RAMASAMY Vs. PUVIARASAN MINOR

JUDGEMENT

(1.) THIS Appeal is preferred against the order dated 9. 11. 1993, passed by the learned single judge in Civil Miscellaneous Appeal no. 215 of 1993.

(2.) THE aforesaid appeal was filed against the order dated 11. 1. 1993, passed by the learned Subordinate Judge, Pattukkottai, on I. A. No. 185 of 1992 filed in A. S. No. 62 of 1992. THE facts necessary for the purpose of deciding the question as to whether the learned single Judge is justified in setting aside the order dated 11. 1. 1993 passed by the Subordinate Judge, pattukkottai are as follows: THE appellant is the defendant in the Original suit No. 42 of 1990 filed in the District Munsif's Court, Pattukkottai by the respondent-plaintiff for a decla-tion that the plaintiff is the owner of the land bearing Survey No. l93/4b, measuring 46 cents, situate in Karambayam village, Pattukkottai Taluk, Thanjavur District and also for a permanent injunction from interfering with his peaceful possession and enjoyment of the land. THE plaintiff claimed that he had obtained sale deed from the son of the defendant, transferring the land in question and from the date of sale he has been put in possession of the same and has been in enjoyment of it. On the contrary, the defendant pleaded that the land in question had not been put to the share of his son; therefore, he had no right to alienate the same. THE trial court decided the suit against the plaintiff both on title as well as on possession and dismissed the suit. Aggrieved by the decree of the trial Court, the plaintiff has preferred A. S. No. 62 of 1992 in the Court of the Subordinate judge, Pattukkottai. Pending the appeal, the plaintiff-appellant made an application for an order of temporary injunction. THE learned Subordinate Judge has rejected it on considering the contentions elaborately. THE learned single judge in the civil miscellaneous appeal has set aside that order. THE reason given by the learned single Judge for setting aside the order is found in paragraph 4, which reads thus: 'the respondent herein has filed a counter affidavit. This respondent is the son of Chin-nathambi Udaiyar who has sold the suit-property to the minor plaintiff. It is not disputed that there was an injunction during pendency of the suit as against the respondent herein. THE suit was dismissed by the trial court. THE vendor of the suit property in favour of the appellant herein is none other than his own son. It is a registered sale deed and in view of the order of interim injunction granted by the trial court, I am inclined to continue the same during pendency of the first appeal. In the circumstances, the order of the lower appellate court is set aside and there shall be an order of interim injunction as prayed for in i. A. No. 185 of 1992 pending disposal of the appeal A. S. No. 62 of 1992. . .' 'thereafter, the learned single Judge has directed the transfer of A. S. No. 62 of 1992 to the Principal Subordinate Judge, thanjavur. Thus, from the order of the learned single Judge, it is clear that the only reason that has prevailed upon the learned single Judge is that the vendor of the suit property is no other than the son of the defendant and there is a sale deed executed by him in favour of the plaintiff and that there was an order of temporary injunction granted during the pendency of the suit and therefore, the order passed by the learned Subordinate Judge refusing to grant an order of temporary injunction pending the appeal is liable to be set aside. It is relevant to notice that though an appeal lies against an order granting or refusing to grant a temporary injunction, but the scope of such an appeal is not as that of a regular appeal. THE appellate court is required to see only as to whether the trial court has exercised the discretion judiciously and has taken into consideration the factors, which are relevant to an order of temporary injunction. Mere fact that an appellate court would come to a different conclusion on appreciation of the contentions that the one arrived at by the trial court, is not a ground for interfering with the order passed by the trial court granting or refusing to grant an order of temporary injunction, consequently, whenever an appeal is filed against an order granting or refusing to grant an order of injunction, in deciding the appeal the appellate court also shall have to bear in mind the findings recorded by the trial court and the reasons given, and consider whether the discretion is properly and judicially exercised whether the order is unreasonable and palpably unjust and erroneous and ignores material facts and circumstances and thereby there is miscarriage of justice. In the case of an application filed for temporary injunction in the appeal preferred against the judgment and decree passed in the suit, the findings recorded by the trial court while decreeing or dismissing the suit will have a great value in consideration such an interlocutory application. Until the appeal is decided, those findings will prevail. Unless it is shown that the findings, on the very face of them are bad, unreasonable, palpably erroneous normally pending disposal of the appeal, such findings do form a basis for considering the application. Of course, in exceptional cases, where it is shown that there is going to be irreparable loss or failure of justice, it is open to the appellate court to consider the question of issuing an order of temporary injunction, on being satisfied that the findings are perverse or unreasonable and are arrived at ignoring material evidence.