AMAR SINGH AND ORS Vs. SMT. GAURA DEVI

JUDGEMENT

(1.) A suit was filed by Smt. Gaura Devi respondent for possession of the land in dispute on the ground that she was tenant under the original owner Anup Singh at a monthly rent of Rs. 12 and that she had been disposed forcibly by the petitioners during the pendency of her previous suit, which had been filed by the respondent for declaration and for permanent injunction with regard to 200 sq. yard, of land. According to the respondent, some of the land, which is the land in suit in the second suit was taken possession of by the petitioners forcibly. With regard to the remaining land, her suit for permanent injunction and declaration was decreed with the consent of the parties. In the present suit the case of the petitioners in the written statement is that Amar Singh petitioner had purchased the suit land alongwith other land from the original owner Anup Singh and that the respondent was never the tenant on this land. During the pendency of this suit an application under Order 9, Rules 1 and 2 of the Civil Procedure Code was filed for interim injunction to the effect that the petitioners be restrained from making any new construction on the suit land. The trial sub-Judge ordered that the petitioners will be authorised to make the constructions at their own risk and that in case the suit was decreed, the petitioners will be bound to remove the construction as well as the Malba. An appeal was filed by the respondent, which was allowed and it has been held by the lower appellate Court that the balance of convenience was for maintaining the status quo. Consequently the order of the trial Sub-Judge was reversed and an ad-interim injunction was issued restraining the present petitioners from making any construction over the suit land during the pendency of the suit.

(2.) The learned counsel for both the sides have emphasised their respective contentions with reference to some documentary evidence. It will not be appropriate to refer to this evidence at this stage and to express any opinion on the same. From the perusal of the judgments of the two Courts below, however, it can be spelt out that the plaintiff-respondent had no prima facie case and as such according to the settled principles of law injunction could not be passed. The simple question is whether the discretion exercised by the lower appellate Court in issuing the interim injunction should and can be interfered with in revision petition. According to the learned counsel for the petitioners discretion had been exercised by the trial Sub-Judge and the same could not be interfered with by the lower appellate Court. I am of the considered opinion that the discretion exercised by the lower appellate Court cannot be interfered with in revision unless the order exercising the discretion can be termed as perverse or having been passed on some extraneous considerations. Even if I hold a different opinion, it is not desirable and permissible for this Court to interfere in revision with the discretion exercised by the lower appellate Court. Consequently this revision petition is dismissed.

(3.) It is contended by the learned counsel for the petitioners that though the proceedings in the trial Court were not stayed by this Court, but the plaintiff-respondent has not taken any steps to complete his evidence. The learned counsel for the respondent says that his client had already deposited diet-money and process-fee for the witnesses. In view of the fact that the interim injunction issued by the lower appellate Court is being maintained the trial of the suit should be expedited and no party should be allowed to delay the proceedings.