27 Sep 2022 1:10 PM GMT
The Karnataka High Court has said that if the trial court has not given clear finding in regards the possession of a suit property, it is better for the appellate court to grant an order of temporary injunction, if it was in operation till disposal of the suit before the trial court.A single judge bench of Justice Sreenivas Harish Kumar said, "There is no hard and fast rule that the...
The Karnataka High Court has said that if the trial court has not given clear finding in regards the possession of a suit property, it is better for the appellate court to grant an order of temporary injunction, if it was in operation till disposal of the suit before the trial court.
A single judge bench of Justice Sreenivas Harish Kumar said,
"There is no hard and fast rule that the appellate court should not refer to the evidence of the witnesses and the findings given by the trial court while deciding the application for temporary injunction. If the appellate court feels that the evidence has to be looked into, it should be for the limited purpose of forming an opinion regarding the nature or status of the property."
"For instance, if a suit for bare injunction is dismissed holding that plaintiff is not in possession of the property, in the appeal, that finding has a significant effect, de-hors that finding, the appellate court cannot grant an order of temporary injunction in favour of the appellant. But in other types of suits, decision whether an order of temporary injunction is to be granted or not during pendency of the appeal has to be taken based on all attending circumstances. If the trial court has not given clear finding as regards possession, it is better to grant an order of temporary injunction if it was in operation till disposal of the suit."
The court made the observation while dismissing an appeal filed by Shadakshari C.L. and others questioning the order dated 13/12/2021, passed by the appellate court allowing the application filed by the respondents (original plaintiffs) seeking temporary injunction against the appellants pending disposal of the appeal filed by them challenging the trial court order which had dismissed their title suit.
Firstly the bench noted that if a temporary injunction is sought in an appeal preferred against decree, the position is slightly different. It said ,"In my opinion, the appellate court need not decide such an application in the manner the appellate court decides the appeal preferred under Order 43 Rule 1 of CPC."
"Whether to grant injunction or not pending disposal of the appeal lies within the prudence of the appellate court having regard to the facts and circumstances of the case on hand. The purpose of granting a temporary injunction is to preserve the status and nature of the property until the dispute is decided on merits."
Noting that ordinarily the appellate court should not disturb the status ordered to be maintained by the trial court. In order to take a different view, the appellate court must find an exceptional circumstance.
The bench held,
"Here in this case, it is not in dispute that the order of temporary injunction was in force till disposal of the suit and it had been confirmed in the appeal also. This aspect has been noticed by the appellate court. In addition to this, the appellate court has also held the testamentary capacity of the testator has not been objected to by the appellant and what requires to be examined is findings of the trial court about the execution of the will under suspicious circumstances."
It added, "The first appellate court has to give a clear finding as to possession also, but till then there is no good reason to disturb the status that was ordered to be maintained till disposal of the suit."
Accordingly it dismissed the appeal.
Case Title: Shadakshari C.L & others v Santhosha C.A & others.
Case No: MFA NO.667 OF 2022
Citation: 2022 LiveLaw (Kar) 378
Date of Order: 5TH DAY OF SEPTEMBER, 2022
Appearance: Advocate A. Madhusudhana Rao, for appellants; Advocate R. Vi jay Kumar, for Advocate G. Lakshmeesh Rao for respondents
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