KHAN, J. - (1.) THIS revision petition is filed under S. 115 of the C. P. C. against the judgment and order dated 7. 10. 1991, passed by the learned Addl. Distt. Judge, Dholpur, in Civil Misc. Appeal No. 7/1990.
(2.) SHRI Nawab Singh, the deceased plaintiff predecessor-in- title of the non-petitioners filed a suit in the Court of learned Munsiff, Badi, that the present petitioners wanted to oust him from his peaceful possession over the land in suit. He prayed for the interim relief of temporary injunction through an application filed under O. XXXIX Rules 1 and 2 CPC. The learned Munsiff, found no prima-facie case for grant of such relief in his favour. In appeal, however the learned Addl Distt. Judge, held that a prima-facie case for interim relief did exist in favour of the plaintiff-non-petitioner and accordingly issued an ad-interim injunction restraining the present petitioner from interfering with his possession over the property in question. Despite notice of hearing, none put appearance for the plaintiff-non-petitioner. It being a revision petition, I heard the learned counsel for the petitioners and went through the material placed before me on record. The main contention of the learned counsel for the petitioners is that there was absolutely no evidence to establish the prima-facie case in favour of the non-petitioner so as to entitle him for the grant of equitable and discretionary relief Learned counsel for the petitioners submitted that on the material placed before him and in the facts and circumstances of the case, the learned Munsiff, exercised his discretion judiciously and not arbitrarily and therefore, the learned Appellate-Court was not justified at all in substituting his own satisfaction for the satisfaction of the learned Munsiff. Learned counsel for the petitioners led me through the report of the Commissioner and highlighted the fact that there was ample evidence in the case supporting the petitioners possession over the land in suit and there was none in favour of the plaintiff-non-petitioner and therefore, the discretionary jurisdiction should not have been exercised by the appellate Court for the benefit of the plaintiff-non-petitioner. I find substance in the arguments advanced by the learned counsel for the petitioners. The only evidence which seems to be in favour of the plaintiff-non-petitioner was that a permission was. granted by the Gram Panchayat, allowing the deceased non-petitioner to raise certain construction over the plot in question. It appears that in the course of the proceedings of the suit the trial-court had issued direction for local inspection by the Commissioner under O. XXXIX R. 7 of the Code of Civil Procedure. The Commissioner, appears to have reported that the land in suit lies in front of the house of the petitioners and on the back of the house of the non- petitioners and a window of the upper storey of the non- petitioner's house opens on the land in question. The Commissioner, further appears to have reported that just adjoining the back wall of the non-petitioners, the petitioners had raised some sort of stone wall and that the cots and cattle huts belonging to the petitioners were found present at the time of spot inspection. The facts found on spot inspection could have led the learned trial-court not to exercise his discretionary powers for the benefit of the non-petitioner. Therefore, it cannot be said that the learned Munsiff had acted arbitrarily or capaciously in exercise of the discretionary powers vested in him. In view of the facts found at that stage of the proceedings, the learned Munsiff was justified in not granting equitable and discretionary relief to the plaintiff-non-petitioner. Since the learned trial-court had exercised its discretion judiciously and not arbitrarily the learned appellate-court was not at all justified in substituting his own discretion and satisfaction for the discretion and satisfaction of the trial-court, particularly, when were no compelling reasons for doing so. In view of the above, the order of the learned appellate court is required to be set-aside and that of the trial court is restored. In the result, the revision petition is allowed. The order of the learned Addl. Distt. Judge, Dholpur dated 7. 10. 1991, is hereby set-aside with costs. . ;