Mohammad Hashim Banday And Others vs Ghulam Mohi Ud Din Banday And Other

Petitioners are aggrieved of and seek setting-aside of the Order dated 17th July 2018 passed by learned 1st Additional Munsiff, Srinagar, (for brevity "Trial Court") on an Application under Order 39 Rule 1&2 of the Code of Civil Procedure, as also Order dated 25th January 2019, passed by learned Additional District Judge, Srinagar (for short "Appellate Court") on a Civil Miscellaneous Appeal, and for setting aside the same on the grounds adumbrated therein.

I have heard learned counsel for parties and considered the matter.

Petitioners herein, what is discernible from the record appended by them with present petition, have filed a Civil Suit for Permanent Injunction against respondents before the learned Trial Court. Upon its presentation, learned Trial Court vide ad interim Order dated 27th December 2017, temporarily restrained respondents from causing any sort of interference in the suit property. Respondents put in attendance and filed their Written Statement, vehemently resisting the Suit of plaintiffs/petitioners. Learned Trial Court, after discussing rival pleadings of both parties, vide impugned Order dated 17th July 2018, disposed of Interim Application and made absolute Interim Order dated 27th December 2017, to the extent of Three Storeyed House along with land falling under Survey no.644, situated at Bota Bagh, Hazratbal, Srinagar. However, learned Trial Court did not make absolute Interim Order qua Land measuring 12 Marlas, falling under Survey no.644 along with a Two Storeyed Annexe occupied by defendants 3&4. Aggrieved, petitioners filed a Civil Miscellaneous Appeal before learned Appellate Court, seeking setting aside of impugned Order dated 17th July 2018, to the extent of 12 Marlas and a Two Storeyed annexe. However, learned Appellate Court has, vide Order dated 25th January 2019, dismissed the Appeal of petitioners. Dissatisfied therewith, petitioners have come up with instant petition under Article 227 of the Constitution of India read with Section 104 of the Constitution of J&K, beseeching setting aside of impugned orders, passed by learned Trial Court and Appellate Court.

Learned counsel for petitioners, to eke out the case set up by petitioners, has stated that learned Trial Court as well as Appellate Court have not appreciated the case set up before them in its right perspective.

A Suit for Permanent Injunction (Annexure-III to petition) filed by petitioners, on its bare reading, divulges that the case set up by them therein is that their grandfather, namely, Abdul Rahim Banday, had a house with land underneath and appurtenant thereto measuring 03 Kanals situated at Hazratbal, Srinagar, and after his death, his three sons, namely, Ghulam Mohi ud Din Bandy, Mohammad Ashraf Banday and Ghulam Hassan Banday, partitioned ancestral property in the year 1984, when property was acquired by J&K Auqaf Trust for beautification of Hazratbal Shrine. The partition deed got registered before Sub Registrar, Srinagar, on 4th March 1985. J&K Auqaf Trust, according to petitioners, provided alternative land in exchange of acquired land near Hazratbal Shrine to aforesaid three brothers, whereover they constructed their respective houses. Further case of petitioners is that father of plaintiffs/petitioners was Mutwali of Hazratbal Shrine. It is also averred in the suit by plaintiffs that defendants/respondents are exploiting their father to dispossess them from the property in question when he has no right, interest or title over the suit property in view of the oral gift given by him in favour of plaintiffs/petitioners. Petitioners, on the edifice of case set up, have sought a Permanent Injunction Decree against defendants/ respondents to restrain defendants from causing any type of interference with the suit property - three storeyed residential house along with two storeyed Annexe having land underneath and appurtenant thereto measuring approximately 02 Kanals falling under Khasra no.644 Min situated at Hazratbal, Srinagar. An application alongside the suit was also filed by petitioners for grant of interim relief. Threshold temporary interim order dated 27th December 2017 was passed by learned Trial Court, restraining defendants from causing any sort of interference with the suit property. Respondents filed their written statement (Annexure-IV to petition). In their written statement, respondents/defendants have stated that grandfather of petitioners, Late Abdul Rahim Banday, had not only three sons but had also three daughters, namely, Shahzada Begum, Habibi and Farida. According to defendants/respondents, the Auqaf Trust acquired the land of Late Abdul Rahim Banday and in lieu thereof provided 04 Kanals of land and Rs.42.00 Lacs as compensation to the legal heirs of Late Abdul Rahim Banday and that defendants 1&2/ respondents 1&2 were given 02 Kanals of land out of 04 Kanals. Respondents' further stand in written statement is that all six legal heirs of Late Abdul Rahim Bandy were entitled to share from compensation. Respondents have also asserted that father of plaintiffs/petitioners has not made any oral gift in their favour inasmuch as he is still holding the title of the property except 12 Marlas of land that has been sold by him out of 02 Kanals of land to Naseema Kamli, Muzaffar Ahmad Kamli and Zahoor Ahmad Kamili, who are in possession of the same and a document has also been executed in favour of vendees. Respondents have also raised other contentious grounds in written statement.

Learned Trial Court has taken into consideration rival contentions of the parties and also heard learned counsel for parties. Learned Trial Court, if one goes by the contents of impugned order dated 17th July 2018, has taken care of all facets of the matter which are prerequisite while considering an application for grant of ad interim relief. Having said that, impugned interim order dated 17th July 2018, need not be interfered with.

Against impugned order passed by learned Trial Court, petitioners directed an Appeal before learned Appellate Court. All what was required to be looked into by learned Appellate Court has been judiciously taken care of, including the application filed by father of plaintiffs/petitioners before learned Trial Court that need not be discussed here as it may influence proceedings before learned Trial Court. In that view of matter impugned order of learned Appellate Court is also lucid, eloquent and well-reasoned and, therefore, need not be interfered with.

In the above milieu, it would be pertinent to mention here that in India, the law of injunction has its genesis in the Equity Jurisprudence of England. The remedy of injunction in England was available in the Courts of Chancery, and was based on interdict of the Roman Law. Injunction is an instrument in the hands of the Court capable of various applications for the purpose of dispensing justice between the parties. As a remedy for prevention of wrongs and preservation of rights, the remedy of injunction has been regards as more flexible and adjustable to the circumstances than any other process of law. It may be (i) temporary, (ii) perpetual, (iii) mandatory, or (iv) preventive. Object of an injunction is to prevent the doing of an apprehended wrong and to protect a party against any unlawful invasion of his rights. Therefore, an injunction necessarily operates upon unperformed and unexpected acts and prevents an injury which is threatened, though non-existent at the time of the suit. This relief is available to a party that is vigilant and seeks protection from a Court before an injury is done. Though the law of injunctions originated from the Courts of Equity in England, grant of injunction in essence is an equitable relief. In India while dealing with injunctions the Courts are to be guided by the provisions of the Civil Procedure Code, and the Specific Relief Act. In India, grant of injunction is within the discretion of the Court, but this discretion is guided by law on well recognised principles. According to Black's Law Dictionary, Eight Edition, 'injunction' means a Court order commanding or preventing an action. To get an injunction, the complainant must show that there is a plain, adequate and complete remedy at law and that an irreparable injury will result unless the relief is granted. In a general sense, every order of a Court which commands or forbids is an injunction, but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing. An injunction has also been defined as a writ framed according to the circumstances of the case, commanding an act which the Court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience, as a remedial writ which courts issue for the purpose of enforcing their equity jurisdiction; and as a writ issuing by the order and under the seal of a Court of equity. Temporary injunction lays stress on the prima facie case, balance of convenience and irreparable loss. The grant of injunction is in the judicial discretion of a court. If the equities are in his favour a party can request a court to exercise judicial discretion in his favour. It means that the party, asking for an injunction, must have a legal right in his favour, which the opposite party is trying to invade or there must exist an obligation in his favour whether contractual or otherwise which the other-side is trying to invade or obstruct. The main object of a temporary injunction is to keep the matters in status quo until a case is finally decided on merits. Ordinarily, no injunction is granted against a person in possession unless the threatened act of that person is likely to cause substantial and irreparable injury to the person. [See: State of Jammu & Kashmir v. Ghulam Rasool, AIR 1979 J&K 53; T. Jayamma v. Padmavathamma, (1981) 2 An WR 308].

Germane to mention that the jurisdiction of the Courts is not confined to grant injunction only to protect equitable right, it extends to the protection of legal rights to property from damage during pendency of litigation. While exercising such rights the Court does not pretend to determine the legal rights to property; it simply keeps the property in its actual condition until the title can be established.

As adumbrated hereinabove, an injunction is a judicial remedy interdicting persons from doing a specified act, called a restrictive injunction, or commanding them to undo some wrong or injury called a mandatory injunction, and may be either temporary, interim or interlocutory, or permanent. Order XXXIX of the Code of Civil Procedure deals with temporary, interim or interlocutory injunction and orders. Where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or that defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, or that defendant threatens to dispossess plaintiff or otherwise cause injury to 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 order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of plaintiff, or otherwise causing injury to plaintiff on the subject of property in dispute in the suit as the Court thinks fit, until disposal of the suit or until further orders. Injunctions are of two kinds, temporary or perpetual. Temporary injunctions are regulated by Rules 1 and 2 of Order XXXIX CPC, whereas perpetual injunctions are regulated by the Specific Relief Act. A party against whom a perpetual injunction is granted is thereby restrained for ever from doing the act complained of. A perpetual injunction can only be granted by a final decree made at the hearing and upon the merits of a suit. A temporary or interim injunction, on the other hand, may be granted on an interlocutory application at any stage of a suit. Injunction is called temporary, for it endures only until the suit is disposed of or until further orders of the court. Injunction, being in the nature of preventive relief, is generally granted taking note of equity. However, the Court has no jurisdiction to grant by way of interim relief what could never be granted in main suit itself. Both the parties, plaintiff as well as defendant, can approach the Court beseeching vouchsafe of temporary injunctions and an order granting temporary injunction, i.e. a stay order preserves the rights of the parties for the period it remains in operation, but it does not confer any right which it does not recognise. In interlocutory proceedings, the Court can express only its tentative view, which does not cause any prejudice to concerned party. [Vide: Prem Chand v. Manak Chand AIR 1997 Raj 198; Sathyabhama Ammo v. Vijaya Amma AIR 1995 Ker. 74; Ashok Kumar Aseri v. University of Jodhpur AIR 1995 Raj 33 (DB)].

Grant or refusal of interim injunction determines the fate of a suit. Due care and caution has, therefore, to be bestowed by the Court while granting or refusing an injunction. Measure should be taken by the Court to ensure even-handed justice to both parties. Expanding its view on the issue, it was opined by Dr Dalveer Bhandari, J., speaking for the Court, in Maria Maargarida Sequeira Fernandes v. Erasmo Jack de Sequeira (2012) 5 SCC 370, that "Experience has shown that all kinds of pleadings are introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession. In a large number of cases, honest litigants suffer and dishonest litigants get undue benefit by grant or refusal of an injunction because the courts do not critically examine pleadings and documents on record. In case while granting or refusing injunction, the court properly considers pleadings and documents and takes the pragmatic view and grants appropriate mesne profit, then the inherent interest to continue frivolous litigation by unscrupulous litigants would be reduced to a large extent."

In the words of White C.J. "The granting of a temporary injunction under the powers conferred by this (rule) is a matter of discretion. True it is a matter of judicial discretion. But if the court which grants the injunction rightly appreciate the facts and applies to those facts the true principles, then that is a sound exercise of judicial discretion." [See: Subba v. Haji Badsha (1903) ILR 26 Mad 168, 174 White CJ per]. One of those principles is that the Court in granting a temporary injunction must first see that there is a bona fide contention between the parties, and then, on which side, in the event of success, will lie balance of inconvenience if injunction does not issue. Or, as stated in the judgment of Cotton LJ in Preston v. Luck (1887) 27 CD 497, 506, to entitle a plaintiff to an interlocutory injunction, the court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a probability that the plaintiff is entitled to relief. The real point, upon an application for a temporary injunction, is not how the question ought to be decided at the hearing of the case, but whether there is a substantial question to be investigated and whether matters should not be preserved in status quo until that question can be finally disposed of. The object of the injunction is to preserve the status quo. In issuing a temporary injunction, the tests to be applied are:

(i) Whether the plaintiff has a prima facie case;

(ii) Whether the balance of convenience is in favour of the plaintiff; and

(iii) Whether the plaintiff would suffer an irreparable loss if his prayer for temporary injunction is disallowed.

The phrases 'prima facie case', 'balance of convenience', and 'irreparable loss', are words of width and elasticity to meet myriad situations presented by man's ingenuity in given facts and circumstances but they must always be hedged with a sound exercise of judicial discretion to meet the ends of justice. A prima facie case implies the probability of the plaintiff obtaining a relief on the material placed before the court. Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case. For establishing a prima facie case, it is not necessary for the party to prove his case to the hilt and if a fair question is raised for determination, it should be taken that a prima facie case is established. The plaintiff must also establish the balance of convenience in the event of withholding the relief of temporary injunction will, in all events exceed that of the defendant in case he is restrained. The plaintiff must also show a clear necessity for affording protection to his alleged right which would otherwise be seriously injured or impaired. The principle of balance of convenience implies the evenly balancing of scales. The term 'irreparable injury' means injury which is substantial and could never be adequately remedied or atoned for by damages, injury which cannot possibly be repaired. It implies a substantial and continuous injury for which there does not exist any standard for ascertaining the actual damage likely to be caused. It is most apposite to mention here that 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, that cannot be adequately remedied or compensated by way of damages. [Vide: Subodli Gopal Bose v. Province of Bihar AIR 1950 Pat 222; Raju Maheshwar Dayal Sseth v. Yuvraj Dutta Singh AIR 1946 Oudh 42; Doherty v. Allman (1878) 3 App Cas 709; Subba v. Haji Badsha (1903) ILR 26 Mad 168, 175; Firm Ram Kishun Shah Itwari Sahu v. Jamuna Prasad AIR 1951 Pat 469; Israil v. Shamser (1914) ILR 41 Cal 436, 442-43, 21 IC 861; Nanabhai v. Janardhan (1888) ILR 12 Boim 110; Hemanta v. Baranagore (1914) 19 CWN 442, 24 IC 313; Civil Station Sub-Committee, Nagpur v. Govindrao 1937 ILR Nag 33, 170 (C 239, AIR 1937 Nag 137; LD Meston Society v. Kashi Nath Misra AIR 1951 All 558; Sitaram Banwari Lal AIR 1972 Cal 105].

At the stage of deciding an Application for temporary injunction, the Court is not required to go into the merits of the case. What the court has to examine is: (i) the plaintiff has a prima facie case to go for trial; (ii) the protection is necessary from that species of injuries known as irreparable before his legal right can be established; and (iii) that the mischief of inconvenience likely to arise from withholding injunction will be greater than what is likely to arise from granting it. Where no violation of the rights of the plaintiff is involved, the interim injunction should not be granted. [See: Dalpat Kumar v. Prahlad Singh AIR 1993 SC 276; Shiv Shanker Goyal v. Municipal Council, Ajmer AIR 1997 Raj 176; Sanjay Tandon v. Sarabjit Singh AIR 1997 Del 380 (DB); Gadadhar Mishra v. Biraja Devi AIR 1999 Ori 226; Graftek Pvt. Ltd v. Shri Lord Lingaraj Mahaprabhu AIR 1999 Ori 49; Kirloskar Diesel Recon Pvt Ltd v. Kirloskar Proprietory Ltd AIR 1996 Bom 149; Multichannel India Ltd v. Kavitalaya Productions Pvt Ltd AIR 1999 Mad 59; Sanjeev Kumar & Co v. Bishnu Prasad AIR 1999 Ori 90; CJ International Hotels Ltd v NDMC AIR 2001 Del 435].

In a case of Zenit Mataplast P. Ltd v. State of Maharashtra (2009) 10 SCC 388, the Supreme Court has held that an interim injunction should be granted by the court after considering all the pros and cons of a case. The order can be passed on settled principles taking into account the three basic grounds, i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the court can be good ground for refusal to grant interim relief.

This Court in Masood Ahmad v. Arif Ahmad Shah 2012 (4) JKJ 231 [J&K], has held that grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequence, depending upon the nature thereof. The courts, dealing with such matters, must make all endeavours to protect the interest of the parties. For the said purpose application of mind on the part of the courts is imperative. Contentions raised by the parties must be determined objectively. This Court also said that the relief claimed, if they succeed in the suit, can be measured by money and the plaintiffs can be compensated in terms of money. In terms of mandate of Specific Relief Act read with mandate of Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, when amount is ascertained and can be calculated, no ad interim relief can be granted. This is so for the simple reason that if tomorrow the plaintiff succeeds in the suit, he can be properly compensated by directing defendants concerned to pay the amount of compensation.

Injunctions and stay orders should not be granted mechanically without realising the harm likely to be caused to opposite party. It is only when a claim is made in the suit which, if established, would entitle the plaintiff to relief by way of injunction, that interim relief could be granted by way of temporary injunction, so that a relief in the suit might not be rendered infructuous. Accordingly, if no such relief is claimed, no interim injunction could be granted. An injunction will not be granted where the plaintiff has a remedy by way of damages. The injury must be irreparable and it must be continuous. It is well settled law that while passing ad interim injunction, the Court is to keep in mind the guiding principles viz. prima facie case, balance of convenience and irreparable loss. The Courts have to consider grant of interim relief at an interlocutory stage when the existence of legal rights assailed by plaintiff and its alleged violation are both contested and remain uncertain till they are established at trial. While considering grant of interim injunction to mitigate risk of injustice, the Court has also to weigh the corresponding need of defendant to be protected, against injury resulting from his having been prevented from exercising his own legal rights, for which he could not be adequately compensated. The balance of convenience has to be evaluated on said touchstone. Irreparable loss is another condition for grant of interim injunction and constitutes third important principle. It means that irreparable injury likely to occur as a result of withholding of injunction must be such that it cannot be adequately compensated by way of damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. Same is true about the present case. The court must weigh one need against another and determine whether the balance of convenience lies. Reference in this regard may be made to Nandan Pictures Ltd v. Art Pictures, AIR 1956 Cal 428; Bataji Trading Co. v. Veeraswamy, (1980) 1 An WR 28; DDA v. Skipper Construction Co (Pvt) Ltd AIR 1996 SC 2005; Abbobucker v. Kunhamoo 1958 ILR Mad 720; Kittamma v. Subba Rai AIR 1959 Mys 75.

It is apt to mention here that an order of injunction is discretionary order and once the Trial Court exercises a discretion and grants or refuses to grant interim injunction, the same will not be normally interfered with by the Appellate Court, muchless by this Court under Section 104 of the J&K Constitution, unless it is found that such a discretion has been exercised arbitrarily or capriciously or perversely, or where the court ignored settled principles of law regarding the grant or refusal of interim injunction. This has been repeatedly pointed out by the Supreme Court in Ramdev Food Products (P) Ltd v. Arvindbhai Rambhari Patel and others 2006 (8) SCC 726; Wander Ltd v. Antox India (P) Ltd., 1990 (Supp.) SCC 727; Laxmikand V. Patel v. Chetanbhai Shah 2002 (3) SCC 65; and Seema Arshad Zaheer v. Municipal Corpn. of Greater Mumbai 2006 (5) SCC 282.

The purpose and object of the provision of Order XXXIX Rule 1, CPC, unequivocally envisage preservation of subject-matter of the suit, so that parties claiming their rights over subject-matter of suit have an opportunity to substantiate their respective stand and the party at the end of trial found entitled to the relief, is in a position to reap the fruits of litigation. Rule 1 of Order XXXIX prescribes circumstances in which temporary injunction can be issued. Ordinarily the Court is not to use its inherent powers to make necessary orders in the interest of justice. Civil Court generally has no inherent jurisdiction if the case is not covered under Order XXXIX, Rule 1 of CPC, to issue temporary injunction. Inherent powers are being exercised by the Court in very exceptional circumstances for which Court lays down no procedure. There is bar under Order XXXIX to grant temporary injunction against defendant whose possession is threated by plaintiff. [See: Anant Ram v. Isher Das 2010 (4) JKJ 602 (J&K); Tsering Narboo v. Tashi Phonchok, 2009 (1) JKJ 467 (J&K)].

The essential requirements that are to be made out by a plaintiff for grant of temporary injunction have been laid down by the Supreme Court in Seema Arshad Zaheer and others v. Municipal Corporation of Greater Mumbai and others, (2006) 5 SCC 282. Those are:

(i) Existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction;

(ii) When the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's right or likely infringement of defendant's right, the balance of convenience tilting in favour of plaintiff; and

(iii) Clear possibility of irreparable injury being caused to 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.

Under Order XXXIX, CPC, the Court, exercising an equitable jurisdiction, cannot overlook conduct of the party as held by the Supreme Court in the case of M/s Gujarat Bottling Co. Ltd and others v. Coca Cola Company and others, AIR 1995 SC 2372. The Supreme Court held that under Order XXXIX, CPC, the jurisdiction of the Court to interfere with an order of interlocutory or temporary is purely equitable and, therefore, the Court on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person, seeking an order of injunction under Order XXXIX Rule 1 or Rule 2 of the Code, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings.

In the present case, learned Trial Court as well as Appellate Court, after going through respective pleadings of the parties, have rightly passed impugned orders.

In Bharat Aluminium Co. v. Kaiser Aluminium Technical Service Inc, (2012) 9 SCC, 552, it was held that the interim relief claimed for, itself, must be a part of a substantive relief to which plaintiff's cause of action entitled him. Hence, a suit only to claim interim injunction is not maintainable.

It is the settled law that when a party lacks existence of a prima facie case, the other two requirements such as balance of convenience and irreparable loss lose their significance. However, if a prima facie case exists, which is, otherwise, sine quo non for grant of interim injunction, it would be sufficient to exercise jurisdiction if one of the other two factors, viz. balance of convenience and irreparable loss, also exists. The judicial discretion cannot be guided by expediency. The Courts are not free from statutory fetters. The justice is to be rendered in accordance with law. The judges are not entitled to exercise the discretion wearing the robes of judicial discretion and pass the orders based solely on their personal penchants and unusual dispositions. The judicial discretion, wherever it is required to be exercised, has to be in accordance with the law and set legal principles. This is the dictum of the Supreme Court in M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464.

In Kashi Math Samsthan and another v. Srimad Sudhindra Thirtha Swamy and another, A.I.R 2010 S.C. 296, it has been held by the Supreme Court that in order to obtain an order of injunction, the party, seeking grant of such injunction, has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove a prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove a prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted.

What is discernible from the file on hand, is that defendants/respondents, having been prima facie in possession of subject-matter of writ petition, would be put to irreparable loss and inconvenience if their possession is not protected.

Based on foregoing discussion, I do not see any reason to interfere with the discretion exercised by learned Trial Court while refusing to grant an injunction in favour of petitioners vis-à-vis subject-matter of writ petition or to interfere with the order passed by learned Appellate Court.

In view of the above, writ petition sans any merit and is, accordingly, dismissed with connected MP.