Himachal Pradesh High Court
____________________________________________________________ vs Chander Kanta (Now Deceased) Through ... on 26 February, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
OMP No. 392 of 2020 in OMP No. 2 of 2018
In Civil Suit No. 4080 of 2013
.
Reserved on: February 23, 2021
Decided on: February 26, 2021
____________________________________________________________
Smt. Davinder Parmar and another
.........Applicants/Plaintiffs
Versus
Chander Kanta (now deceased) through her legal
representatives Randeep Singh
...non-applicant/defendant
____________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
____________________________________________________________
For the Applicants: Mr. K.D. Sood, Senior Advocate with
Mr. Sukrit Sood, Advocate.
For the Non-applicant: Mr. Satyen Vaidya, Senior Advocate
with Mr. Bhairav Gupta, Advocate.
____________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant application filed under Order XXXIX, rules 1 and 2 read with S.151 CPC, prayer has been made behalf of the applicants/plaintiffs (hereinafter, 'applicants') to restrain the non-applicant/defendant from selling, transferring and encumbering the suit property i.e. four storeyed building known as "33, The Mall, Shimla" or leasing out the same during the pendency of the suit. Pursuant to Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 03/03/2021 20:15:07 :::HCHP -2-order dated 1.12.2020, whereby this Court, while directing the non-applicant/defendant to maintain status quo qua .
nature and possession of the suit property directed the non-
applicant/defendant to file reply to the application, non-
applicant/defendant has filed the reply. Specific ground with regard to maintainability of the application has been raised on behalf of the non-applicant/defendant.
2. For having bird's eye of the matter, certain undisputed facts, which may be germane for the proper adjudication of the application are that the applicants filed Civil Suit bearing No. 4080 of 2013, titled Smt. Davinder Parmar vs. Chander Kanta and another, for declaration to the effect that the plaintiffs jointly are owners to the extent of 1/6th share in the four storeyed building known as "33, The Mall, Shimla" and mutation No. 141, dated 27.7.2005 be declared void, illegal and inoperative against the right of the plaintiffs and they be declared in joint possession of the property. Aforesaid suit was filed in the year 2013, but alongwith the plaint, no application under Order XXXIX, rules 1 and 2 CPC seeking therein restraint order, if any, against non-applicant/defendant ever was instituted. After completion of pleadings, court proceeded to frame issues vide ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP -3- order dated 26.10.2015 and thereafter, evidence commenced.
On 9.3.2016, plaintiffs' evidence was closed in the .
affirmative, as per the statement of learned counsel appearing for the plaintiffs and thereafter, the matter repeatedly was listed for recording evidence of the defendants. While the evidence on behalf of the non-applicant/defendant was being led, an application under Order VIII, rule 1A(3) read with S.151 CPC was filed on behalf of the non-
applicant/defendant, seeking leave of the court to place on record and prove certain documents. Though the aforesaid application, after completion of pleadings was heard in part on 2.6.2017 but since on 10.11.2017, none appeared on behalf of the plaintiffs, suit having been filed by them was dismissed in default vide order dated 10.11.2017 alongwith all pending applications. Subsequently, in the month of January, 2018, an application under Order IX, rule 9 read with S.151 CPC, was filed on behalf of the applicants/plaintiffs, praying therein for restoration of civil suit dismissed in default on 10.11.2017, alongwith an application under S.5 of Limitation Act, for condonation of delay. Vide order dated 5.7.2018, delay in filing the application bearing OMP No. 14/2018, was condoned, ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP -4- however, this court having taken note of the pleadings adduced on record by respective parties in the aforesaid .
application for restoration, framed following issues vide order dated 11.9.2018:
"OMP No. 14 of 2018i) On the contentious pleadings of the parties, the following issues are framed: i) Whether good, sufficient and adequate cause has been made out by the plaintiff/applicant, for recalling the order, pronounced, on 10.11.2017 ? OPP
ii) Relief.
Issues are readover and explained to the parties. No other issue arises nor claimed by any of the parties. Now, for plaintiff/applicant's evidence, on the aforesaid issue, subject to steps being taken, within a week, the matter be listed, on a date to be fixed by the Registry of this Court."
3. After passing of aforesaid order, evidence commenced in the application for restoration and statement of one AW was recorded. Since, notice issued to Harminder Singh Parmar could not be served on account of his not being available in the country, two weeks' time was granted to the applicants/plaintiffs for taking fresh steps for summoning aforesaid witness. On 27.12.2019, it transpired that the summons issued to AW-2 have been received back unserved with the report that Harminder Singh has gone to New ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP -5- Zealand, as such, further time was granted to the applicants/plaintiffs for taking fresh steps but, in the .
meantime, applicants/plaintiffs filed OMP No. 392 of 2020, under Order XXXIX, rules 1 and 2 CPC, praying therein to issue restraint order against non-applicant/defendant. Vide orders dated 1.12.2020 this Court directed the parties to maintain status quo qua nature and possession of suit property. After passing of aforesaid order, non-
applicant/defendants besides filing reply to this application, also filed an application bearing OMP No. 456 of 2020 under Order XXXIX, rule 4 CPC praying to vacate the order dated 1.12.2020 passed by this Court in OMP No. 392 of 2020 in OMP No. 2 of 2018.
4. I have heard learned counsel for the parties and perused the material available on record.
5. Since the question with regard to maintainability of the application has been specifically raised by the non-
applicant/defendant, this Court deems it appropriate to decide the same at the first instance, before going into the merits of the case. It is not in dispute that the application under Order XXXIX, rules 1 and 2 CPC was not filed in the main suit, which otherwise stands dismissed in default vide ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP -6- order dated 10.11.2017, rather, same has been filed in OMP No. 14 of 2018 filed under Order IX, rule 9 CPC, wherein .
prayer has been made to restore the civil suit dismissed in default vide order dated 10.11.2017.
6. The moot question, which needs to be adjudicated in the present case is, "whether the application under Order XXXIX, rules 1 and 2 CPC, seeking therein restraint order can be considered in a decided suit, especially in the proceedings initiated under Order IX, rule 9 CPC, praying therein for restoration of civil suit dismissed in default."
7. Mr. K.D. Sood, learned Senior Counsel duly assisted by Mr. Sukrit Sood, Advocate, appearing for the applicants/plaintiffs, vehemently argued that since the application filed on behalf of applicants/plaintiffs under Order IX, rule 9 CPC is still pending adjudication, applicants/plaintiffs are well within their right to file an application under Order XXXIX, rules 1 and 2 CPC, seeking therein restraint order. Mr. Sood, learned Senior Counsel, further contended that since this Court has already taken cognizance of the application filed on behalf of applicants/plaintiffs under Order IX, rule 9 CPC and in those proceedings, evidence is being recorded, prayer made on ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP -7- behalf of the applicants/plaintiffs to restrain the non-
applicant/defendant from selling, transferring, encumbering .
the suit property or changing nature thereof by creating new tenancy, deserves to be allowed. Mr. Sood, learned Senior Counsel further contended that in case prayer made in the aforesaid application is not accepted at this stage, very purpose of filing civil suit No. 4080 of 2013, shall be defeated.
While claiming that the application under Order XXXIX, rules 1 and 2 CPC can be filed in proceedings filed under Order IX, rule 9 CPC, Mr. Sood, learned Senior Counsel invited attention of this Court to judgment rendered by Hon'ble High Court of Allahabad in Basant Lal v. Lakshmi Chand AIR 2007 Allahabad 32. Lastly, Mr. Sood, learned Senior Counsel submitted that even otherwise, under S.151 CPC, this Court has inherent powers to grant interim injunction to meet the ends of justice and to prevent abuse of process of law.
8. Mr. Satyen Vaidya, learned Senior Counsel duly assisted by Mr. Bhairav Gupta, Advocate, appearing for the non-applicant/defendant, while refuting the aforesaid submissions made on behalf of learned Senior Counsel appearing for the applicants/plaintiffs, strenuously argued that since there is no legally constituted suit pending before ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP -8- this Court, application under Order XXXIX, rules 1 and 2 CPC, filed in a disposed of suit, cannot be considered and .
deserves outright rejection. Mr. Vaidya, learned Senior Counsel, appearing for the non-applicant/defendant, further contended that the application under Order IX, rule 9 CPC for restoration, was filed in the month of January, 2018 and at that time, no application, if any, was filed under Order XXXIX, rules 1 and 2 CPC, and as such, present application, which has been filed after about one and half years of filing of application for restoration of the suit deserves to be dismissed being devoid of any merit. Lastly, Mr. Vaidya, learned Senior Counsel argued that otherwise also, perusal of the averments contained in the application seeking therein restraint order, reveals no prima facie case, if any, in favour of the applicants/plaintiffs. He further submitted that it is admitted case of the applicants/plaintiffs that the non-
applicant/defendant are in exclusive possession of suit property, on the basis of Will executed by one Smt. Gurbachan Kaur and as such, balance of convenience cannot be said to be in favour of the applicants/plaintiffs.
9. It is not in dispute that the application under adjudication has been filed in OMP No. 14 of 2018 i.e. an ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP -9- application under Order IX, rule 9 CPC, for restoration of civil suit which stands dismissed in default vide order dated .
10.11.2017 passed by this Court. Bare reading of provisions contained under Order XXXIX, rules 1 and 2 CPC clearly suggests that application, if any, for temporary injunction can be filed in a pending suit and not in a decided suit. In the case at hand, civil suit having been filed by the applicants/plaintiffs stands dismissed for non-prosecution.
No doubt, applicants/plaintiffs by way of an application under Order IX, rule 9 CPC, have prayed for restoration of civil suit dismissed in default, but till the time civil suit is restored to its original number, there is no legally constituted suit pending before this Court and, as such, application filed under Order XXXIX, rules 1 and 2 CPC, cannot be entertained, especially when in that application, specific prayer has been made to restrain the non-
applicant/defendant from selling, transferring and encumbering the suit property during the pendency of the suit. Application, if any, under Order XXXIX, rules 1 and 2 CPC can be filed /maintained by the plaintiffs after restoration of suit and not before that. Though, Mr. K.D. Sood, learned Senior Counsel has placed reliance upon ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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decision rendered by High Court of Allahabad in Basant Singh (supra), but this Court, having carefully perused the .
judgment in its entirety, finds that in the aforesaid judgment, it has been nowhere held that an application under Order XXXIX, rules 1 and 2 CPC, can be filed in a decided suit, rather, it has been categorically ruled in the aforesaid judgment, that even after dismissal of suit, pending an application under Order IX, rule 9 CPC, court may grant interim injunction, in exercise of its inherent powers under S.151 CPC. This court finds that in the aforesaid judgment, High Court of Allahabad has specifically dealt with the expression "all proceedings in any court of civil jurisdiction"
as mentioned under S.141 CPC. It has also been held in the aforesaid judgment that an application filed for restoration of second appeal, dismissed as having been abated and the substitution application falls within the meaning of phrase, "all proceedings in any court of civil jurisdiction" and as such, it is open for the court to pass appropriate orders for injunction in the suit during the pendency of aforesaid application. But the question still remains that, under what provision of law, such power can be exercised. In the aforesaid judgment, it has been held that an application for ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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restoration of suit or second appeal dismissed in default or having been abated, falls within the expression, "all .
proceedings" in terms of provisions contained under S.141 CPC, but the very effect of aforesaid findings, if any, would be that such application would be decided in terms of procedure laid down in the Code (Code of Civil Procedure). However, careful perusal of specific provisions laid down under Code of Civil Procedure for temporary injunction under Order XXXIX, rules 1 and 2 CPC, nowhere provides for filing an application for temporary injunction in a decided suit, rather said application can be filed in a suit which is pending adjudication. Though, in the aforesaid judgment, it has been held that injunction, if any, sought during the pendency of an application for restoration, can be granted, but in exercise of power under S.151 CPC.
10. Mr. Sood, learned Senior Counsel, further argued that since the application under adjudication has been filed under Order XXXIX, rules 1 and 2 read with S.151 CPC, this Court, while exercising power under S.151 CPC can proceed to consider prayer made therein. However, this Court is of the view that before invoking provisions of S.151 CPC, Court is required to satisfy itself that, whether the order prayed for is ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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necessarily required to be passed to meet the ends of justice and to prevent the abuse of process of law? Needless to say .
that the inherent power cannot be exercised so as to nullify the provisions of the Code. Where a court deals expressly with a particular matter provisions should normally be regarded as exhaustive and in that situation, it would not be proper for the court to invoke provisions contained under S.151 CPC. Reliance is placed upon National Institute Of Mental vs C. Parameshwara AIR 2005 242. It has been held in the aforesaid judgment as under:
"12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal , it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High Court to bye- pass Section 10 CPC by invoking Section 151 CPC. ...."
11. Similarly, recourse to inherent power in face or in conflict with the specific provisions of Statute is not permissible. Inherent power cannot be invoked to nullify any statutory provisions of statute. Reliance is placed upon Abdul Rahim B. Attar, Javed Abdul vs Atul Ambalal Barot And ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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Rajendra AIR 2003 (Bombay) 120. It has been held in the aforesaid judgment as under:
.
"....t is well settled that express provisions of law in a statute would by necessary implication exclude the exercise of inherent powers in regard to that particular Act where specific remedy is provided in accordance with the codified law. It is also well settled that recourse to inherent powers in the face of or in conflict with the specific provisions of a statute is not permissible. Inherent powers cannot be exercised to nullify the effect of any statutory provision.
The Apex Court in Vareed Jacob v. Sosamma Geevarghese and Ors. has held that "if there is express provision covering a particular topic, then Section 151 of C.P.C. r cannot be applied."
12. If the prayer made on behalf of the applicants/plaintiffs for exercise of power under S.151 CPC is examined vis-à-vis factual matrix of the case, this court is afraid that such power can be exercised in the instant case.
Careful perusal of the suit filed in the year 2013, reveals that the same was filed for declaration to the effect that the applicants/plaintiffs are joint owners of the suit property to the extent of 1/6th share. While seeking aforesaid declaration, no prayer, if any, was ever made on behalf of the applicants/plaintiffs seeking decree of permanent prohibitory injunction. Moreover, alongwith the aforesaid suit, no separate application, if any, under Order XXXIX, rules 1 and ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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2 CPC, ever was filed on behalf of applicants/plaintiffs seeking therein restraint order against the non-
.
applicant/defendant(s).
13. Applicants/plaintiffs, while fairly admitting the factum with regard to possession of the non-
applicant/defendant over the suit property, kept on prosecuting their suit without making a specific prayer to issue restraint order during the pendency of the suit, which was subsequently dismissed in default vide order dated 10.11.2017. Even after dismissal of the suit in default, the application under the provisions of Order IX, rule 9 CPC, was filed after an inordinate delay. Since the court was not convinced with the reasons assigned for recalling the order dated 10.11.2017, specific issues were framed in the aforesaid application and time was granted to the parties to lead evidence. Since the applicants/plaintiffs were unable to serve their witnesses, evidence on their behalf could not be concluded, as such, application filed under Order IX, rule 9 CPC, is still pending adjudication. Interestingly, the applicants/plaintiffs, for some unknown reasons, chose not to file application, if any, for injunction at the time of filing of application under Order IX, rule 9 CPC, rather, the same was ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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filed approximately one and half years after filing of the application under Order IX, rule 9 CPC, detailing therein .
altogether different reasons, which otherwise were never brought on record in the original suit. It has been specifically averred in the application under adjudication that one shop, which has been ordered to be vacated, is likely to be further sold/transferred by the non-applicant/defendant during the pendency of the suit and, in case, non-applicant/defendant(s) is/are not restrained from selling/transferring or creating third party interest, great prejudice would be caused to the applicants/plaintiffs. Averments contained in the application itself suggest that the non-applicant/defendant being owner of suit property, instituted eviction proceedings against the tenants occupying certain portions of the property but, at no point of time, effort, if any, was ever made on behalf of the applicants/plaintiffs to get themselves impleaded in the eviction proceedings on the ground that they are co-owners of the suit property. It has been nowhere stated in the application that the factum with regard to pendency of eviction proceedings initiated at the behest of non-
applicant/defendant in the competent court of law was not in the knowledge of the applicants/plaintiffs, as such, this ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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Court has reasons to presume that the applicants/plaintiffs were having knowledge of pendency of the eviction .
proceedings against a few of the tenants occupying certain parts of the suit property, but, they purposely withheld aforesaid facts from this Court at the time of filing the suit. It is only after passing of eviction orders that the applicants/plaintiffs suddenly woke up from deep slumber and filed the application under Order XXXIX, rules 1 and 2 CPC, that too, in a decided suit.
14. Having taken note of the fact that in the main suit, no prayer for issuance of a decree of temporary/permanent prohibitory injunction was ever made, coupled with the fact that no separate application for temporary injunction was filed under Order XXXIX, rules 1 and 2 CPC, alongwith the suit, this Court finds no reason to invoke power under S.151 CPC, to pass injunction, especially when the main suit stands dismissed in default. Otherwise also, once there is a specific provision under the Code to get the civil suit restored, inherent power under S.151 CPC, cannot be invoked to undo the benefits, if any, reaped by one party on account of negligence of the other party. Otherwise also, applicants/plaintiffs have not approached this Court, ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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with clean hands, as such, prayer made on their behalf for exercise of power under S.151 CPC, deserves to be rejected, .
which otherwise can be exercised sparingly to prevent abuse of process of court. There is nothing on record, suggestive of the fact that at any point of time, non-applicant/defendant abused process of law, rather, civil suit having been filed on behalf of applicants/plaintiffs was dismissed due to their own negligence. If the averments contained in original suit are read in r its entirety, it is the own case of the applicants/plaintiffs that mutation No. 141, dated 27.7.2005, has been wrongly attested in favour of the non-
applicant/defendant on the basis of a Will, meaning thereby that the mutation of suit property was attested in favour of non-applicant/defendant(s), on the basis of a Will, which otherwise is not under challenge in the main suit, as is evident from the specific prayer made therein. Since it is not in dispute inter se parties that the non-
applicant/defendant(s) is/are in possession of the suit property on the basis of the Will, validity whereof has not been laid challenge, no prima facie case otherwise can be said to be existing in favour of applicants/plaintiffs. Though, in the case at hand, the applicants/plaintiffs have claimed that ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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the balance of convenience lies in their favour but having taken note of the fact that non-applicant/defendant, after .
becoming owner of the property in question on the strength of Will, initiated eviction proceedings against tenants and got them successfully evicted, it can be safely concluded that the balance of convenience lies in favour of the non-
applicant/defendant and not in favour of the applicants/plaintiffs.
15. r Hon'ble Apex Court in case Mahadeo Savlaram Shelke v. The Puna Municpal Corpn., J.T. 1995(2) S.C. 504, relying upon its earlier judgment in Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 has aptly interpreted the phrases, "prima facie case", "balance of convenience" and "irreparable loss". Hon'ble Apex Court has observed in the judgment (supra) that the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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injury to either party and whether the plaintiffs could be adequately compensated, if injunction is refused. The .
existence of prima facie 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 the 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 the one that cannot be adequately compensated by way of damages.
The balance of convenience must be in favour of granting injunction. The court while granting or refusing injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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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.
Hon'ble Apex Court has held as under:
"...the phrases "prima facie case", "balance of convenience"
and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima fade right and infraction of the enjoyment of him 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 ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP
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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 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. The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
16. Apart from aforesaid well established parameters/ingredients, conduct of the party seeking injunction is also of utmost important, as has been held by Hon'ble Apex Court in case M/S Gujarat Bottling Co.Ltd. & Ors. v. The Coca Cola Co. & Ors., AIR 1995 2372. In case a party seeking injunction fails to make out any of the three ingredients, it would not be entitled to injunction.
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17. A Coordinate Bench of this Court in Ashok Kapoor vs. Murtu Devi 2016 (1) Shim. LC 207, had an .
occasion to deal with the issue of injunction, wherein it, having taken note of various judgments rendered by Constitutional courts, concluded as under:
"47. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:-
(i) existence of a prima facie case as pleaded, r necessitating protection of the plaintiff's rights by issue of a temporary injunction;
(ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's right or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and
(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.
In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands."
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18. Otherwise also, as far as plea with regard to irreparable loss is concerned, same cannot be accepted at .
this stage on account of the facts and circumstances of the case noted above, rather, this Court is of the view that in the event of suit being allowed after its restoration, applicants/plaintiffs can get their appropriate share in the property by filing appropriate proceedings. There is yet another aspect of the matter that bare perusal of the application under adjudication itself suggests that a prayer has been made to restrain the non-applicant/defendant from selling, transferring or encumbering the suit property during the pendency of the suit and there is no specific prayer that till the time, application filed under Order IX, rule 9 CPC is decided by the Court, parties to the lis may be directed to maintain status quo qua nature and possession of the property.
19. Consequently, in view the detailed discussion made herein above, present application is dismissed being devoid of any merit. Order dated 1.12.2020, stands vacated.
(Sandeep Sharma) Judge February 26, 2021 (Vikrant) ::: Downloaded on - 03/03/2021 20:15:07 :::HCHP