1. This revision petition is by the defendant and is directed, against the judgment dated 6th Oct., 1982, passed by the Civil Judge, Bagalkot, in Misc. Appeal No. 15/82 on his file, allowing the appeal on setting aside the order passed by the Munsiff, Bagalkot on I.A.I. in O. S. No. 130/82 on his file, vacating the ex parte temporary injunction order granted in favour of the plaintiffs on 15-7-1982.
2. The plaintiffs were the owners of the property T. P. No. 141. They sold the eastern portion measuring 30' x 50' to the defendant under a registered sale deed dated 10-4-1978. In the sale deed, the first item of the property sold is shown as the building portion measuring 30' X 36' and the second item is shown as open space measuring 30' x 14'. It is not in dispute that after the defendant . purchased the second item open space, she has put up construction over the same. There arose, however, dispute between the parties when the defendant constructed a septic tank measuring 10' 5' x 4' 5' in the space towards southern side of the two latrines of the plaintiffs for her use, alleging that the space constituted the 3rd item sold to her. The plaintiffs instituted a suit on the averment that they retained the ownership over the area where the defendant constructed the septic tank and they sought for permanent injunction against the defendant in the suit from putting up a latrine in that area stating that they did not allow under the sale deed permission to the defendant to put up latrine with septic tank in the area. After the institution of the suit,, the plaintiffs got issued a temporary injunction against the defendant ex parte. The defendant entering on appearance filed objections and the matter came up for hearing before the trial Court. The trial Court by its order dated 6-9-1982 vacated the ex parte temporary injunction order granted and dismissed I. A. I for temporary injunction instituted by the plaintiffs. Aggrieved. by the said order the plaintiffs went up in appeal before the learned Civil Judge. Bagalkot in Misc. Appeal No.15/82 and the learned Civil Judge, Reassessing the evidence on record, allowed the appeal, set aside the order passed by the trial Court and granted the temporary injunction order as prayed for in favour of the plaintiffs. Aggrieved by the said judgment passed by the learned Civil Judge, the defendant has instituted the present civil revision petition before this Court.
3. The learned Advocate appearing for the revision petitioners strenuously urged before me that the learned Civil Judge committed a legal error in approaching the facts of the case and that he exceeded his jurisdiction in interfering with the order passed by the trial Court in its discretion. He pressed on me that when the learned Civil Judge himself admitted that the interpretation put by the learned Munsiff on the sale deed was also reasonably probable the learned Civil Judge had no jurisdiction to differ from the order passed in its discretion by the trial Court. He submitted that the first appellate Court was not at liberty to interfere with the discretionary order passed by the trial Court in vacating the injunction, simply because, a different interpretation is possible on the facts of the case. That way he submitted that the first appellate Court exceeded its jurisdiction. He further submitted that the first appellate Court was not even justified in thinking that there was any ambiguity in the sale deed and in trying to put two interpretations where there was no ambiguity at all in the words of the sale deed. Hence, he submitted that the C.R.P. was entitled to succeed.
4-5. As against that the learned Advocate appearing for the respondents plaintiffs argued supporting the judgment passed by the learned Civil Judge.
6. The sole point, therefore, that arises for my consideration in this appeal is: Whether the first appellate Court exceeded its jurisdiction in interfering with the order of the trial Court passed in its discretion?
7. It is well established that issuance of injunction or vacating of it is mainly in the judicial discretion of the trial Court. It is no doubt true that an appeal lies against the order of issuing or vacating the injunction order. But, law is well settled as to the jurisdiction that the appellate Court should exercise in hearing such an appeal against the discretionary order of issuing or vacating the temporary injunction order by the trial Court.
8. The Supreme Court of India had several occasions to consider the scope of the Appellate Authority when it was considering an order passed by the trial Court in its judicial discretion. In the case The Printers (Mysore) Private Ltd. v. Pothan Joseph : 3SCR713 . the Supreme Court considered the scope of the authority of the appellate Court while dealing with a discretionary order passed by the trial Court. That was an order passed under S. 34 of the Arbitration Act. The Supreme Court of India has observed thus (at p. 1159)
'As is often said, it is ordinarily not open to the appellate Court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant fact and has adopted an unjudicious approach, then it would certainly be open to the appellate Court and in many cases it may be its duty to interfere with the trial Court's exercise of jurisdiction.'
Similarly, in the case of Uttar Pradesh Co-operative Federation Ltd. v. Sunder Bros., Delhi : AIR1967SC249 , the Supreme Court has observed thus (at p. 253):
'Where the discretion vested in the Court under Section 34 has been exercised by the lower Court, the appellate Court would be slow to interfere with the exercise, of their discretion. In dealing with the matter raised before it at the appellate stage, the appellate Court would normally not be justified in interfering with the exercise of the discretion. under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has 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 such interference with the trial Court's exercise of discretion. If it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts, then it would be open to the appellate Court to interfere with the trial Court's exercise of discretion.' 1942 AC 130, Rel. on (vide para8 of the Judgment).
9. These decisions have been followed by this Court in cases more than one in laying down the law with regard to the power of the appellate Court, in discretionary orders of issuance or vacating temporary injunction order. In the case Rangamma v. Krishnappa (1968-1 Mys LJ 552), this Court has observed thus:
'Granting or refusal of temporary injunction rests on the sound exercise of discretion by the trial Court. Such exercise of discretion cannot be lightly interfered with by the appellate Court, unless it is shown that such exercise of discretion is unreasonable or capricious. That a different view was possible on the facts and circumstances of the case by itself will not be sufficient to interfere with the order. (1965) 1 Mys LJ 370: (AIR 1965 Mys 310), Ref. to.'
It is further observed by this Court:
'The principle enunciated in U. P. Co-op. Federation Ltd. v. Sunder Bros. : AIR1967SC249 , could be made applicable in all cases, where the appellate Court is called upon to review an order made in the exercise of discretion by the lower Court.'
The High Court of Calcutta in the case Kali Charan Shaw . v. Kissen Lal Choudhury : AIR1959Cal17 has ruled similarly by stating thus (at p. 19) :
'The granting or refusal of an order of injunction is in the discretion of the trial Court and when the trial Court has in the exercise of discretion decided to grant or refuse the prayer, it is certainly the right and duty of the Court of Appeal to set aside its order and make its own order and exercise its own discretion, when it is satisfied that there was no exercise of judicial discretion by the trial Court or that the ground or the basis on which the discretion has been exercised was wrong and not otherwise.'
In a more recent case, the High Court of Rajasthan in the case Smt. Vimala Devi v. Jang Bahadur of its judgment has observed thus:
'The order refusing temporary injunction is of a discretionary character. Ordinarily Court of Appeal will not interfere with the exercise of discretion passed by the trial Court and substitute for its own discretion. The interference with the discretionary order, however, may be justified if the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all the relevant records.'
The High Court of Rajasthan, bas further observed in para 11 of the judgment thus:
'The mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence will also not justify interference.' (AIR 1920 PC 132, Followed).
The appellate Court if it does so, would be acting contrary to the well established principles, the High Court pointed out, more so, when it does not deal with the reasoning that prevailed with the trial Court and further when it does not apply its judicial mind on the materials placed on record.
10. It is further ruled in that case that if the appellate Court exercised its discretion either illegally or with material irregularity, the High Court has a duty to interfere under S. 115, C. P. C.
10-A. - Thus it is well established that while dealing with a discretionary order passed by the trial Court like the one in question, vacating the temporary injunction order, the first appellate Court can interfere with such an order only when it finds that the order passed is opposed to the well established principles in the exercise' of judicial discretion or when it finds that the order passed by the trial Court is arbitrary, capricious or perverse and not when the first appellate Court finds that on the facts on record it can come to a different conclusion than the one arrived at by the trial Court. The appellate Court cannot substitute its own discretion when the discretion. exercised by the trial Court is legal and proper. The first appellate Court exceeds its jurisdiction and acts with material irregularity in the exercise of its jurisdiction, if it does so.
11. The learned counsel appearing for the respondents-plaintiffs, however, invited my attention to a short-note on a decision reported in (1974) 2 Kant LJ (SN) No. 208. Therein, it is stated by this Court, in C. P. C. decided on 3-4-1974 (Devamma v, Kullanaika) thus :
'When two reasonable views on the basis of the material available on record at the stage of interim injunction are possible, the High Court will not -interfere under , S. 115, C. P. C.'
The principle so laid down is indisputable. That only shows that an appeal against a discretionary order passed by the trial Court is more in the nature of a revision, and the appellate Court should not lightly interfere with an order passed by the trial Court in its judicial discretion. The same principle is reiterated in the Municipal Corpn. of Delhi v. Suresh, : 2SCR10 . Bearing these salutary principles of law in mind, I would proceed to appreciate the facts on record in the light of the arguments addressed before me.
12. It is not in dispute that the plaintiffs sold the properties mentioned in the sale deed dated 10-4-1978 to the defendant. Three items of properties are mentioned as sold in favour of the present defendant, in the sale deed. There is no dispute with regard to the first two items of properties sold. The sale deed inter alia states with regard to the third item thus : '
(Matter in vernacular. omitted.- Ed.)
Thus by reading the sale deed, it becomes very clear that in addition to the properties described at Serial Nos. 1 and 2 space, of 10' 5' x 4' 5' to the south of the two latrines, was also sold at Serial No. 3 for construction of septic tank and latrine. There is absolutely no ambiguity about it. Thereafter, comes the right to use the pipe line which is also described in item-3 and while describing it, it is clearly stated that the defendant is entitled to use the pipe line and he has no right over the land over the pipe line and that the ownership of the land over the pipe line is retained by the plaintiffs. The trial Court by reading the sale deed has, in my considered view, rightly held that there is no ambiguity in the sale deed and that the third item clearly includes the lands described therein as sold for construction of latrine with septic tank, it is clearly mentioned therein (septic tank Payakhane). It is in that view that the trial Court has held by reading the sale deed that the plaintiffs did not make out a prima facie case for issuance of temporary injunction against the defendant to restrain the defendant from putting up latrine with septic tank in the open space sold at Serial No. 3 in the sale deed.
13. The trial Court was further reinforced in its inference by the fact that the plaintiffs in the plaint in the other suit, namely, O. S. No. 86/82, clearly admitted that the item was sold to the defendant. The trial Court has also hastened to add that subsequently the plaintiffs have sought for amendment of the plaint and that application is under consideration. Prima facie, the trial Court was satisfied by reading the document itself and by reading the admission of the plaintiffs in the other suit that the are, in question was sold at item No. 3 to the defendant. ' Therefore, the plaintiffs failed to make out a prima facie case with regard to their case as set out in the plaint.
14. As against that, the first appellate, Court felt that there is ambiguity in the wordings in the sale deed with regard to the item-3 and two interpretations were possible. According to the first appellate Court, it is possible to interpret that by item-3, the defendant has only the right to use the septic tank and not to build a latrine there. In the first place, as rightly pointed out by the learned counsel for the revision petitioner, such interpretation is not based on the wordings of the document. Because, in item-3 it is very clearly stated 'septic tank payikhane' and not merely septic tank and item-3 is the area sold for the purpose to the defendant and the area is specifically mentioned and identification indicated. Therefore. The first appellate Court was not justified in trying to create an ambiguity where there was none and holding that two interpretations were possible, holding thereby that the view taken by the trial Court is also reasonably possible.
15. That being so, it is obvious, that the first appellate Court had no jurisdiction to interfere with the discretionary order passed by the trial Court, simply because, it was reasonably possible to take another view on the facts of the case. The first appellate Court has substituted its own discretion substituting the judicial discretion exercised by the trial Court. It could not do so. It has to stay its hands and confirm the order passed by the trial Court in the circumstances. The first appellate Court has made it clear that two interpretations are possible and that being so, it is not proper to allow the defendant to construct a latrine with septic tank. That observation is clearly illegal. It has exceeded its jurisdiction in so observing. Its order cannot be sustained.
16. The first appellate Court further thinks that if a latrine is constructed at the place, it may lead to further litigation. According to the first appellate Court no easementary right is granted it is obvious that the first appellate Court has not read the sale deed. The sale deed specifically mentions that the necessary easementary rights are also granted. I have quoted the relevant excerpt above. Be that as it may. That is not the subject matter of the present proceeding and the Court should not indulge in bringing extraneous matters to create complications.
17. The affidavit of the attesting witness which is made much of by the first appellate Court can easily be seen through. This attesting witness is none else than the tenant who occupies the portion of the building just adjacent to the proposed site for construction of the latrine. He feels aggrieved because if the latrine is constructed on the site he has to close the window of his kitchen. Hence, he has come forward to say contrary to the recitals in the sale deed, though he has attested the sale deed. . According, to him, it was not the intention of the plaintiffs to sell the space for construction of a latrine. His statement is obviously worthless. He speaks contrary to the recitals in the sale deed. The first, appellate Court should not have been guided by such statement by the witness. It may also be noted that two latrines are already there. It is not as if a latrine is put up for the first time in the open space.
18. The trial Court has considered all the necessary ingredients while refusing to issue temporary injunction. It has in fact, raised points for consideration while passing the order on I. A.I. It has raised the following points in para 9 of its judgment.
'(1) Whether the plaintiffs are having prima facie case to make the ex parte temporary injunction order absolute?
(2) Whether by vacating the order of temporary injunction the plaintiffs will be put to irreparable loss and the balance of convenience lies in their favour ?'
It has considered all these aspects. That makes it clear that the order passed by the trial Court is properly based on its judicial discretion, in accordance with the well established principles of law.
19. Moreover, the defendant has undertaken to demolish the latrine if ultimately it is held in the suit that he has no right to construct the latrine. There are already two latrines in that area. In the circumstances, therefore, the first appellate Court clearly exceeded its jurisdiction and exercised its jurisdiction in disturbing the, discretionary order passed judicially by the trial Court. The appellate Court has acted as if it is the trial Court exercising its jurisdiction instead of exercising the appellate power, on the well established principles cited above. In such circumstances, not only has this Court the power to interfere with such an order of the first appellate Court but also it becomes its bounden duty to interfere with such an order of the appellate Court under S. 115 of the C. P. C.
20. In the result C. R.P. is allowed. The Judgment of the first appellate Court is set aside and the order passed by the trial Court under I. A.I. is hereby sustained and restored. I. A. I. given by the plaintiffs for temporary injunction stands dismissed. No costs.
21. Petition allowed.