Uttarakhand High Court
Unknown vs "4. Order 39 Rule 1(C) Provides That on 14 November, 2019
Author: Manoj K. Tiwari
Bench: Manoj K. Tiwari
WPMS No.3473 of 2019 Hon'ble Manoj K. Tiwari, J.
Heard Mr. Siddhartha Singh and Mr. P.S. Bisht, Advocates for the petitioner.
This is plaintiff's petition under Article 227 of Constitution of India against the order dated 02.08.2018 passed by learned trial Court/Civil Judge (Junior Division), Laksar, District Haridwar in Original Suit No. 12 of 2017 and also the judgment & order dated 04.11.2019 passed by learned Additional District Judge, Laksar, District Haridwar in Misc. Civil Appeal No. 66 of 2018.
Petitioner filed a suit for cancellation of sale deed executed by respondent no. 1 in favour of respondent no. 2. His contention was that the suit property was bequeathed in favour of petitioner by Mr. Hargyan (father of respondent no. 1) through a registered sale deed, therefore, respondent no.1 had no right to transfer the suit property. Alongwith the suit, petitioner filed a temporary injunction application, which was rejected by learned trial Court on 02.08.2018 mainly on the ground that mutation proceedings are pending before the Revenue Court/Tehsildar and, till name of the petitioner is mutated in the revenue records, he has no prima facie case. The Misc. Civil Appeal filed by the petitioner against the said order under Order 43 Rule 1 (r) C.P.C. has also been dismissed by learned Additional District Judge, Laksar, District Haridwar vide judgment & order dated 04.11.2019. Petitioner has challenged the order passed by trial Court and also the judgment rendered by Appellate Court by means of this petition.
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."
Since grant of temporary injunction is discretionary and learned Courts below have considered all the three factors i.e. prima facie case, balance of convenience and irreparable injury for disallowing petitioner's application for temporary injunction, thus, this Court finds no reason to interfere with the orders impugned in the writ petition.
Accordingly, the writ petition fails and is dismissed.
Learned counsel for the petitioner then submits that Smt. Anita (respondent no.2), who has purchased the land from respondent no. 1, is going to create third party interest over the suit property, therefore, she may be restrained from transferring or alienating the suit property during the pendency of the suit.
Doctrine of lis pendens is engrafted under Section 52 of Transfer of Property Act, which takes care of such circumstances where suit property is transferred during pendency of a suit. Thus, it goes without saying that in case respondent no. 2 transfers the suit property to anybody, the same shall be subject to provision contained under Section 52 of Transfer of Property Act.
(Manoj K. Tiwari, J.)
Arpan 14.11.2019