ROBERT D SILVA Vs. ROSHINI ENTERPRISES

JUDGEMENT

(1.) This Revision under S.115 of the Civil P.C. is by the defendant in Original Suit No. 80 of 1985 on the file of the Munsiff Chickmagalur. It is directed against the order of the Civil Judge, Chickmagalur in Miscellaneous Appeal No. 11 of 1985 setting a aside the order of the trial court and granting temporary injunction restraining the defendant from removing the cut-timber from the private forest area.

(2.) Briefly stated the facts leading to the suit are as follows - Plaintiff had an agreement with the owners of the private forest by which itself standing timber either exploiting it by himself or by calling upon somebody to exploit on his behalf. With that agreement, he entered into another agreement with the defendant by which the defendant agreed to pay certain sums in a phased manner on the occurring of certain events specified in the terms of the agreement by which he was to cut and remove timber after making the payments. That some of the payments enumerated in the agreement have been made by the defendant to the plaintiff is not in dispute. After making the first three payments, the fourth payment was required to be made in the sum of Rs. 5,00,000/-. That amount was not paid by a specified date. Therefore, the plaintiff approached the Court with a relief that the defendant be restrained from removing the cut timber lying on the suit schedule land and during the pendency of the suit, a temporary injunction may, in that behalf, be granted. The trial court, on examining the terms of the agreement and the contentions advanced before it, came to the conclusion that the plaintiff and the owners of the private forest, had obstructed the defendant and therefore, he was justified in not making the payment of Rs. 5,00,000/-, and as such, the plaintiff was not entitled to temporary injunction. The aggrieved plaintiff, on appeal, has succeeded in getting that order set aside. The appellant court has taken a slightly different view of the suit agreement and the terms contained therein. On the admitted facts, it has come to the conclusion that there was no way by which it could be inferred that the plaintiff had obstructed in any manner, the defendant, in exploiting the forest in the manner provided in the agreement. It has also applied the test of balance of convenience in granting or refusing the temporary injunction before setting aside the order of the learned Munsiff and itself granting temporary injunction in favour of the plaintiff. It is, in these circumstances, the defendant has approached this Court inter alia contending (1) that the appellate court ought not to interfere with the order of the trial court in matters granting or refusing injunction unless it is shown ex-facie that the order under appeal is either perverse or based on no evidence or is contrary to the evidence on record, (2) that on the facts, the Case of the parties in the suit, the defendant was protected by S.14(1)(b) of the Specific Relief Act as well as by S.41(e) of that Act; (3) that the appellate court misconstrued the terms of the agreement in not noticing the importance of Cls. (3) and (7) of the terms of the agreement between the parties.

(3.) Mr. Narasimha Murthy has strenuously contended that on the admitted facts, the appellate court ought not to have interfered with the order of the trial court. True, that numerous cases have laid down the board principles restraining the appellate courts jurisdiction to interfere with an order of the trial court in matters granting or refusing injunction. But, at the same time, those principles are no more than broad guidelines which restrict the scope for interference, but does not prevent interference and all such guidelines and principles ought to be applied to the facts of every case that comes before the Court, but not uniformly, irrespective of the facts. One cannot quarrel with the authorities cited by Mr. Narasimha Murthy. But the question is, was there scope for appellate court to interfere. The trial court clearly laid emphasis on Cl. (7) of the agreement in question. Clause (7) of the agreement is as follows :-