noticed above, does not find support from ‘Entry (Cha)’ of the Jamabandi itself and accordingly the rejection of the prayer of temporary injunction without proper perusal and consideration of the documents placed on record has resulted in miscarriage of justice for which the appellants have suffered irreparable loss and injury. According to Medhi, the appellants have made out a strong prima facie case for granting interim injunction inasmuch as they challenged the Sale Deed that was executed by the respondents Nos. 2 to 13 in favour of the respondent No. 1 in collusion with the revenue authority to deprive the appellants from their rightful shares and ownership over the suit land which they have inherited from their ancestors. The learned Court has also failed to take into account the irreparable loss and injury suffered by the appellants by such rejection of the prayer for temporary injunction because the respondents have started the construction work to raise huge structure over the suit land for their commercial activities and if such construction is not stopped and is allowed to be continued, the same shall further lead to multiplicity of the proceedings to the prejudice of the appellants’ interest. It is further contended that the learned Judge lost sight of the balance of convenience that lies in favour of the appellants.
5. Mr. Medhi, learned Counsel for the petitioner has relied on the following judicial pronouncement :
(1) AIR 1982 Gau 69 (Bindeshwar Narayan Singh v. Managing Committee, Shri Sundermal Hindi High School.
(2) (Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass).
6. In Bindeshwar Narayan’s case (AIR 1982 Gau 69) (supra), the Division Bench of this Court, speaking through Hon’ble K.N. Saikia, J. in paragraph 12, held as follows :
“12. …Where the sole object of a suit is protection by means of an injunction, to withhold the temporary in-junction may practically decide the cause in favour of the defendant, without giving the plaintiff an opportunity to establish the truth of the case made by his plaint. It is true that the Court will not so interfere if it thinks that there is no real question between the parties, but assuming that there is a substantial question to be decided, it will preserve the property until such question can be regularly disposed of. Where a perpetual injunction issued for and the plaintiff applies for a temporary injunction, the Court should grant the temporary injunction if the effect of not granting such an injunction will be to deprive the plaintiff for ever of the right claimed by him in this suit….”
7. In Moharwal Khewaji’s case (supra), in paragraph 10 it was held as under :
“10. … unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, and therefore, the respondent should be permitted to put the scheduled property to better use. In the facts and circumstances of the case, the lower appellate Court and the High Court were not justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant’s claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, … Courts below, … erred in making the impugned orders ….”
8. According to Mr. Medhi, applying the settled principle underlined in the above mentioned case laws, the appellants are entitled to get an injunction restraining the defendants/respondents especially respondent No. 1 to maintain status quo till the disposal of the suit as the respondent No. 1 is going to erect a big commercial complex over the suit land by changing wholly the character of the same. If such status quo order is not granted, it would be quite impossible on the part of the appellants to get back the suit land with its original status and character.
9. Mr. S. Ali, learned Counsel appearing for the respondents No. 1, defending the impugned order, has strenuously contended that no legality or perversity, as claimed on behalf of the appellants, was being committed by the learned Judge while rejecting the prayer for granting temporary injunction. It is stated that after the purchase of the land in question and having right, title and interest over the same, the respondent No. 1 has all along been in legal occupation and possession of the suit land and the same is evident from the nature of suit itself wherein the appellants have sought for recovery of possession by evicting the respondent No. 1 from the suit land. Controverting the allegation of perversity as regards the observation of the learned trial Court to the effect that the ‘Entry (Cha)’ in the Jamabandi did not show a sale of the plot of land measuring 7 Bighas 1 Katha 14 Lechas, it is forcefully argued that at no point of time, the appellants had have any such land fallen in their shares to which they could claim their title and possession. In any case, as per the learned Counsel, that aspect of the fact needs to be decided at the time of the final hearing of the present title suit but not for granting temporary injunction.
10. It is contended on behalf of the respondent that for entertaining a petition seeking temporary Injunction, the Court has to satisfy itself as regards the existence of three golden principles i.e. (i) the prima facie case, (ii) balance of convenience and (iii) irreparable loss and injury in favour of the appellants and in the instant case, all these three factors are found to be against the appellants as a result of which on being satisfied, the prayer for injunction was rightly rejected.
11. On the point of possession, the learned Counsel for the respondent No. 1, has referred to the Hon’ble Supreme Court’s decision reported in AIR 1987 SC 1492 (Terene Traders v. Ramesh Ch. Jamna Das and Co.) wherein the Apex Court held that injunction can be refused if the party seeking injunction was not found to be in possession. The relevant portion of paragraph 3 of the above cited case may be quoted as under :
“… the City Civil Court on careful consideration of the evidence came to a definite conclusion that the plaintiff/respondent No. 1 was not in possession of any portion of the suit premises on the date of the institution of the suit. Even the learned single Judge has not came to a different conclusion as he observed that the plaintiff was not in khas possession. There was no occasion for the High Court to have granted temporary injunction. It is not the case that City Civil Court acted either illegally or material irregularity in dismissing the plaintiffs application for temporary injunction….”
12. Insofar as the power of appellate Court to interfere with the matter of temporary injunction is concerned, it is contended on behalf of the Respondent No. 1 that the appellate Court should be slow in interfering with the exercise of its discretionary power in the matter of temporary injunction because the power of appellate Court is, in such cases, very limited. On the power of appellate Court in the matter of injunction, reliance has been placed on the following decisions :
(1) Wander Ltd. v. Antox India P. Ltd. reported in 1990 (Supp) SCC 727.
(2) Shiv Kumar Chadha v. Municipal Corporation of Delhi and
(3) Yumnam Yaima Singh v. Angom Jugin Singh reported in 1997 (1) GLT 282.
13. In Wander’s case (supra) the Hon’ble Supreme Court underlining the power of the appellate Court’s interference in the exercise of its discretion in injunction matter in paragraph 14, held as follows :
“14. … 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 reached 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….”
14. Settling the proposition of law as regards the power to grant injunction, the Hon’ble Supreme Court in Shiv Kumar’s case (supra) in paragraphs 30, 31 and 32 held as under :
“30. … It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principles — ex debito justitiae. Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.
31. Under the changed circumstances with so many cases pending in Courts, once an interim order of injunction is passed, in many cases, such interim orders continue for months; if not for years. At final hearing while vacating such interim orders of injunction in many cases, it has been discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to continuance of interim orders of injuntion without final hearing. It is a matter of common knowledge that on many occasions even public interest also suffers in view of such interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applications. The Court should be always willing to extend its hand to pretext (protect) a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.
32. Power to grant injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular case….”
15. Reiterating the view expressed in Shiv Kumar’s case (supra), this Court in Yumnam Yaima Singh’s case (supra), categorically held that the question of interference with the impugned order by which the temporary injunction was granted in favour of the party concerned therein, did not arise as the discretion exercised by the Court below was not arbitrary, capricious and perverse or the Court did not ignore the settled principles of law regarding granting of temporary or interlocutory injunction.
16. Having given anxious consideration to the rival contentions advanced on behalf of the learned Counsel for the parties and also on meticulous examination of the respective pleadings as well as materials available on record, it appears that initially the ex parte order of status quo was granted on 30-1-04 in favour of the appellants but upon extensive hearing of both the appellants and respondents on their appearance by filing written objection against the ex parte interim status quo order, the learned trial Court rejected the prayer for temporary injunction holding that appellant failed to make out a prima facie case for granting such relief of injunction and the appellant would not suffer any irreparable loss and injury by such rejection.
17. Admittedly, the Respondent No. 1 has been in possession of the suit land.
18. In support of the rival contentions, as regard the perverse finding based on ‘Entry (Cha)’ of the Jamabandi, the learned Counsel for both the parties have submitted respective certified copies of the Jamabandi reflecting the contents in ‘Entry (Cha)’. From a close perusal of both the certified copies so placed on record, it is seen that in the copy filed by the learned Counsel for the appellant, ‘Entry (Cha)’ does not indicate any land mutated in the name of one Hitram Das when 2 Bighas land was shown to be mutated in the name of said Hitram Das in ‘Entry (Cha)’ of the Jamabandi in the certified copy produced on behalf of the respondent No. 1 and accordingly both the copies do show different total areas of land i.e. in one it is 4 Bighas 1 Katha 14 Lechas and 6 Bighas 1 Katha 4 Lechas in other one.
19. On careful scrutiny of the documents abovereferred, this Court is of the view that since both the copies have failed to demonstrate a correct picture pertaining to area of the land, any elaborate discussion on this issue herein in deciding the instant injunction matter, would effect the merit of the case and hence this Court considers it fit and proper to leave this point to be determined by the learned trial Court in the course of final resolution of the lis.
20. Power of interference in the matter of injunction by the appellate Court is circumscribed. It is established that the appellate Court would be slow to interfere with the exercise of discretion and would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may 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 the interference with the trial Court’s exercise of discretion. The appellate Court would definitely interfere with the discretion. If it appears to the appellate Court that in exercising its discretion, the trial Court has acted arbitrarily, capriciously or unreasonably or has lost sight of the relevant facts of the case, then certainly the Court needs to exercise its discretion to grant injunction taking into consideration the attending facts and circumstances of the case. Making out a prima facie case for the trial, the balance of convenience and irreparable loss and injury in a matter of injunction are required to be examined and found positively for the purpose of exercise of said discretion.
21. In the case in hand, it appears that the impugned order did not suffer from any arbitrariness or capriciousness or unreasonableness and the learned trial Court has not ignored any settled position of law in rejecting the prayer for temporary injunction. Rather it has considered all these three factors essential in deciding the matter of injunction against the appellants. That being so, having regard to the above cited precedents, this Court does find enough force in the submission of the learned Counsel representing the respondent No. 1 and the same is accepted.
22. Consequently, this Court is of firm opinion that no wrong or illegality was committed by the learned Judge in exercising her discretion warranting interference of this Court with the impugned order dated 15-7-04. Interim order passed earlier shall stand vacated.
23. In the result, this appeal fails and stands dismissed. No costs.