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Monday, January 28, 2013

Aggrieved by the grant of interim relief by an Appellate Bench of the Bombay High Court in a suit under Section 6 of the Specific Relief Act, 1963 (hereinafter for short the “SR Act”), the present appeal has been filed by the defendants 5, 10 and 11 in the suit. More specifically, by the impugned order dated 09.10.2012 the Receiver of the suit properties appointed by the learned Single Judge has been directed to remain in possession and hand over the same to the respondent Nos.1 and 2 (plaintiffs) who are to be in possession as agents of the Receiver. = interlocutory mandatory injunctions = ". The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. 17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” ; 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 if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal 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. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) “... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’.”


                                             REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL No.  678 of 2013
                 (Arising out of SLP (Civil) 31559 of 2012)

Mohd. Mehtab Khan & Ors.                ...  Appellant(s)
                                   Versus
Khushnuma Ibrahim & Ors.                ...  Respondent(s)


                               J U D G M E N T

RANJAN GOGOI, J.

      Leave granted.
2.    Aggrieved by the grant of interim relief by an Appellate Bench of  the
Bombay High Court in a suit under Section 6  of  the  Specific  Relief  Act,
1963 (hereinafter for short the “SR  Act”),  the  present  appeal  has  been
filed by the defendants 5, 10 and 11 in the  suit.   More  specifically,  by
the impugned order dated 09.10.2012 the  Receiver  of  the  suit  properties
appointed by the learned  Single  Judge  has  been  directed  to  remain  in
possession  and  hand  over  the  same  to  the  respondent  Nos.1   and   2
(plaintiffs) who are to be in possession as agents of the Receiver.

3.    Before embarking upon the necessary discussion of the  factual  matrix
of the case, an identification of  the  contesting  parties  in  the  manner
indicated below would be necessary.
|Name                  |Relationship          |Status in the Trial     |
|                      |                      |Court                   |
|Khunshnuma Ibrahim    |Wife of Deceased      |Plaintiff No.1          |
|Khan                  |Ibrahim Khan          |                        |
|Raghib Ibrahim Khan   |Son of Deceased       |Plaintiff No.2          |
|                      |Ibrahim Khan          |                        |
|Shri Asadullah Khan @ |Younger Brother of    |Defendant No. 1         |
|Sameer Khan           |Deceased Ibrahim Khan |                        |
|Shri Najmuzzaman Khan |Elder Brother of      |Defendant No.2          |
|                      |Deceased Ibrahim Khan |                        |
|Smt. Tara Begum       |Wife of Defendant No.2|Defendant No.3          |
|Shri Sheheryaar Khan  |Son-in-law of         |Defendant No.4          |
|                      |Defendant Nos. 2 & 3  |                        |
|Mohd.Mehtab Khan      |Son from 1st wife of  |Defendant No.5          |
|                      |deceased              |                        |
|Mohd. Ilyas Khan      |Brother of Defendant  |Defendant No.6          |
|                      |No.3                  |                        |
|Mohd. Dayan Khan      |Unrelated             |Defendant No.7          |
|Smt. Shehzadi         |Wife of Defendant     |Defendant No.8          |
|                      |No.12                 |                        |
|Miss Rani             |Unrelated             |Defendant No.9          |
|Tabish Ebrahim Khan   |Son from 2nd wife of  |Defendant No.10         |
|                      |Deceased              |                        |
|Kamran Khan           |Son from 1st wife of  |Defendant No.11         |
|                      |Deceased              |                        |
|Zakarullah Khan       |Son from 1st wife of  |Defendant No.12         |
|                      |Deceased              |                        |

4.    The plaintiff No. 1 claims to be the 3rd  wife  of  one  Ibrahim  Khan
whereas the plaintiff No. 2 is the son of the first  plaintiff  and  Ibrahim
Khan.
According to the plaintiffs, Ibrahim Khan  and  the  first  plaintiff
were married in the year 1993 and out of the said wedlock the plaintiff  No.
2 was born some time in the year  1996.  
The  plaintiffs  claim  that  they
alongwith Ibrahim  Khan  were  residing  in  flat  No.  A-505,  Noor-e-Jahan
Complex, Pipe Road,  Kurla  (West),  Mumbai  and  that  they  were  also  in
occupation of an office being 201/202, 2nd floor in the Big 3 Building,  88,
Anandilal Poddar Marg, Marine Lines, Mumbai from where the  first  plaintiff
was carrying on her profession of advocate and solicitors  in  the  name  of
M/s. K.K. Associates.
It is the  case  of  the  plaintiffs  that  both  the
aforesaid properties were the self-acquired properties of Ibrahim  Khan  and
that the suit flat was gifted in favour of the  first  plaintiff  whereas  a
general power of attorney was executed in  favour  of  the  first  plaintiff
insofar as the suit office is concerned.

5.    The further case of the plaintiffs is that Ibrahim Khan  had  gone  to
Delhi on 28.11.2011 to attend a wedding.  On 1.12.2011 the  first  plaintiff
could come to know that Ibrahim Khan had suffered  a  brain  hemorrhage  and
was admitted in the hospital.
According to the  plaintiffs,  they  took  an
early morning flight to Delhi on the  very  next  day.   However,  at  about
9.30/10.00 O’Clock in the morning, Ibrahim Khan died.  
Thereafter,  at  the
insistence of the first defendant (brother of the deceased) the body of  the
deceased was taken to  Bhagalpur,  Bihar  which  was  the  native  place  of
Ibrahim Khan.
The plaintiffs  accompanied  the  body  of  the  deceased  to
Bhagalpur and the last rites  were  performed  at  the  said  place  in  the
afternoon of 4.12.2011.
On 5.12.2011 the plaintiff No. 1  received  a  call
from her next door neighbour, one Nadeem, that the lock  of  the  suit  flat
was broken and  a  new  lock  had  been  placed  by  some  unknown  persons.
According to the plaintiffs, the  first  plaintiff  called  her  house  help
Niranjan who informed her that the defendants 2, 3 and 4 had forcibly  taken
possession of the suit flat.
It is also the  case  of  the  plaintiffs  that
when she had contacted her office she was informed that the defendant No.  4
had gone to the suit office and had snatched the keys from the office  staff
and had locked up the premises.

6.    According to the plaintiffs, they reached Mumbai on 6.12.2011  and  on
going to the suit flat they found that  new  locks  had  been  put  thereon.
They, thereafter,  lodged  a  complaint  to  the  police  on  6.12.2011  and
thereafter on 12.12.2011 instituted Suit No. 27 of 2012 under Section  6  of
the SR Act.
On 14.12.2011, when the matter was taken up by the  Court,  the
defendant Nos. 1 to 4 informed the Court that they are not in possession  of
the suit flat but it is the defendants 5, 11 and 12 who are  in  possession.

The Court by order dated 14.12.2011 appointed a Receiver  and  directed  him
to make an inspection of the suit flat and suit office and  report  back  to
the Court.
Such inspection was made by  the  Court  appointed  Receiver  on
16.12.2011. The report of inspection was  submitted  to  the  Court  to  the
effect that the defendant Nos. 5 to 9 were found to be in possession of  the
suit flat. 
Formal possession thereof was taken over by  the  Court  Receiver
in terms of the  order  dated  14.12.2011.  
In  the  report  of  the  Court
Receiver,  it was further mentioned that the defendant No. 10  had  produced
the keys of the suit office.
However, the Court Receiver did not succeed  in
opening the doors of the office premises as there were further  locks  fixed
thereon and inquiries did not indicate as to who was in  possession  of  the
keys.  
Accordingly, the  Court  Receiver  informed  the  Court  that  formal
possession of the  suit  office  could  not  be  taken.   In  the  aforesaid
circumstances, at the instance of the plaintiffs, defendants 5  to  12  were
impleaded in the suit.

7.    At this stage the specific case of the defendants as  advanced  before
the learned Trial Judge, may be taken note of.  
The  fact  that  the  first
plaintiff was the 3rd wife of Ibrahim Khan and the second plaintiff was  the
son born out of the said marriage is not disputed by  the  defendants.  
The
death of Ibrahim Khan in the circumstances stated in the plaint is also  not
in dispute.
According to the defendants, the appellants  were  residing  in
the suit premises with the deceased Ibrahim Khan  till  the  middle  of  the
year  2009  when  the  first  plaintiff   separated   from   the   deceased.

Thereafter,  according  to  the  defendants,  the  plaintiffs  were  not  in
possession of the suit flat and, instead, were staying in the house  of  the
father of the first plaintiff  at  Mira  Road.  
The  second  plaintiff  was
studying in a school located on Mira Road.  It is the specific case  of  the
defendants that the deceased, at the relevant  time,  was  residing  in  the
suit flat alongwith his son from the first wife (defendant No. 5)  and
that
the defendants had inherited the suit flat on the  death  of  Ibrahim  Khan.

Insofar as the suit office is concerned, it is  the  specific  case  of  the
defendants that the plaintiff No. 1  was  not  in  possession  of  the  said
premises and that the said plaintiff No. 1  had  been  functioning  from  an
office located at another place, i.e., shop No.  32/33  Ashoka  Centre,  2nd
floor, L.T. Marg, Mumbai.

8.    Alongwith the respective pleadings of the parties elaborate  documents
had been laid  before  the  learned  Trial  Judge  on  the  basis  of  which
contentions were advanced by the respective parties each claiming to  be  in
possession of the suit flat and suit office on the relevant  date  in  order
to justify the reliefs that the respective parties  were  seeking  from  the
Court.
As would be evident from the order of the  Appellate  Bench  of  the
High Court, insofar as the  suit  flat  is  concerned,  the  plaintiffs  had
produced as many as 50 documents details of which has been catalogued  in  a
chronological order in the order dated 9.10.2012.
 Insofar  as  suit  office
is concerned, similarly,  the  plaintiffs  had  relied  on  as  many  as  31
documents to show their claim of possession.
Likewise, the  defendants  had
also relied on an equally long and elaborate list of documents to show  that
the plaintiffs were not in possession of the suit flat and  suit  office  at
the relevant point of  time,  as  claimed.  
As  the  details  of  the  said
documents have been minutely taken note of by both the Benches of  the  High
Court it is not necessary for this Court  to traverse  the  said  aspect  of
the case once again.
Instead, we may briefly notice the reasons  which  had
weighed with the learned  Trial  Judge  to  refuse  interim  relief  to  the
plaintiffs and those that had prevailed upon the Appellate Bench to  reverse
the said order of the learned Trial Judge.
9.     Both  the  learned  Trial  Judge  as  well  as  the  Appellate  Court
considered the very same documents  brought  on  record  by  the  contesting
parties to arrive  at  their  respective  conclusions  with  regard  to  the
entitlement of the plaintiffs.
Specifically, the learned  Trial  Judge  had
discussed the narration of  the  events  of  dispossession  pleaded  by  the plaintiffs and held the same to be somewhat unreliable and  inconsistent  in view of the fact that the defendant No.  1  (son  of  the  deceased  Ibrahim Khan) who  is  alleged  to  have  been  instrumental  in  dispossessing  the plaintiffs was at the relevant point of  time  in  Bhagalpur  in  connection
with the cremation of the deceased, Ibrahim Khan.
In this regard  the  claim
of defendants 2 to 4 that they were also in Bhagalpur at the  relevant  time
was considered by the learned Trial Judge.  
The versions of  the  occurrence
allegedly narrated to  the  plaintiff  No.  1  by  her  neighbours  and  her
domestic aid were also found to  be  somewhat  contradictory.  
The  learned
Trial Judge took into account the fact that  the  plaintiffs’  version  with
regard to prosecution of studies by the second plaintiff in  the  school  at
Mira Road and his residing with the parents of the plaintiff No. 1  at  Mira
Road was brought on record in the rejoinder and did not constitute the  part
of the plaint case.
 In coming to his conclusions in the matter the  learned
Trial Judge also took into account the fact that the visiting  card  of  the
plaintiff No. 1 showed an address other than of the  suit  office  and  also
the fact that the communication conveying the temporary  membership  of  the
plaintiff No. 1 in the Bombay Bar Association sent to the suit flat  address
was returned with the remarks “shifted”.  
The fact that  the  visiting  card
of the plaintiff showing the office address at Ashoka Centre  contained  the
same telephone numbers of the  plaintiff  that  were  mentioned  in  certain
communications of the bank were duly taken note  of  by  the  learned  Trial
Judge. 
In the above context the claim of the plaintiff No.1  that  the  said
visiting card is a forged and fabricated document was held to  be  an  issue
fit for decision in the trial of the suit.  
The  learned  Trial  Judge  took
into account the passports of both the plaintiffs issued in  the  year  2009
showing the address of the suit  premises  as  well  as  the  vouchers/memos
showing payment by the plaintiff  No.1  for  the  household  and  electronic
goods which were found in the suit flat.  
On  an  overall  consideration  of
the aforesaid facts and the documents laid in support thereof,  the  learned
Trial  Judge  was  of  the  view  that  there  were    inconsistencies   and
improbabilities  in  the  case  of  the  plaintiffs  which  needed   to   be
established in the trial of the suit.  
Accordingly, the  interim  relief  of
direction to be put back in possession, as claimed by  the  plaintiffs,  was
declined.

10.   The Appellate Court understood the very same documents  considered  by
the learned Trial Judge in a wholly different manner.
Specifically, it  was
held that the various household and electronic goods found in the suit  flat
during  the inspection carried  out  by  the  Receiver  on  16.12.2011  were
proved to  have  been  purchased  by  the  plaintiffs  on  the  basis  of  a
invoice/voucher dated 22.8.2008 and the said fact pointed to the  possession
of the suit flat by the plaintiffs and, in fact, demolished the case of  the
defendants that the first plaintiff and  the  deceased  had  separated  some
time in the middle of the calendar year 2009.  
The passports issued  to  the
plaintiffs in 2009 recording the address of the suit  flat;  the  HDFC  bank
statement of plaintiff No. 1;  the  ICICI  bank  Credit  Card  Statement  of
plaintiff No. 1 during the relevant time, all indicating the address of  the
suit flat were duly relied upon by the Appellate  Court  in  coming  to  its
conclusion.   
The  Appellate  Court  also  relied  on  an  application  form
submitted (before the Appellate Court) by the second plaintiff on  11.8.2011
for admission  in  the  11th  standard  in  H.R.  College  of  Commerce  and
Economics at Dinshaw Vachcha Road, Church Gate, Mumbai which was  signed  by
the deceased Ibrahim Khan himself giving the address of the suit office  and
the suit flat.  
The version  of  the  plaintiffs  that  the  visiting   card
showing her office at Ashoka Centre was  a  forged  document  and  also  the
claim that the plaintiff had used the said premises temporarily as the  suit
office was under renovation was accepted by the learned Appellate  Court  as
sufficient explanation to counter the stand taken  by  the  defendants.   
On
the aforesaid basis the order of the learned Trial Judge was found  fit  for
reversal and refusal of interim relief to the  plaintiffs  was  held  to  be
unjustified. 
Accordingly, interim relief(s) was  granted in the appeal.
11.    We  have  heard  Mr.  V.  Krishnamurthy,  Senior  Advocate  for   the
appellants and Mr. Shyam Divan, Senior Advocate for respondents  No.  1  and
2.

12.   A proceeding under Section 6 of  the  Specific  Relief  Act,  1963  is
intended to be a summary proceeding the object of  which  is  to  afford  an
immediate remedy to an aggrieved party to reclaim  possession  of  which  he
may  have  been  unjustly  denied  by  an  illegal  act  of   dispossession.

Questions of title or better  rights  of  possession  does  not   arise  for
adjudication in a suit under Section 6 where the only issue required  to  be
decided is as to whether the plaintiff was in possession  at  any  time  six
months prior to the date of filing of the  suit.   
The  legislative  concern
underlying Section 6 of the SR Act is to provide a quick remedy in cases  of
illegal dispossession so as to discourage litigants  from  seeking  remedies
outside the arena of law.  
The  same  is  evident  from  the  provisions  of
Section 6(3) which bars the remedy of an appeal or even a review  against  a
decree passed in such a suit.
13.   While the bar under Section 6(3) of the SR Act may not  apply  to  the
instant case in view of the initial forum in which the suit  was  filed  and
the appeal arising from the interim order being  under  the  Letters  Patent
issued to the Bombay High Court, as held by a  Constitution  Bench  of  this
Court P.S. Sathappan (Dead) by Lrs. v. Andhra Bank Ltd. & Ors.[1],  what  is
ironical is that the correctness of the  order  passed  in  respect  of  the
interim entitlement of the parties has reached this Court under Article  136
of the Constitution.  
Ordinarily and in the normal  course,  by  this  time,
the suit itself should have  been  disposed  of.   Tragically,  the  logical
conclusion to the suit is no where in sight and it  is  on  account  of  the
proverbial delays that have plagued the  system  that  interim  matters  are
being contested to the  last  court  with  the  greatest  of  vehemence  and
fervour. 
Given the ground realities of the situation it is neither  feasible
nor practical to take the view that interim matters, even  though  they  may
be inextricably connected with the merits of the main  suit,  should  always
be answered by maintaining a strict neutrality,  namely,  by  a  refusal  to
adjudicate.  
 Such  a  stance  by  the  courts  is  neither   feasible   nor
practicable. Courts, therefore, will  have  to  venture  to  decide  interim
matters on consideration of issues that are best left  for  adjudication  in
the full trial of the suit. In view of the inherent risk in performing  such
an exercise which is bound to become delicate in most cases  the  principles
that the courts must follow in this regard are  required  to  be  stated  in
some detail though it must be made clear  that  such  principles  cannot  be
entrapped within any straitjacket formula or any precise  laid  down  norms.
Courts must endeavour to find out  if  interim  relief  can  be  granted  on
consideration of issues other than those involved in the main suit and  also
whether partial interim relief would satisfy the ends of justice till  final
disposal of the matter.
The consequences  of  grant  of  injunction  on  the
defendant if the plaintiff is to lose the suit  alongwith  the  consequences
on the plaintiff where injunction is refused  but  eventually  the  suit  is
decreed has to be carefully weighed and  balanced  by  the  Court  in  every
given case. Interim reliefs  which  amount  to  pre-trial  decrees  must  be
avoided  wherever possible.
 Though experience has shown  that  observations
and clarifications to the effect that the findings recorded are prima  facie
and tentative, meant or intended only for deciding the  interim  entitlement
of the  parties  have  not  worked  well  and  interim  findings  on  issues
concerning the main suit has had a telling effect in the  process  of  final
adjudication it is here that strict exercise of judicial discipline will  be
of considerable help  and  assistance.
The  power  of  self-correction  and
comprehension of the orders of superior forums  in  the  proper  perspective
will go a long way in resolving the dangers inherent in deciding an  interim
matter on issues that may have a close connection with those arising in  the
main suit.

14.   There is yet another dimension to the issues arising  in  the  present
appeal.
The interim relief granted  to  the  plaintiffs  by  the  Appellate
Bench of the High Court in the present case  is  a  mandatory  direction  to
handover possession to the plaintiffs. 
Grant  of  mandatory  interim  relief
requires the highest degree of satisfaction of the Court; much  higher  than
a case involving grant of prohibitory injunction.  
It  is,  indeed,  a  rare
power, the governing principles whereof would hardly require  a  reiteration
inasmuch as the same which had been evolved by this Court in  Dorab  Cawasji
Warden vs. Coomi Sorab Warden and Others[2] has come to be  firmly  embedded
in our jurisprudence.  Paras 16 and 17 of  the  judgment  in  Dorab  Cawasji
Warden (supra), extracted below, may be usefully remembered in this regard:
         “16. The relief of interlocutory  mandatory  injunctions  are  thus
         granted generally to preserve or restore the status quo of the last
         non-contested status which preceded the pending  controversy  until
         the final hearing when full relief may be granted or to compel  the
         undoing of  those  acts  that  have  been  illegally  done  or  the
         restoration of that which  was  wrongfully  taken  from  the  party
         complaining. But since the granting of  such  an  injunction  to  a
         party who fails or would fail to establish his right at  the  trial
         may cause great injustice or irreparable harm to the party  against
         whom it was granted or alternatively not granting of it to a  party
         who succeeds or would succeed may equally cause great injustice  or
         irreparable harm, courts have evolved certain guidelines. Generally
         stated these guidelines are:
                  (1)  The plaintiff has a strong case for trial.  That  is,
              it shall be of a higher standard than a prima facie case that
              is normally required for a prohibitory injunction.
                  (2)  It is necessary to  prevent  irreparable  or  serious
              injury which normally  cannot  be  compensated  in  terms  of
              money.
                  (3)  The balance of convenience is in favour  of  the  one
              seeking such relief.


         17. Being essentially an equitable relief the grant or  refusal  of
         an interlocutory mandatory injunction shall ultimately rest in  the
         sound judicial discretion of the court to be exercised in the light
         of the facts and circumstances  in  each  case.  Though  the  above
         guidelines are neither exhaustive nor complete or  absolute  rules,
         and there may be exceptional circumstances needing action, applying
         them as prerequisite for the grant or refusal of  such  injunctions
         would be a sound exercise of a judicial discretion.”


15.   In a situation where the learned Trial Court  on  a  consideration  of
the respective cases of the parties and the documents laid before it was  of
the view that the entitlement of the  plaintiffs  to  an  order  of  interim
mandatory injunction was in serious doubt, the  Appellate  Court  could  not
have interfered with the exercise of discretion by the learned  Trial  Judge
unless such exercise was found to be palpably incorrect  or  untenable.  The
reasons that weighed with the  learned  Trial  Judge,  as  already  noticed,
according to us, do not indicate that the  view  taken  is  not  a  possible
view. The Appellate Court, therefore, should not have substituted its  views
in the matter merely on the ground that in its  opinion  the  facts  of  the
case call for a different conclusion. Such an exercise is  not  the  correct
parameter for exercise of jurisdiction while hearing  an  appeal  against  a
discretionary order.  While we must not be understood to have said that  the
Appellate  Court  was  wrong  in  its  conclusions  what  is  sought  to  be
emphasized is that as long as the view of the Trial  Court  was  a  possible
view the Appellate Court should not have interfered with the same  following
the virtually settled principles of law in this regard as laid down by  this
Court in Wander Ltd. v. Antox India (P) Ltd.[3]  Para 14  of  the  aforesaid
judgment which is extracted below would amply sum up the situation:


        “14. The appeals before the Division Bench were against the exercise
        of discretion by the Single Judge. In such  appeals,  
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 if the one reached by that  court
        was reasonably possible on the material. 
The appellate  court  would
        normally not be  justified  in  interfering  with  the  exercise  of
        discretion under  appeal  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.  
After
        referring  to  these  principles  Gajendragadkar,  J.  
in   Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721)


            “... These principles are well  established,  but  as  has  been
         observed by Viscount Simon in Charles Osenton  &  Co.  v.  Jhanaton
         ‘...the law as to the reversal by a court of  appeal  of  an  order
         made by a judge below in the exercise of  his  discretion  is  well
         established, and any difficulty that arises  is  due  only  to  the
         application of well settled principles in an individual case’.”


              The appellate judgment  does  not  seem  to  defer  to    this
         principle.”




16.   Though the above discussions would lead us to the conclusion that  the
learned Appellate Bench of the High Court was  not  correct  in  interfering
with the order passed by the learned Trial Judge we wish to  make  it  clear
that our aforesaid conclusion is not an expression of  our  opinion  on  the
merits of the controversy between the parties.  
Our  disagreement  with  the
view of the Division Bench is purely  on  the  ground  that  the  manner  of
exercise of the appellate power is not consistent with the law laid down  by
this Court in the case of Wander Ltd. (supra).  
Accordingly,  we  set  aside
the order dated  09.10.2012 passed by the  Appellate  Bench  of  the  Bombay
High Court and while restoring the order dated  13.04.2012  of  the  learned
Trial Judge we request the learned Trial  Judge,  or  such  other  court  to
which the case may, in the mean time, have been transferred  to  dispose  of
the main suit as  expeditiously  as  its  calendar  would  permit  with  the
expectation that the same will be possible within a  period  of  six  months
from the date of receipt of this order.  
The appeal shall stand disposed  of
in terms of the above.


                                       ...…………………………J.
                                        [P. SATHASIVAM]



                                        .........……………………J.
                                        [RANJAN GOGOI]
New Delhi,
January 24, 2013.

-----------------------
[1]    (2004) 11 SCC 672
[2]    (1990) 2 SCC 117
[3]    1990 (Supp) SCC 727

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