YADAV, J. - (1.) THE instant revision petition arises out of the order dated 21. 7. 1995 passed by the learned District Judge, Jaisalmer in Civil Misc. Appeal No. 4/95 whereby the appeal filed against the order of learned Civil Judge (Junior Division)-cum'-Judicial Magistrate, Jaisalmer dated 18. 4. 95 was set aside and appeal was allowed by granting temporary injunction against the revisionist to the effect that Panchayat Bhawan under construction would not be constructed till disposal of the Original Civil Suit pending in the court of learned Civil Judge (Jr. Division)-cum-Judicial Magistrate, Jaisalmer.
(2.) I have heard learned counsel for the parties and critically gone through the orders passed by both the courts-below. It is apparent from perusal of the order dated 18. 4. 95 passed by the learned trial court that the trial court has recorded positive finding to the effect that the plaintiff- opposite-parties No. l to 7 failed to establish a prima facie case, balance of convenience and irreparable loss in their favour, therefore, the temporary injunction under 0. 39 rr. 1 and 2 CPC was refused. Aggrieved against the order dated 18. 4. 95, a Miscellaneous Appeal was preferred before the learned Appellate Court, which has set aside the aforesaid finding recorded by the learned trial court and held that the plaintiff-opposite-parties have established a prima facie case, balance of convenience and irreparable injury, therefore, it has granted temporary injunction under 0. 39 rr. 1 and 2 CPC. It must be remembered that discretion exercised by the learned trial court in granting or refusing temporary injunction, cannot be substituted by the learned appellate court or revisional court lightly unless it is established before the learned appellate court or revisional court that the trial court has either granted or refused temporary injunction capriciously, per versely and against the sound principle of law. In my considered opinion, in the present case, none of the grounds stated above had been made out by the plaintiff-opposite-parties before the learned appellate court yet the learned appellate court has set aside the discretionary order passed by the learned trial court and substituted by its own discretion granting temporary injunction under 0. 39 rr. 1 and 2 CPC in favour of the plaintiff- opposite parties No. l to 7. A close scrutiny of the order dated 21. 7. 95 passed by the learned appellate court granting temporary injunction under 0. 39 rr. 1 and 2 CPC to the plaintiff-opposite parties reveals that the learned appellate court has substituted his own discretion in place of discretion exercised by the learned trial court while it was legally incumbent upon it only to consider whether the view taken by the learned trial court is a possible view on the evidence on record.
(3.) SINCE grant of temporary injunction is in the nature of equitable relief, therefore, existence of prima facie case alone is not sufficient but other two conditions precedent evolved by the courts about the balance of convenience and irreparable injury are also required to be established before setting aside the order passed by the learned trial court. In my considered opinion, although the learned appellate court meticulously recorded a finding about existence of prima facie case but it has not properly address itself giving cogent and convincing plausible reasons about balance of convenience and irreparable injury. The learned appellate court in the present case without meeting the reasons given by the learned trial court on the points of balance of convenience and irreparable injury was substituted its discretion in place of discretion exercised by the learned trial court which is legally not sustainable. Whenever and wherever the appellate court considers it proper to set aside a discretion exercised by the learned trial court either granting or refusing temporary injunction, it is obligatory to meet the reasons given by the learned trial court. It is true where the appellate court considers it legally proper to maintain the discretion exercised by the learned trial court either granting or refusing temporary injunction in such cases meeting of reasons in thread-bare is not necessary and over-all discussion indicating its application of mind would be sufficient. In my humble opinion, before granting temporary injunction under Q. 39 rr. 1 and 2 CPC, learned appellate court was required to be satisfied about comparative mischief, hardship or inconvenience likely to occur from refusing the relief must be greater than that, which would be likely to arise from granting it. Learned District Judge while granting temporary injunction under 0. 39 rr. l and 2, CPC substituting the discretion of the learned trial court was expected to weigh conflicting probabilities and to exercise discretion judicially and judiciaous-ly. In my considered opinion, learned appellate court has failed to weigh the need of the plaintiff-opposite parties against the need of the defendant-revisionist while determining where the balance of convenience lies. I am not satisfied with the finding of the balance of convenience in favour of the plaintiff-opposite-parties recorded by the learned appellate court as well as finding about threatened irreparable injury about to be caused to the plaintiff-opposite-parties. ;