Allahabad High Court
Rajendra Prasad Agrawal & Anr. vs Samarpan Varishtha Jan Parisar Thru. ... on 1 October, 2021
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- MISC. SINGLE No. - 20786 of 2020 Petitioner :- Rajendra Prasad Agrawal & Anr. Respondent :- Samarpan Varishtha Jan Parisar Thru. Manager &Ors,Gayatri Pa Counsel for Petitioner :- Sudeep Kumar,Avdhesh Kumar Pandey,Radhika Verma Counsel for Respondent :- C.S.C.,Dr.L.P.Misra,J.K.Sinha,Namit Sharma,Rohit Kumar Verma,Satyanshu Ojha ****** Hon'ble Jaspreet Singh,J.
1. The petitioners before this Court are abandoned parents, who have been forsaken by their own children and have been residing in an old age home. As if, this was not enough, the old age home is also seeking the ouster of the petitioners and it is in this backdrop that the petitioners had instituted a suit for permanent injunction before the trial court seeking an injunction to restrain the management of the old age home from dispossessing the petitioners from their room allotted to them, without due process of law.
2. An interim injunction is a striking remedy yielded by contemporary Courts. With prolific litigation in most of the Courts, interim injunction becomes a very important component of a litigation. So also in this case an application for interim injunction was allowed by the trial Court, but the decision has been reversed by the lower Appellate Court and being aggrieved, the petitioners have knocked the doors of this Court by means of the instant petition challenging the order passed by the lower Appellate Court in Misc. Civil Appeal No.7/2020 dated 20.10.2020.
3. The lower Appellate Court, while allowing the Misc. Civil Appeal No.7/2020 of the defendants/respondents No.1, 2 and 3, before this Court, has set aside the order of injunction passed by the trial Court dated 17.12.2019 in Regular Suit No.2938/2019 and rejected the application under Order 39 Rules 1 and 2 CPC.
4. In order to appreciate the controversy involved in the instant petition, the relevant facts are that the petitioners, who are the plaintiffs in Regular Suit No.2938/2019 instituted a suit for permanent injunction before the Court of Civil Judge (Junior Division), Hawali, Lucknow.
5. The petitioners in their suit pleaded that they are bonafide and lawful occupants of Room No.108, situate in the old age home being run under the name and style of "Samarpan", of which the defendants No.2 and 3 are the Senior Management Officials.
6. It is the case of the petitioners that the said old age home is being run by Gayatri Parivar Trust after having obtained a lease from the Nagar Nigam, Lucknow, for managing and running an old age home for senior citizens having its own manual of instructions.
7. The petitioners state that they have paid a sum of Rs.75,000/- as a security and have been paying the monthly charges for which receipts have been issued by the old age home.
8. They are in settled possession of Room No.108 and some time in August, 2019, the Management started interfering in the peaceful possession and occupation of the petitioners with a view to evict the petitioners from the said room, hence, they started creating false grounds including raising questions on the behaviour of the petitioners and more particularly relating to the mental state of the petitioner No.2.
9. It has also been pleaded that since the petitioners had raised certain objections and complaints regarding running, management and upkeep of the said old age home and the difficulties being faced by the petitioners and other senior inmates, which have been ignored. Instead of correcting its management and upkeep, the old age home, vindictively, gave a notice to the petitioners regarding their behaviour and intemperate language and aggression of the petitioner No.2 and even threatened that they would be evicted from the old age home.
10. It is in this backdrop that the suit for permanent injunction was filed and an application under Order 39 Rules 1 and 2 CPC was also moved seeking ad-interim injunction to the effect that the petitioners may not be dispossessed from Room No.108, situate in the old age home, Samarpan at Adil Nagar, Lucknow, without due process of law.
11. The trial court, issued notices to the defendants of the suit, who are the respondents No.1 to 4 before this Court. The suit came to the contested by the old age home and its Senior Management Officials, who filed their objections to the application under Order 39 Rules 1 and 2 CPC and raised a defence that the allegations, as made in the plaint as well as in the application under Order 39 Rules 1 and 2 CPC, were not correct.
12. It was stated by the old age home, that the petitioners were admitted in the old age home in the year 2016 after complying with due formalities including receiving the security amount and monthly charges and consequently were allotted Room No.108. It was also stated that right from inception, the petitioner No.2 was aggressive and used abusive language and used to pick up quarrel with the staff of the old age home as well as created an atmosphere which was not conducive for the well-being of the other inmates of the old age home.
13. It was also pleaded by the contesting respondents that initially the petitioners apologized for their behaviour and undertook to improve the same, however, with passage of time, the behaviour became worse so much so that the staff members as well as the other inmates made oral as well as written complaints against the petitioners.
14. The contesting respondents issued a notice to the petitioners dated 08.08.2018 and 29.09.2019 and in this notice it was clearly indicated that in terms of Rule 8, 9 and 19 of the Instructions Manual, the membership of the petitioners was being terminated and this may be treated as a thirty days' notice requiring the petitioners to vacate the Room No.108. This was followed by another notice dated 30.10.2019 and 22.11.2019. It was also pleaded that despite the aforesaid notices, the petitioners did not vacate.
15. An Advisory Board also constituted in terms of the grant of lease, and this matter was even placed before the said Advisory Board, which opined that a month's time be granted to the petitioners to improve their behaviour and further the petitioner No.2 may be examined by a competent psychiatrist and in case the situation does not improve, then, an appropriate decision be taken and the petitioners be asked to vacate the room in terms of Rule 21. It was thus urged that despite the aforesaid precautions, the petitioners did not vacate nor the behaviour improved rather the petitioners have instituted the suit for permanent injunction and in the aforesaid backdrop their application for injunction deserves to be dismissed.
16. The trial court by means of its order dated 17.12.2019 considering the respective submissions and the pleadings on record found that insofar as the possession of the petitioners is concerned, the same was not disputed. Their admission in the old age home was also in accordance with the Rules. Hence, there was a prima facie case. Insofar as the issue regarding mental status of the petitioner no.2 is concerned and whether they can be asked to leave are all contentious issues which can be decided at the time of trial. Also, holding that both the balance of convenience and irreparable injury was also tilted in favour of the petitioners, hence, allowed the application for temporary injunction and restrained the contesting defendants from evicting the petitioners from Room No.108 of the old age home without due process of law, till the disposal of the suit.
17. The defendants No.1, 2 and 3 of the suit preferred a Misc. Civil Appeal under Order 43 Rule 1(r) CPC before the District Judge, Lucknow which was admitted and registered as Misc. Appeal No.07/2020 and was placed before the Additional District Judge, Court No.19, Lucknow for its hearing.
18. The lower Appellate Court after hearing the parties allowed the appeal and set aside the injunction order dated 17.12.2019 and rejected the application for temporary injunction. The reasoning of the lower Appellate Court was that even though the petitioners may have been able to make out a prima facie case, but since for the grant of injunction, the three golden principles of prima facie case, balance of convenience and irreparable injury have to co-exist and the trial court did not deal with the two ingredients of balance of convenience and irreparable injury which was re-assessed by the lower Appellate Court and found that it was not in favour of the petitioners, hence, it not only allowed the appeal but also rejected the application for temporary injunction by means of the judgment and order dated 20.10.2020. Being aggrieved, the petitioners have approached this Court assailing the appellate order.
19. Heard Shri Sudeep Kumar, learned counsel for the petitioners and Dr. L.P. Misra along with Shri Rohit Verma, learned counsel for the respondents No.1 to 3 and the State Counsel for the respondent No.5 and perused the record.
20. The precise submission of Shri Sudeep Kumar, learned counsel for the petitioners is that a relief for injunction is equitable in nature. For grant of an injunction, it is true that three golden ingredients have to exist, however, it was not disputed that the petitioners were in possession of the disputed property i.e. Room No.108 in the old age home and have been residing therein since 2016, thus, the possession therein was settled and in view of the settled possession, the petitioners could not be dispossessed without due process of law.
21. It is further urged that the trial court had categorically recorded a finding that the petitioners had been able to make out a prima facie case and even the balance of convenience was in favour of the petitioners and in case if the interim injunction is not granted, the petitioners would suffer irreparable injury. It is also urged that in cases which involves eviction, demolition of buildings and acts of such nature, once prima facie case is established for the purpose of grant of injunction, the balance of convenience and irreparable injury also automatically lies in favour of the petitioners. In support of his submissions, learned counsel for the petitioners relies upon Para-31 of the decision of the Apex Court in Seema Arshad Zaheer & Ors. vs. Municipal Corporation of Greater Mumbai & Ors., reported in (2006) 5 SCC 282.
22. It is further urged by the learned counsel for the petitioners that at the time when the Court is considering an application for interim injunction, it is not required to hold a mini trial. In the instant case, the possession was admittedly with the petitioners. This proved the prima facie case which was also noticed by the trial court as well as the lower Appellate Court. Once in the given set of facts, the injunction was sought that the petitioners may not be dispossessed without due process of law, it would indicate that balance of convenience was also in favour of the petitioners as in case if the interim injunction was not given, it would be the petitioners, who would suffer greater hardship, being abandoned parents and senior citizens who would have been put on the street overnight and this would also result in an irreparable injury while all contentious matters were required to be tested in trial, where all pleas raised by the defendants could be considered on merits and in any case it would require evidence as it was the defendants who had falsely concocted a plea of mental imbalance of the petitioner no.2 which can only be established by leading evidence and was a pure question of fact and there was no material worth its name to arrive at such a finding on the basis of the affidavits exchanged between the parties.
23. It is also urged that the petitioners had paid a sum of Rs.75,000/- at the time of admission of the petitioners in the old age home. They were medically examined and were found to be both mentally and physically fit. Thus, in the admission form, the petitioners had opted for lifetime stay and though the old age home was not entitled to take more than Rs.25,000/- as security in terms of the condition of lease granted by the Nagar Nigam, Lucknow yet they had charged a higher sum and were also paid the monthly charges but the crux of the controversy arose when the petitioners had made complaints in respect of the functioning of the old age home which was not proper as well as that the complaints and discomfort of the petitioners as well as other inmates was not being attended by the authorities and instead of sorting and fixing the same, the respondents adopted a ruse of intemperate behaviour and mental imbalance of the petitioner no.2 to evict them which was not proper and even otherwise all these issues were questions which could only be decided at the time of final disposal once the parties are permitted to lead their evidence.
24. It has also been urged by the learned counsel for the petitioners that even assuming that the lower Appellate Court was of the view that the balance of convenience and irreparable injury had not been dealt with by the trial court appropriately then it ought to have remanded the matter for a decision a fresh rather than to have rejected the application. In support of his submissions, he has relied upon a decision of the Apex Court in Meera Mishra vs. Satish Kumar & Ors., reported in (2019) 2 SCC 375.
25. It is also urged that even otherwise on a bare perusal of the plaint averments, it is seen that the possession of the petitioners was admitted and the petitioners had clearly indicated that they were seeking injunction solely on the ground of their possession and that they may not be dispossessed without due process of law; hence, once their possession was settled since 2016 and apart from sending the notices, the defendants having not instituted any proceedings to lawfully evict the petitioners, thus, it was clear that in case if the petitioners were not granted the protection the respondents would evict them without adopting due process of law.
26. It is thus urged that the lower Appellate Court erred and misdirected itself from the issue at hand and committed an error manifest on the face of the record and consequently the appellate order deserves to be set aside and the injunction granted by the trial court deserves to be affirmed by this Court. In support of his submissions, learned counsel for the petitioners has relied upon the decisions of the Apex Court in Ranjit Kaur vs. Major Harmohinder Singh & Ors., reported in (2011) 15 SCC 95.
27. Per contra, Dr. L.P. Mishra, learned counsel for the contesting-respondents No.1 to 3 along with Shri Rohit Verma, Advocates have submitted that there is no legal right vested with the petitioners to continue to occupy and retain the room in the old age home. It is further submitted that at best, the status of the petitioners in the old age home was that of a licencee. The Management of the old age home reserved all rights for maintenance and upkeep of the old age home and was also responsible for well-being of its staff and other inmates.
28. It is further urged that the duty of the old age home to take care of elderly and senior citizens is not only confined to the petitioners but it extends to other inmates and residents. The Management of the old age home has never evicted any person. In case of any circumstances which are covered in Rule 8, 9 and 19 of the Instructions, then the old age home reserves the right to issue a month's notice to such inmate and ask the said inmates to leave.
29. In the instant case, the Management had received several complaints from the staff members as well as the other inmates regarding ill-behaviour of the petitioners. The behaviour was such that it fell within the category of mental imbalance. For the aforesaid purpose, the petitioner No.2 was required to undergo an examination by the doctor of the King George's Medical University, Lucknow, Psychiatric Department, who had prescribed medication for anxiety and panic attack as well as for the treatment of depression. The petitioners had interpolated the said prescription and had stated that the petitioner No.2 was not suffering from any psychiatric disorder. This was indicative of the fact that the petitioners were deliberately intending to retain the room and by adopting such sharp tactics had not approached the Court with clean hands and injunction being an equitable remedy could not be extended in favour of such litigants as the petitioners.
30. It has further been urged that though it is not disputed that the petitioners are in possession of Room No.108, but their behaviour has vitiated the congenial atmosphere of the old age home which cause discomfort to other inmates and for the said reasons, the balance of convenience was not in favour of the petitioners. It was further urged that the video recording showing the petitioner no.2 using abusive language followed by threats clearly established that the balance of convenience was not at all in favour of the petitioners and since there were other old age homes where the petitioners can conveniently shift especially where the petitioners have four children in the city of Lucknow itself, hence, they can easily shift and it has also been urged that the petitioners have not being paying the monthly charges/the electricity bill and in the given circumstances, the lower Appellate Court has not committed any error in allowing the appeal and rejecting the application for injunction and thus being findings of fact which does not suffer from any palpable error requiring the intervention of this Court under Article 227 of the Constitution of India and for the said reasons, the petition deserves to be dismissed.
31. It is further urged that the decisions relied upon by the petitioners do not apply in the present case inasmuch as once the licence of the petitioners had been cancelled in accordance with law by serving a thirty days' notice which was also admitted to the petitioners, hence, after the expiry of the said period, the petitioners did not have any right to continue as such they did not even have a prima facie case. Accordingly, in absence of any prima facie case, even the issue of balance of convenience and irreparable injury pales into insignificance and for all the reasons the petition deserves to be dismissed.
32. Before adverting to the respective submissions, it is seen that the question of grant of injunction keeps cropping up in large number of cases and it has been considered in equal strength both by the High Courts as well as the Apex Court.
33. It will be apposite to revisit the settled legal principles and then ascertain as to whether in light of the principles so embodied therein, the order impugned passed by the lower Appellate Court requires any interference or not.
34. The law regarding grant of temporary injunction and interlocutory orders is covered by the Order 39 of the CPC. Upon perusal of Rule 1 of Order 39 CPC, it would indicate that where in any suit, it is proved by affidavit or otherwise- (i) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of the property with a view to defrauding the creditors, (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit; the Court may grant an order of temporary injunction to restrain such acts.
35. It has now been well settled that before a Court grants a temporary injunction, it needs to be satisfied that a person seeking an injunction has a prima facie case in his favour and that the balance of convenience and irreparable injury also lies in his favour.
36. The word "prima facie case" apparently indicates something which at the first impression makes out a triable case. The term "prima facie case" should not be confused with the term "prima facie title" which has to be established at the trial upon permitting the parties to lead evidence. Thus, it means a substantial question which has been raised and which upon first sight needs to be investigated and decided on merits.
37. The word "balance of convenience" denotes that the Court must be satisfied that the comparative mischief and hardship which is likely to be caused to the person seeking injunction is more than the inconvenience likely to be caused to the other party by granting such injunction.
38. The word "irreparable injury" on the other hand guides the Court to be satisfied that the refusal to grant injunction would result in such injury which cannot be compensated in terms of costs or otherwise and the person seeking injunction needs to be protected from the consequences of apprehended injury.
39. The aforesaid three ingredients have been noticed by the House of Lords in the celebrated case of American Cyanamid Co. vs. Ethicon Ltd., reported in 1975 (1) All England Reporter 504. The principles regarding grant of injunction as laid down by the Lord Diplock in Cyanamid case can be summarized as under:-
(1) The plaintiff must first satisfy the court that there is a serious issue to decide and that if the defendants were not restrained and the plaintiff won the action, damages at common law would be inadequate compensation for the plaintiff's loss.
(2) The court, once satisfied of these matters will then consider whether the balance of convenience lies in favour of granting injunction or not, that is, whether justice would be best served by an order of injunction.
(3) The court does not and cannot judge the merits of the parties' respective cases and that any decision of justice will be taken in a state of uncertainty about the parties' rights.
40. The Apex Court in Wander Ltd. & Anr. vs. Antox India P. Ltd., reported in 1990 (Supp) SCC 727 had the occasion to consider the principles regarding grant of injunction and in Paragraphs 9, 13 and 14 of the report has held as under:-
"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the ''balance of convenience' lies."
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."
xxx----xxx-----xxx----xxx-----xxx----xxx-----xxx----xxx-----xxx "13. On a consideration of the matter, we are afraid, the appellate bench fell into error on two important propositions. The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocination as to the quality of Antox's alleged user of the trademark on which the passing-off action is founded. We shall deal with these two separately.
14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] ''...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."
The appellate judgment does not seem to defer to this principle."
41. Once again, the Apex Court in Dalpat Kumar & Anr. vs. Prahlad Singh & Ors., reported in (1992) 1 SCC 719, considering the provisions of Order 39 Rule 1(c) CPC in Paragraphs 4 and 5 of the said report has held as under:-
"4. Order 39 Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing ... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by Section 86(i)(b) of the Amending Act 104 of 1976 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151 CPC to grant ad interim injunction against dispossession. Rule 1 primarily concerned with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
42. Again, in the case of Gujarat Bottling Co. Ltd. & Ors. vs. Coca Cola Co. & Ors., reported in (1995) 5 SCC 545 noticing the English as well as earlier authorities of the Apex Court in Paragraphs 42, 43 and 47 has held as under:-
"42. In the matter of grant of injunction, the practice in England is that where a contract is negative in nature, or contains an express negative stipulation, breach of it may be restrained by injunction and injunction is normally granted as a matter of course, even though the remedy is equitable and thus in principle a discretionary one and a defendant cannot resist an injunction simply on the ground that observance of the contract is burdensome to him and its breach would cause little or no prejudice to the plaintiff and that breach of an express negative stipulation can be restrained even though the plaintiff cannot show that the breach will cause him any loss. [See: Chitty on Contracts, 27th Edn., Vol. I, General Principles, paragraph 27-040 at p. 1310; Halsbury's Laws of England, 4th Edn., Vol. 24, paragraph 992.] In India Section 42 of the Specific Relief Act, 1963 prescribes that notwithstanding anything contained in clause (e) of Section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. This is subject to the proviso that the plaintiff has not failed to perform the contract so far as it is binding on him. The Court is, however, not bound to grant an injunction in every case and an injunction to enforce a negative covenant would be refused if it would indirectly compel the employee either to idleness or to serve the employer. [See: Ehrman v. Bartholomew [(1898) 1 Ch 671 : (1895-99) All ER Rep Ext 1680] ;N.S. Golikari [(1967) 2 SCR 378 : AIR 1967 SC 1098 : (1967) 1 LLJ 740] at p. 389.]
43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests -- (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience" lies. [See: Wander Ltd. v. Antox India (P) Ltd.[1990 Supp SCC 727] , (SCC at pp. 731-32.] In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial."
xxx----xxx-----xxx----xxx-----xxx----xxx-----xxx----xxx-----xxx "47. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings."
43. In Colgate Palmolive (India) Ltd. vs. Hindustan Lever Ltd., reported in (1999) 7 SCC 1, the Apex Court while dealing with the issue of grant of temporary injunction relied upon the earlier decisions and quoted with approved the decision of House of Lords in the case of American Cyanamid Co. vs. Ethicon Ltd., and in Paragraph 24 held as under:-
"24. We, however, think it fit to note herein below certain specific considerations in the matter of grant of interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the court, since the issue of grant of injunction, usually, is at the earliest possible stage so far as the time-frame is concerned. The other considerations which ought to weigh with the court hearing the application or petition for the grant of injunctions are as below:
(i) extent of damages being an adequate remedy;
(ii) protect the plaintiff's interest for violation of his rights though, however, having regard to the injury that may be suffered by the defendants by reason therefor;
(iii) the court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the other's;
(iv) no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case -- the relief being kept flexible;
(v) the issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;
(vi) balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise."
44. In the aforesaid backdrop and the principles as summarized hereinabove, if the facts of the present in light of the submissions made by the parties are considered, it would reveal that the case set up by the petitioners is that they may not be dispossessed without due process of law.
45. Insofar as the factual narration of the facts are concerned, it is not disputed between the parties that the petitioners are in occupation of the Room No.108 in the old age home. It is also not disputed that the petitioners while being admitted in the said old age home had filled up an admission form and at the relevant time, they had been physically and mentally examined and were found to be fit for admission. The admission form also indicates that the petitioners had opted for lifetime stay. Though it is disputed that whether the option for lifetime stay would continue to be till their natural lives or it merely grants them some rights to remain in the old age home which is different than mere casual or short stay, is a debatable question.
46. The said admission form indicates that the mental as well as physical condition of both the petitioners was sound and no abnormality was detected. It is also not disputed that the petitioners had deposited the necessary amount as security and monthly charges for which receipts were issued and have been filed before the Court, however, the issue whether the security amount of a sum of Rs.25,000/- was required to be paid by the petitioners as per the terms of the lease granted by the Nagar Nigam, Lucknow to the old age home or the old age home had charged an amount of Rs.75,000/- in excess of the amount fixed by the Nagar Nigam, Lucknow from the petitioners, is also a disputed question.
47. The record would further indicate, that the admission of the petitioners in the old age home from 2016 till 2019 was peaceful as there is no complaint within the aforesaid period, however, it is only in the month of August, 2019 onwards that there have been complaints against the petitioners. The ground taken by the defendants to seek the ouster of the petitioners is of intemperate behaviour of the petitioner No.2 as well as her mental condition, which is disputed by the plaintiffs and it is submitted that both the petitioners are mentally sound and it is nothing but a garb under which the respondents seek to oust the petitioners. Thus, this issue as well becomes a disputed question.
48. The complaints, which are said to have been made by the staff and the other inmates are also post August 2019 and since they have been disputed by the petitioners and appropriate findings can only be returned after the evidence is led in respect thereto and the only admitted fact is that the petitioners have received the notice issued by the respondents for vacating the old age home by relying upon Rules 8, 9 and 19 of the Instructions prepared for the inmates by the old age home.
49. Reliance has also been placed upon the meeting of the Advisory Board on 26.10.2019 to state that the behaviour of the petitioners was considered by the Advisory Board which is headed by a Retd. Judge of the High Court amongst other persons, wherein a decision was taken to get the petitioner No.2 examined from a psychiatrist and some time be given to them to improve their behaviour and thereafter the decision be taken. Insofar as the medical prescription which has been filed by the respondents for which it is stated that the petitioners have interpolated the same, it is urged that the petitioners were compelled to visit the Department of Psychiatry on 13.11.2018, but was not examined by Dr. Amit Arya. It is stated that the petitioner No.2 was examined by some other doctor, who on the same prescription in his own hand-writing had stated that there was no psychiatric problem. It is also urged by the petitioners that the letter dated 01.02.2020, which has been filed in the petition is not a part of the record of the trial court and apparently with a view to evict the petitioners by all means, the said document has been introduced.
50. Whether the said prescription has been interpolated or not is also a disputed question and this assumes significance for the reason that the ground of the defendants seeking ouster of the petitioners from the old age home is on the basis of the intemperate behaviour and mental imbalance of the petitioner No.2. Noticing that apart from the bare prescription, there is no conclusive or even suggestive finding of any competent doctor indicating the mental imbalance of the petitioner No.2.
51. In this view of the matter, where there are contentious issues and the primary question requiring adjudication is whether the defendants are entitled to seek ouster of the petitioners from the old age home on the ground of intemperate behaviour and mental imbalance and in absence of any cogent evidence upon which an opinion can be formed whether the mental condition of the petitioner No.2 is, as what is being stated by the respondents while on the other hand it has been specifically denied by the petitioners and rather they have attributed motive to the defendants that since the plaintiffs had made a complaint regarding improper functioning of the old age home, hence, the defendants want to oust the petitioners. Such an issue can only be decided after the parties are called upon to lead their respective evidence.
52. Thus, apparently, a prima facie case is made out where the petitioners have raised contentious issues which require adjudication and to return finding on the disputed questions, the parties are required to lead evidence.
53. It will also be relevant to notice that insofar as the possession is concerned, it is not disputed that the petitioners are in possession of Room No.108. It is also not disputed that the admission of the petitioners to the said room was with consent of the defendants and that it was not based on any misrepresentation or forcible entry.
54. There is another angle to look at the situation, as the petitioners are in possession and what they are seeking is an injunction to the effect that they may not be dispossessed without due process of law. Apart from issuing notice by the defendants, there is no material to indicate that the defendants have instituted any proceedings or have taken recourse to any proceedings in law for seeking the lawful ouster of the petitioners from the old age home.
55. In India, the Courts frown upon an act of forcible dispossession. Even the owner has to take recourse to legal methods for seeking ouster of a person. It will be worthwhile to notice the words of Justice Fazal Ali of the Apex Court in Ram Rattan & Ors. vs. State of U.P., reported in (1977) 1 SCC 188 wherein it was held that a true owner has every right to dispossess or throw out a trespasser while a trespasser is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.
56. The Apex Court in Krishna Ram Mahale (dead) by His LRs vs. Mrs. Shobha Venkat Rao, reported in (1989) 4 SCC 131 also struck a similar chord while dealing with an issue of grant of injunction. In the said case, the issue before the Court was whether a licensee whose licence had come to an end, had any right to remain in charge of the licensed premise and whether he could seek an injunction against his unlawful dispossession. The Apex Court held as under:-
"8. . . . It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh [AIR 1968 SC 620 : (1968) 2 SCR 203,208-210] . This Court in that judgment cited with approval the well-known passage from the leading Privy Council case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy [AIR 1924 PC 144 : 51 IA 293, 299 : 23 ALJ 76] where it has been observed (p. 208):
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court."
9. The proposition was also accepted by a Division Bench of this Court inRam Rattan v. State of U.P. [(1977) 1 SCC 188 : 1977 SCC (Cri) 85 : (1977) 2 SCR 232] . The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a tresspasser at all, as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, Defendant 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case."
57. The issue whether a person is in settled possession or not and what meaning can be ascribed to the word "settled possession" came up for consideration before the Apex Court in the case of Rame Gowda (dead) By LRs vs. M. Varadappa Naidu (Dead) By LRs & Anr., reported in (2004) 1 SCC 769 and Justice R.C. Lahoti as his Lordship then was, speaking for the Court and noticing the jurisprudential aspect of the matter and also relying upon a decision of the Privy Council as well as other decisions of the Apex Court, in Paragraphs 5, 7 to 11 of the said report held as under:-
"5. Salmond states in Jurisprudence (12th Edn.), "few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection.... Law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and immediate interests to the wide and long-term interests of society in general. But since an attack on a man's possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be stirred to defend himself with force. The result is violence, chaos and disorder." (at pp. 265-66) "In English law possession is a good title of right against anyone who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law." (Salmond, ibid., pp. 294-95) "Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit)." (Salmond, ibid., p. 295)"
xxx----xxx-----xxx----xxx-----xxx----xxx-----xxx----xxx-----xxx "7. The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being Ramesh Chand Ardawatiya v. Anil Panjwani [(2003) 7 SCC 350] . In between, to quote a few out of several, in Lallu Yeshwant Singh v. Rao Jagdish Singh [AIR 1968 SC 620 : (1968) 2 SCR 203] this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to court and obtain an order for possession before he could eject the lessee. The Court quoted with approval the law as stated by a Full Bench of the Allahabad High Court in Yar Mohd. v. Lakshmi Das [AIR 1959 All 1 : 1958 All LJ 628 (FB)] (AIR at p. 4):
"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause." (AIR p. 5, para 13) In the oft-quoted case of Nair Service Society Ltd. v. K.C. Alexander [AIR 1968 SC 1165 : (1968) 3 SCR 163] this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner.When the facts disclose no title in either party, possession alone decides. The Court quoted Loft's maxim -- "Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)" and said: (AIR p. 1175, para 20) "A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time."
In M.C. Chockalingam v. V. Manickavasagam [(1974) 1 SCC 48] this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale v. Shobha Venkat Rao [(1989) 4 SCC 131] it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat Singh [(1995) 3 SCC 426] this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.
8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn. [AIR 1968 SC 702 : (1968) 2 SCR 455 : 1968 Cri LJ 806] , Puran Singh v. State of Punjab [(1975) 4 SCC 518 : 1975 SCC (Cri) 608] and Ram Rattan v. State of U.P. [(1977) 1 SCC 188 : 1977 SCC (Cri) 85] The authorities need not be multiplied. In Munshi Ram case[AIR 1968 SC 702 : (1968) 2 SCR 455 : 1968 Cri LJ 806] it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case [(1975) 4 SCC 518 : 1975 SCC (Cri) 608] the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession" (SCC p. 527, para 12):
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession.
10. In the cases of Munshi Ram [AIR 1968 SC 702 : (1968) 2 SCR 455 : 1968 Cri LJ 806] and Puran Singh [(1975) 4 SCC 518 : 1975 SCC (Cri) 608] the Court has approved the statement of law made in Horam v. R. [AIR 1949 All 564 : 50 Cri LJ 868] wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property.
11. In the present case the trial court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The trial court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property."
58. Thus, noticing the aforesaid decisions and the settled proposition in respect of grant of an injunction which has been prefaced in the preceding paragraphs, it will be clear that while dealing with an application for injunction, the Court is required to be guided by the principles of prima facie case, balance of convenience and irreparable injury.
59. It is also to be noted that while dealing with the aforesaid three ingredients, the Court must refrain from holding a mini trial. The Courts should make an endeavour to test the relevant pleadings in light of the principles as noted above and if it finds that there is a contestable issue which requires evidence of the parties to be decided and the balance of convenience and irreparable injury is in favour of the party seeking the injunction, then the status be preserved, as at that stage the rights of the parties are in an incohate stage. The Court would require the evidence to determine the rights of the parties which can only be crystallized after trial and can enable the Court to form a definite opinion whether the plaintiff has a case strong enough to enable the Court to pass a decree in his favour and if not, then dismiss the suit.
60. As already stated above, there are contestable issues which require the evidence and merely because the defendants have issued a notice and the thirty days' notice period has expired, it does not mean that the petitioners do not have any right to contest. In case, if the injunction is not granted and the eventuality as appended occurs, then such a situation cannot be reversed or compensated either in terms of costs or otherwise.
61. In the instant case, noticing the fact that an elderly couple who have been abandoned by their own children and are at mercy of destiny and are residing and occupying a room in the old age home, if not protected against forcible dispossession, such injury cannot be compensated nor reversed, hence such injury definitely comes within the ambit of connotation of the words 'irreparable injury'.
62. So also the balance of convenience, if seen in the present situation, would indicate that in case if the injunction is granted, the inconvenience caused to the defendants would be that the plaintiffs will continue to occupy the room and the defendants will have to seek the eviction and its objective of getting the room vacated will be merely postponed. Whereas, in case the injunction is not granted then there is likelihood of the petitioners being dispossessed, which as already noticed above, would not only cause irreparable injury but would also result in extinguishment of the rights of the petitioners and the basic purpose of filing a suit would also stand frustrated.
63. Whereas the lower Appellate Court has adopted a reasoning that the petitioners have three daughters and two brothers in Lucknow, hence it cannot be said that they do not have an alternative accommodation. It also noticed that the petitioners can take accommodation elsewhere and considering the pleadings it found that balance of convenience and irreparable injury was not in favour of the petitioners. The manner in which the lower Appellate Court has considered the issue of grant of injunction and its approach towards the issue of balance of convenience and irreparable injury is not as settled by the Apex Court and noted hereinabove first.
64. Thus, in light of the elaborate discussions and also noticing the dictum of the decisions cited by the petitioners, the Court is of the view that the Appellate Court did not consider the issue of grant of injunction in proper perspective.
65. The Court being conscious of the powers it exercises while dealing with an application of injunction under Order 39 Rules 1 and 2 CPC also has powers to put the parties to such terms and for such a duration of injunction as it may think in terms of sub-rule (2) of Rule 2 to Order 39 CPC, which, for ease of reference reads as under:-
"The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit."
66. In the aforesaid case, the anxiety as expressed by the defendants that the petitioners are not making the payment of the electricity charges and monthly charges, can be taken care of by resorting to the above mentioned provision of Order 39 Rule 2 of sub-rule (2) CPC.
67. It has also been brought to the notice of the Court that during pendency of the instant petition, the respondents had cut the electricity and had stopped providing food to the petitioners and upon an application of the petitioners, a Coordinate Bench of this Court, by means of the order dated 15.04.2021 directed the respondents to provide the petitioners with food arrangement as they were having earlier and were also directed to restore the electricity forthwith.
68. Taking a holistic view of the matter and considering the decision of the lower Appellate Court, this Court finds that the Appellate Court has deviated from consideration of the proposition for grant of injunction and has erred in reversing the judgment and order of the trial court for grant of injunction especially where the remedy of injunction was equitable in nature. In such circumstances, the Court ought to have been slow in interfering with the order which is discretionary and the discretion exercised by the trial Court was not such which could allow the Appellate Court to intervene in the facts and circumstances as adumbrated above.
69. This Court is of the view that necessary ingredients for grant of injunction were present and though it may not have been elaborately dealt by the trial court and though it would have been sound exercise of jurisdiction and discretion if the trial Court would have considered all the three ingredients with little more clarity but nevertheless it was not required for the lower Appellate Court to enter into the material available before it in such a manner that it amounts to holding a mini trial, [see:Anand Prasad Agarwalla vs. Tarkeshwar Prasad & Ors., reported in (2001) 5 SCC 568], hence, this Court is of the view that the impugned order passed by the lower Appellate Court cannot be sustained and is accordingly set aside.
70. The order of injunction dated 07.12.2019 passed by the trial Court is restored with the condition that the petitioners shall pay the monthly charges, for their occupation inclusive of the charges for the meals and electricity, at a tentative rate of Rs.12,000/- per month for both the petitioners, payable at the end of the every month to the respondents by a cheque, for which the respondents shall issue a receipt, and the amount so paid shall be subject to the final determination made in this regard by the trial Court who shall ascertain the amount payable by the petitioners to the respondents towards room charges, electricity and for meals for the period of their stay.
71. Since, the written statement has already been filed, this Court deems it appropriate to direct the Court concerned where Regular Suit No.2938/2019 is pending to expedite the trial and conclude the same preferably within a period of one year from the date a copy of this judgment and order is placed before the Court concerned, noticing that no unnecessary adjournments is to be asked for by the parties nor to be granted by the Court to either of the parties except in exceptional circumstances. In case, if the trial Court finds that any party is misusing the liberty, it shall be within the powers of the trial Court to impose costs which is commensurate in the facts and circumstances to ensure that the time line provided by the Court is scrupulously adhered.
72. In light of the discussions hereinabove, the impugned order dated 20.10.2020 passed in Misc. Civil Appeal No.7/2020 is set aside. The order of the trial Court dated 07.09.2019 subject to the above condition in Para-70 shall stand restored. Resultantly, the petition stands allowed, however, in the facts and circumstances, there shall be no order as to costs.
Order Date :- 1st October, 2021 Rakesh/-