Pramod Jatav & Ors. vs Rajeev Sharma & Anr

Present petition invoking supervisory jurisdiction of this Court u/Art. 227 of the Constitution of India assails the order dated 20.02.2018 passed in

Misc. Appeal No. 9/2017 under Order 43 Rule 1 CPC affirming the order of the trial court dated 09.03.2017 in Civil Suit No. 26A/2015 rejecting the

application seeking temporary injunction preferred by the plaintiff in a suit for permanent injunction for restraining the defendant No.1 from mutating

his name in the record.

An application for temporary injunction was filed by the plaintiff / petitioner which has been dismissed by order dated 09.03.2017 by the trial court

by finding that neither a prima facie case is made out nor there is balance of convenience in favour of the plaintiff and also the factum of irreparable

loss has not been proved.

2.1 The Courts below have held that rival claims for title over the suit land has been made by the rival parties but owing to considerable delay of about

7-8 years on the part of the plaintiff to execute the sale deed and also there was delay in mutation based on the said sale deed, the claim of the

plaintiff was held by the courts below to be not as strong as that of the defendant.

From the above findings of the courts below, it is evident that it was only due to lesser degree of reliability of the material placed by the plaintiff in

support of his claim for title over the suit land which persuaded the courts below to reject the request for temporary injunction. However, the trial

court has taken cognizance of the lis and has proceeded to hear the suit on merits. Since there is serious debatable question of title and as well as

possession in the present case which is evident from the prima facie findings recorded by the courts below, this Court is of the considered view that

protection to some extent ought to have been extended to the plaintiff to enable the suit property to be maintained, preserved and prevented from being

destroyed to be available to satisfy the decree which may be ultimately passed.

This Court is bolstered in its view by the decision of this Court in Shankarlal Debiprasad Rathore Vs. State of M.P. & Ors. Reported in 1978

M.P.L.J. 419 relevant extract of which 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€​

Having thus examined the case in the light of the law laid down in case of Shankar Lal Debiprasad (supra), this Court is of the considered view that

both the courts have erred in exercise of their jurisdiction by declining temporary injunction.

Accordingly, this petition stands disposed of with direction that status quo with regard to the suit property shall be maintained by the rival parties 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.

No cost.