Prabha Sharma vs The State of Madhya Pradesh

Sanjay Yadav, J—Heard on admission.

Plaintiff being aggrieved of rejection of application under Order 39 Rule 1 & 2 of the Code of Civil Procedure, 1908 by order dated 05.09.2013 has preferred this appeal.

In a suit for declaration of title and permanent injunction over land admeasuring 62x38 = 2357 sq.ft. being part of Khasra No. 3785 and the land adjacent therewith admeasuring 92.6x66.6=6151 sq.ft. on the ground of being in possession thereover since 1954-55, yet the Tehsildar in exercise of his powers under Section 248 of the M.P. Land Revenue Code, 1959 has proceeded against the plaintiff despite of the fact that in a judgment and decree dated 28.07.2006 in Civil Appeal No. 47-A/2006 it has been held that the plaintiff be not dispossessed from 990 sq.ft.of khasra No. 3785. On the self same ground plaintiff sought interim injunction/temporary injunction.

The trial Court taking into consideration the material evidence on record found that the plaintiff could not prima facie prove to be in possession over 2357 sq.ft of Khasra No. 3785 and the land adjacent therewith admeasuring 6157 sq.ft.

The trial Court found :

The finding that the State Government has taken over the possession of suit property is based on material on record.

Trite it is that while exercising the discretion for grant of an interim injunction during pending of a suit following three tests are applied, viz, (i)whether plaintiff has a prima facie case (ii) whether balance of convenience is in favour of the plaintiff and (iii) whether the plaintiff would suffer an irreparable injury if Temporary injunction is declined. These parameters are to achieve the object to protect the plaintiff from an injury which cannot be compensated adequately.

In Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, AIR 1990 SC 867 : (1990) 1 JT 199 : (1990) 1 SCALE 166 : (1990) 2 SCC 117 : (1990) 1 SCR 332 it is observed:

"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief.

Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

In Hindustan Petroleum Corporation Ltd. Vs. Sri Sriman Narayan and Another, AIR 2002 SC 2598 : (2002) 2 ARBLR 619 : (2002) 5 JT 335 : (2002) 5 SCALE 132 : (2002) 5 SCC 760 : (2002) AIRSCW 2907 : (2002) 4 Supreme 546 it is held:

"8. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial the relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in 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 the 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 Court must weigh one need against another and determine where the "balance of convenience" lies. (See M/s. Gujarat Bottling Co. Ltd. and others Vs. Coca Cola Company and others, AIR 1995 SC 2372 : (1995) 2 ARBLR 249 : (1995) 84 CompCas 618 : (1995) 6 JT 3 : (1995) 4 SCALE 635 : (1995) 5 SCC 545 : (1995) 2 SCR 514 Supp : (1995) 2 UJ 698 .

The case at hand when tested on the anvil of law laid down in Dorab Cawasji Warden V. Coomi Sorab Warden and Hindustan Petroleum Corporation Ltd. V. Sriman Narayan (supra) and material on record no interference is warranted.

In the result appeal fails and is dismissed. No costs.