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Judgment
Supervisory jurisdiction of this court u/Art. 227 of the Constitution is invoked to assail the concurrent findings of both the courts-below by dismissing
an application for temporary injunction preferred by the petitioner/plaintiff u/O 39 Rule 1 & 2 CPC.
Learned counsel for the rival parties are heard on the question of admission and final disposal.
Learned counsel for the petitioner has taken this court to various documents including the sale-deed P/6 by which the alleged suit-property was
purchased and the layout also reveals the location of the said plot. It is submitted by the learned counsel for petitioner that merely because of non-
mention of area and survey number of the plot in that sale-deed and the allotment order, the relief of temporary injunction has been denied thereby
exposing the house of plaintiff to demolition.
After hearing learned counsel for the parties this court is of the considered view that once the civil court has entertained the cause raised by the
plaintiff and the factum of residential house of the plaintiff built on the said plot is not disputed then denial of temporary injunction would lead to
irreparable loss to the plaintiff. 4.1 The decision of this court in the case of Shankarlal Debiprasad Rathore Vs. State of M.P. & Ors. reported in 1978
M.P.L.J. 419 succinctly held that where there is serious debatable question of title and as well as possession the suit property should ordinarily be
protected from being destroyed, dis-repair, misuse to be available to satisfy the decree which may be ultimately passed. The relevant extract of the
decision is reproduced below :-
“5. The principles on which temporary injunctions are issued were recently examined by the House of Lords in American Cyanamid v. Ethicon
(1975) 1 All ER 504. The following passages from the speech of Lord Diplock are instructive on the point :
“The use of such expressions as ' a probability', ' a prima facie case', or ' a strong prima facie case' in the context of the exercise of a discretionary
power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The Court no
doubt must be satisfied that the claim is not frivolous and vexatious; in other words, that there is a serious question to be tried.
It is no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of
either party may ultimately depend not to decide difficult questions of law which call for detailed argument and mature considerations. These are
matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages on the grant of
an interlocutory injunction was that ' it aided the Court in doing that which was its great object, viz. abstaining from expressing any opinion upon the
merits of the case until the hearing' [Wakefield v. Duke of Buccleuch; (1865) 12 LT 628 at p.629. So unless the material available to the Court at
hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a
permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the
interlocutory relief that is sought.
As to that, the governing principle is that the Court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a
permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the
defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure
recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction
should normally be granted, however, strong the plaintiff's claim appeared to be at that stage. If on the other hand, damages would not provide an
adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the
defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under
the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application
and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in
a financial position to pay them, there would be no reason on this ground to refuse an interlocutory injunction.
It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of
convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where
the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.
Where other facts appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the stautus quo. If the
defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his
succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to
undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have
to start again to establish it in the event of his succeeding at the trial.
Save in the simplest cases, the decision to grant or to refuse an interlocutory injunction will cause to whichever party is unsuccessful on the application
some disadvantages which his ultimate success at the trial may he ought to have been spared and the disadvantages may be such that the recovery of
damages to which he would then be entitled either in the action or under the plaintiff's undertaking would not be sufficient to compensate him fully for
all of them. The extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding
at the trial is always a significant factor in assessing where the balance of convenience lies; and if the extent of the uncompensatable disadvantage to
each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each party's case as
revealed by the affidavit evidence adduced on the hearing of the application. This, however, should be done only where it is apparent on the facts
disclosed by evidence as to which there is no credible dispute that the strength of one party's case is disproportionate to that of the other party. The
court is not justified in embarking on anything resembling a trial of the action on conflicting affidavits in order to evaluate the strength of either party's
case.
I would reiterate that in addition to those to which I have referred, there may be many other special factors to be taken into consideration in the
particular circumstances of individual cases.
The principle that generally the plaintiff is not required to make out a clear legal title, but has only to satisfy the court that he has a fair question to
raise as to the existence of the legal right claimed by him in the suit is well recognized in India. The following two passages from Woodroffe's The law
relating to injunctions (Tagore Law Lactures, 1897, 1964 Edition) are relevant to this point.
“An applicant is not required to make out a clear legal title, but to satisfy the Court that he has a fair question to raise as to the existence of the
legal right which he sets up, and that there are substantial grounds for doubting the existence of the alleged legal right, the exercise of which he seeks
to prevent.â€
“ The Court will, in many cases, interfere to preserve property in status quo during the pendency of a suit in which the rights to it are to be decided,
and that, without expressing, and often without having the means of forming, any opinion as to such rights. It is true the Court will not interfere if it
thinks that there is no real question between the parties, but if it sees that there is a substantial question to be decided, it will preserve the property until
such question can be regularly disposed of; and in order to support an injunction for such purpose it is not necessary for the Court to decide upon the
merits in favour of the plaintiff. If the plaint states a substantial question between the parties the title to the Injunction may be good, although the title to
the relief prayed may ultimately fail.â€
The question then is whether on the application of the aforesaid principles a temporary injunction can be granted in the plaintiff's favour. The first
thing to be seen is whether the plaintiff's challenge to the allotment order in the suit raises serious questions for trial. I have already stated that the
contention of the plaintiff is that the order of allotment went beyond the jurisdiction of the Authorized Officer because the rent of the accommodation
was less than Rs. 25 per month and the house did not fall vacant. As earlier pointed out, section
39 has no application to an accommodation the monthly rent of which does not exceed Rs. 25. Further, even when section 39 applies, no allotment can
be made unless the house has fallen vacant or is likely to fall vacant. All these questions are jurisdictional questions and it appears to be a reasonably
good argument that the Authorized Officer cannot assume jurisdiction by wrongly deciding jurisdictional questions of fact. The Authorised Officer's
conclusion that Jagdish Prasad occupied the house as a tenant and paid Rs. 40 per month as rent to the plaintiff is based on the statement of a
relations of the allottee that Jagdish Prasad had told him that the rent was Rs. 40 per month. The plaintiff and Jagdish Prasad both have filed affidavits
that Jagdish Prasad was not a tenant and that he never paid any rent. The plaintiff has also produced certified copies of the entries in the assessment
register of the Corporation which show that the rent of the house in the suit at the relevant time was Rs. 17 per month. In the circumstances, in my
opinion, the plaintiff has raised serious questions as to the jurisdiction of the Authorised Officer.
The next point is whether balance of convenience lies in the plaintiff's favour for issuance of injunction. It is not disputed before me by the learned
counsel for the defendant, and it is also the finding of the District Judge, that the plaintiff at least on the date of the suit was in possession of the house
and was using it as a godown for storing tobacco. It has also been shown by the plaintiff that the house is a licensed godown under the Central Excise
and Salt Act. If the plaintiff is required to vacate the house and give possession to the allottee and if he ultimately establishes his right claimed in the
suit, he will suffer inconvenience and loss in business which cannot be satisfactorily compensated by award of damages. As regards the allottee, I am
informed that he is living with his brother-in-law. No doubt it will be more convenient for him to live in the suit house and his continuing to live with his
brother-in-law during the pendency of the suit would make him suffer some inconvenience which cannot be easily compensated in terms of money.
However, inconvenience to the plaintiff would be much more if he is required to vacate the suit house. One of the principles noticed above is: Where
other factors appear to be evenly balanced, it is a counsel of prudence to take such measures as are calculated to preserve the status quo.†Having
regard to all the circumstances of the case, in my opinion the balance of convenience lies in favour of granting interim injunction to the plaintiff.â€
In view of the above and looking to the facts attending the present case, this court is of the considered view that both the courts-below have failed
to exercise the jurisdiction by rejecting the claim for temporary injunction by indulging in a deep probe into the genuineness of the claim which should
have been left to be decided at the trial by adducing of evidence.
Accordingly, this court in exercise of supervisory jurisdiction is inclined to interfere in the orders passed by courts-below and disposes of this petition
with direction to the rival parties to maintain status quo with regard to the suit property for a period of six months. In case the suit is not decided within
six months, then the temporary injunction granted today by this Court shall stand vacated leaving it open for the parties to apply for the same afresh
before the trial court which shall be free to take its independent decision without being prejudiced by this order.
As a necessary consequence, the impugned order dated 18/5/2018 in MCA NO. 25/18 passed by the lower appellate court and as well as the order
dated 24/1/2018 in C.S.No.446A/2017 passed by the trial court are set aside.
No cost.