RAMESHCHANDRA AGRAWAL Vs. JAGDISH PRASAD

JUDGEMENT

(1.) PLAINTIFF is in revision under section 115 of the CPC. By this revision it challenges the order passed in appeal No. 18/2001 dated 27.8.2001 rendered by Vlth ADJ Indore, which in turns affirms the interim order passed by the learned Trial Judge on 19.5.2001 in civil suit no. 138 -A/99. By impugned order, the application made by the plaintiff under order 39 rule 1 and 2 was rejected and the application made by the defendants for grant of injunction was allowed by the Trial Court. The plaintiff felt aggrieved and filed appeal which as stated supra was rejected by the impugned order and hence this revision.

(2.) SO far as grant of injunction by the Trial Court in favour of defendants and against the plaintiff is concerned it is quoted in paragraph 13 of the impugned order. It only says that plaintiff is restrained from creating any obstruction in a particular road in the enjoyment of defendants. In other words, the injunction is that plaintiff should not create any hindrance in the defendants right while using a particular road. I do not find any illegality in passing such an order by the trial Court and affirmed in appeal. It is much more so when it is based on proper appreciation of evidence and after hearing the parties concerned. When both the Trial Court as also the appellate Court examined the issues on facts, appreciate the evidence and then passed such an order, it cannot be said to be an order lacking jurisdiction. So far as grant of injunction in favour of plaintiff is concerned, both the Courts below i.e. Trial Court as well as appellate Court have found against the plaintiff. None of the ingredients, such as prima facie case, balance of convenience and injuries, was made out in his favour. I have gone through the order passed by the two Courts below and have found no case requiring any interference in the same. Submission of the learned counsel for the applicant was that since defendants did not claim any permanent injunction, he had no right to claim temporary injunction, is not acceptable. It is not necessary to claim permanent injunction for claiming temporary injunction under order 39 rule 1 & 2. In order to prevent any miscarriage of justice and to preserve the rights of the parties, both parties can always make application and claim for temporary injunction during the pendency of the suit. So far as the submission of learned counsel for the applicant that some of the documents were not considered by the learned Trial Court and appellate Court, I find no substance in the submission. Learned counsel for the applicant was not able to point out as to which was that particular document which was not taken note of though material for disposal of the injunction application. The reasoned order passed by the learned appellate Court also shows that all the issues were considered and then impugned order was passed.