Appellate Court Cannot Substitute Trial Court’s Discretionary Findings Under Order 43 CPC Unless Order Is Perverse | Order 43 CPC - Appellate Jurisdiction : HP HC

An appellate bench cannot replace a trial judge’s discretionary decision on an Order 39 application unless the lower order is perverse, preserving the trial court’s authority in specific relief matters. This limits higher courts from rewriting factual findings, affecting parties seeking interim injunctions under the Specific Relief Act.

Cassie News Network•

Jul 31, 2026, 4:00 PM(Updated: Nov 3, 2026)

•3 min read

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The Himachal Pradesh High Court has reaffirmed the limited scope of appellate jurisdiction under Order 43 of the CPC, holding that an appellate court cannot re-evaluate evidence or substitute the trial court’s discretionary findings unless the lower court’s order is perverse. The decision sets aside a prior appellate order and restores the trial court’s dismissal of an application under Order 39 Rules 1 and 2 CPC.

Background & Facts

The Dispute

The petitioners, Nirmala Thapa & Anr., filed a civil suit (CMA No. 20/D/2022) against the respondent, Akshay Thapa, seeking cancellation of a Family Settlement Deed dated 15.02.2021, mutation entries No. 2349 (12.11.2020) and No. 2377 (25.02.2021), and a Will dated 15.02.2019. The suit land comprised Khata No. 228, Khatauni No. 400, Khasra Nos. 1686/358 and 360 (00-09-87 hectares) at Mohal Sidhpur, Mauza Khaniyara, Tehsil Dharamshala, District Kangra, H.P. The petitioners also sought a permanent prohibitory injunction restraining the defendants from alienating the suit land.

Key Facts

15.02.2021 - Family Settlement Deed executed, forming the basis of the suit.
12.11.2020 - Mutation No. 2349 of inheritance recorded on the basis of the Family Settlement Deed.
25.02.2021 - Mutation No. 2377 recorded and sanctioned.
15.02.2019 - Will executed by the testator (Sh. Birender Singh Thapa) in favour of Defendant No. 1.
13.11.2018 - Earlier Will dated, granting Defendant No. 1 a life-interest in the suit land.
20.01.2020 - Predecessor-in-interest of the parties expired.
15.09.2019 - Will dated 15.02.2019 allegedly executed in favour of Defendant No. 2.
20.01.2024 - Trial Court (Civil Judge, Court No. 1, Dharamshala) dismissed the application under Order 39 Rules 1 and 2 CPC.
02.06.2025 - First Appellate Court (District Judge, Kangra) allowed the appeal and set aside the trial court’s order, directing that the defendants be restrained from alienating the suit land.
30.07.2026 - Himachal Pradesh High Court delivered the present judgment.

Procedural History

20.01.2024: Trial Court dismissed the application under Order 39 Rules 1 and 2 CPC.
02.06.2025: First Appellate Court allowed the appeal, set aside the trial court’s order, and ordered a status-quo restraining the defendants.
30.07.2026: Petition filed under Article 227 of the Constitution; High Court heard and delivered the judgment.

Parties' Positions

Petitioners argued that the appellate court exceeded its jurisdiction, that the trial court’s discretion was exercised correctly, and that the order was not perverse.
Respondent contended that the appellate court was right to intervene because the trial court had erred in dismissing the application and that the order was arbitrary.

Relief Sought

The petitioners sought (i) setting aside the appellate order dated 02.06.2025, (ii) restoration of the trial court order dated 20.01.2024, (iii) dismissal of the application under Order 39 Rules 1 and 2 CPC, and (iv) continuation of the status-quo restraining alienation of the suit land.

Frequently Asked Questions

Order 43 Rule 1 provides that an appeal lies only against orders made under Rules 1, 2, 2A, 4 and 10 of Order 39 CPC. The appellate court may examine whether the lower court’s discretion was exercised arbitrarily, capriciously or perversely, but it cannot re-appreciate evidence or substitute its own discretion.

An appellate court may set aside a discretionary order only if the order is found to be perverse - i.e., the findings are not supported by evidence, are against the weight of evidence, or the discretion was exercised in a manner that is arbitrary, capricious or contrary to law, as explained in Ramakant Ambalal Choksi v. Harish Ambalal Choksi and Wander Ltd. v. Antox India P. Ltd..

No. The appellate court must first be satisfied that the lower court’s decision is not merely erroneous or a possible alternative view, but that it is perverse in the sense defined by the Supreme Court - a finding that is against the weight of evidence or based on no evidence at all.

Appellate Court Cannot Substitute Trial Court’s Discretionary Findings Under Order 43 CPC Unless Order Is Perverse | Order 43 CPC - Appellate Jurisdiction : HP HC