- (1.) S. R. Singh, J. Present petition has its origin in the appellate order dated 20-3-1995, passed by the District and Sessions Judge, Hardwar in Civil Misc. Appeal No. 68 of 1994, which was preferred impugning the order dated 17- 12-1994 whereby the Munsif, Hardwar who had earlier granted the ad-interim injunction under Order XXXIX, Rule 1, C. P. C. recalled the same and rejected the application under Order XXXIX, Rule 1 CPC after hearing both the parties. As a matter of fact, the ad-interim injunction was initially granted ex parte.
(2.) SRI R. K. Jain, learned counsel appearing for the plaintiff-respon dents opted out of filing counter- affidavit and expressed that the matter may be heard and disposed of finally at this stage itself. Accordingly, learned counsel appearing for the parties were heard. A perusal of the order dated 17-12-1994 passed by learned Munsif, Hardwar would indicate that upon consideration of the facts and circum stances of the case, the learned Munsif deduced that the plaintiff had failed to make out a prima facie case for grant of injunction and further also that the balance of convenience leaned in favour of the defendants and there was no question of any irreparable injury being occasioned to the plaintiff in the event of the injunction being refused to them. The order passed by the learned Munsif further unfolds that he adverted himself to various materials placed on the record and the arguments advanced on behalf of the parties but a perusal of the appellate judgment would be eloquent of the fact that the appellate court a marked upon appraisal of materials on record wearing the mantle of an original court without addressing itself to the reasons assigned by the trial court in support of its order dated 17-12-1994. Indubitably, the power of appellate court is co-extenensive with that of the trial court but it is equally well settled that in an appeal directed against discretionary order, the appel late court is supposed to address itself to the reason assigned by the trial court if it seeks to upset the judgment/order of the trial court. A discretion ary order passed by the trial court on proper self direction to the factors relevant to exersise of power under Order XXXtx, Rule 1 C. P. C. , cannot be interferred with in appeal under Order XLIII, Rule 1 C. P. C, except on a categorical finding that the order appealed against, was either passed out without proper self-direction to the relevant factor or it was otherwise illegal and perverse. In Svenska Handolsbanken v. Indian Charge Chrome, JT 1993 (6) SC 189 p. 203, it has been held by the Supreme Court that whenever an appeal is heard, it is the duty of the appellate court to examine the finding of the trial court and if the findings of the trial court a not correct to deal with it. In the instant case, the appellate court has re-appraised the material stepping into the shoes of trial court and without carping at reasons assigned by the trial court, it proceeded to reverse the order passed by the trial court. The learned District Judge has not dealt with the findings record ed by the trial court and rather, he has appraised the evidence independently and supplanted finding recorded by the trial court by his own findings to shore up the order impugned in this petition. The approach of the learned District Judge in the instant case, in my opinion, is not sanctified by law. In my opinion the appellate order cannot be allowed to be sustained in law.
(3.) ACCORDINGLY, the petition succeeds and is allowed. The impugned order dated 20-3-1995 is quashed. The learned District Judge shall re-admit the appeal to its number and dispose of the same in accordance with law expediuously, if possible within a span of four months. Let a copy of this order be supplied to the counsel for the parties within a week. Petition allowed. .;