SHANKERA RAM Vs. MUNNALAL

JUDGEMENT

(1.) THIS appeal is directed against the order dated 2. 4. 99 passed by Additional District Judge No. 2, Bikaner (hereinafter referred to as `the trial court') whereby the trial court dismissed the application filed by plaintiff appellant under Order 39 Rules 1 and 2 read with s. 151 C. P. C. Hence, this appeal.

(2.) BRIEFLY stated facts to the extent they are relevant and necessary for decision of this appeal are that a suit for specific performance of agreement dated 17. 8. 98 was filed by the plaintiff appellant before the trial court on 24. 8. 98 within seven days from the date of the alleged agreement against defendant respondents. The agreement is unregistered and execution of it has been denied by the respondents. Respondents also denied in their reply to the application filed by the plaintiff appellant regarding possession of the land having been given to the plaintiff appellant. Prima facie, having considered the material placed by the parties before the trial court, the trial court reached to the conclusion that the plaintiff appellant has failed to establish prima facie case in his favour. While considering the question of balance of convenience and irreparable injury, the trial court also held that since the plaintiff appellant is not in possession of the land in dispute as also failed to prima facie establish the agreement of sale dated 17. 8. 98 and, therefore, the issue of balance of convenience was not found in favour of the plaintiff appellant. The trial court prima facie held that since the plaintiff appellant is not in possession of the land in dispute, therefore, in case injunction is refused, the plaintiff appellant would not suffer any irreparable loss or injury. Since all the essential ingredients for grant or refusal of temporary injunction were found against the plaintiff appellant, the application filed by the plaintiff appellant was dismissed.

(3.) WANDER Ltd. vs. Antox India Pvt. Ltd. (3), the Hon'ble Supreme Court held as under: " 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 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. "