Krishna Kant Tiwary, S/o Late Basudev Tiwary vs Mritunjay Malviya

Sanjay Kumar Dwivedi, J

Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party Nos.1 and 2.

Notice upon the opposite party Nos.3 and 4 have been validly served, however, they have chosen not to appear. With a view to provide one more opportunity to opposite party Nos.3 and 4, the matter was adjourned on 21.04.2025 in spite of that they have not appeared.

This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 13.06.2023 passed by learned District Judge – IX, Deoghar in Civil Misc. Appeal No.07/2022.

Learned counsel appearing for the petitioners submits that the plaintiff instituted a suit bearing Original Suit No.194 of 2022 with a prayer for a decree of declaration regarding plaintiffs right, title, interest and possession over the suit properties, for a decree of permanent injunction restraining the defendants from going over the suit property and for a decree of recovery of possession regarding the 15 kathas of land. He further submits that in the said suit the petition under Order 39 Rule 1 and 2 read with Section 151 of CPC was filed before the learned Civil Judge (Senior Division) – VIII, Deoghar which was numbered as Miscellaneous Civil Application No.134 of 2022 and the learned Court by the order dated 23.08.2022 has been pleased to reject the said petition holding that prima facie case and balance of convenience have not been established by the plaintiff and against that order, the plaintiff moved in appeal before the learned District Judge – IX, Deoghar in Civil Miscellaneous Appeal No.7 of 2022 in which the status quo order has been directed to be maintained by the learned First Appellate Court by order dated 13.06.2023. He submits that the learned First Appellate Court has held that the plaintiff has not been able to make out a case of permanent injunction and further found the order of learned trial court as correct in spite of that the status quo order has been passed. He submits that this order is not in accordance with law.

Learned counsel appearing for the opposite party Nos.1 and 2 opposes the prayer and submits that the learned Court has rightly passed the order. He submits that the learned Court has found that the encroachment are being made and in view of that the status quo order has been directed to be maintained.

It is an admitted position that the learned trial court has found that the plaintiff has not been able to prove that he is in possession of the land in question. The learned Court has found that prima facie case, balance of convenience and irreparable injury has not been proved by the plaintiff and considering that aspect of the matter, the learned Court has been pleased to reject the said petition and pursuant to that Civil Appeal No.7 of 2022 has been preferred by the plaintiff before the learned District Judge – IX, Deoghar. The learned District Judge has decided the said appeal by order dated 13.06.2023 and hold that the plaintiffs are not entitled to get relief of permanent injunction as the main relief is with regard to the injunction. The first appellate Court has further confirmed the finding of the learned Court that plaintiff has failed to make out any satisfactory case of irreparable loss and even balance of convenience and in spite of confirming the finding, the learned trial court has further directed to maintain the status quo.

If the three ingredients obtaining interim relief is not proved and it has been affirmed by the learned First Appellate Court in absence of any further cogent reason the status quo order can’t be passed.

It is well settled that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. Further the 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. Further mere possessory right does not entitle a plaintiff to obtain the temporary injunction against a true owner, the ownership is not established so far the property in question is concerned of the plaintiff.

Coming to the facts of the present case, the learned First Appellate Court has found the finding of the learned Trial Court correct and in spite of that has granted the status quo order which is not in accordance with law, as such the impugned order dated 13.06.2023 passed by learned District Judge – IX, Deoghar in Civil Misc. Appeal No.07 of 2022 is hereby set aside.

This petition is allowed in above terms and disposed of.