G M GOPALAKRISHNA Vs. A S MACHAYYA
HIGH COURT OF KARNATAKA
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(1.)The petitioner before this Court was the plaintiff in O. S. No. 333 of 1967 in the Court of the Munsiff at Mercara. The plaintiff filed a suit for declaration that the foot path shown in the plan, is a pedestrian footpath, and not a public road for vehicular traffic, and for a permanent injunction restraining the defendants from using the same and from removing the gate put up by him on the said footpath. The trial Court granted a temporary injunction prayed for by the plaintiff. In the appeal filed by the defendants against the said order, the learned Civil Judge, Mercara, vacated the said order of temporary injunction. This revision is directed against the said order passed by the learned Civil Judge.
(2.)Sri V. Krishna Murthy, learned Counsel appearing on behalf of the petitioner, has contended that when the order of the trial Court was reasonably possible, it was not proper for the appellate Court to interfere with the discretionary order of temporary injunction passed by the trial Court. He argues the basic facts have been found by the trial Court justifying the issue of temporary injunction. There is no dispute that the petitioner is the owner of the estate through which this footpath runs. The trial Court has held that the plaintiff has made out a prima facie case. It has exercised its discretion properly and the appellate Court acted in the exercise of its jurisdiction with material irregularity in interfering with the order of the trial Court. It is contended by Sri Krishna Murthy that the plan and the report of the Commissioner indicate that it is only a footpath. This footpath was widened into a road only in 1951 by the plaintiff's father for his own use and the members of the public had no right to take vehicular traffic through this road. Sri Krishna Murthy has strongly relied on a number of decisions of his Court reported in (1965) 1 Mys LJ 370 = (AIR 1965 Mys 310), (1968) 1 Mys LJ 552, C. R. P. No. 1083 of 1963 (Mys), C. R. P. No. 1091 of 1968 (Mys) and 1964 Mys LJ (SN) 80, in support of his contention.
(3.)The above mentioned decisions of this Court clearly lay down that the granting or refusing to grant an order of temporary injunction is within the judicial discretion of the trial Court. What the appellate Court has to consider is whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. If the conclusions on the basic facts arrived at by the trial court are reasonably possible on the materials placed before it, it is not proper for the appellate Court to disagree with the conclusions of the trial Court and interfere with the discretion of the trial Court. If there is no error in the order of the trial Court and if the appellate Court interferes with the said order, it will be exercising its jurisdiction with material irregularity calling for interference in revision by the High Court. This position of law is well settled and the learned Counsel for the respondents has not disputed the legal position.
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