Uttarakhand High Court
Unknown vs Prahlad Singh And Others on 18 December, 2019
Author: Manoj K. Tiwari
Bench: Manoj K. Tiwari
WPMS No. 3838 of 2019 Hon'ble Manoj K. Tiwari, J.
Heard Mr. M.K. Chand, Advocate for the petitioners.
Petitioners are defendants in Original Suit No. 53 of 2018 filed by respondent nos. 1 & 2. On an application filed by the plaintiffs, learned trial Court granted temporary injunction in their favour restraining the petitioners from interfering with the peaceful possession of respondent nos. 1 & 2.
Petitioners challenged the order, whereby temporary injunction was granted, by filing Misc. Civil Appeal No. 01 of 2019. The said appeal has been dismissed by the learned appellate Court/District Judge, Champawat. Thus, feeling aggrieved, petitioners have approached this Court.
Hon'ble Supreme Court in the case of Dalpat Kumar and another Vs. Prahlad Singh and others, reported in (1992) 1 SCC 719, has enumerated the principles, which are to be borne in mind, while considering an application for temporary injunction. Para nos. 4 & 5 of the said judgment are extracted below:
"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."
I have gone through both the orders passed by learned Courts below. Both the Courts below have given cogent reasons for grant of temporary injunction in favour of the plaintiff/ respondent nos. 1 & 2. Three relevant factors, namely, prima facie case, balance of convenience and irreparable injury have been considered by learned Courts below in the correct perspective for holding that the plaintiffs are entitled to interim protection. .
In such view of the matter, this Court is not inclined to interfere with the discretionary order passed by learned Courts below.
Accordingly, the writ petition fails and is dismissed. No order as to costs.
(Manoj K. Tiwari, J.)
Navin 18.12.2019