Rambahadur Prajapati vs Natthi Singh And Others

This petition under Article 227 of the

Constitution of India, at the instance of defendant No. 1 is directed against the order dated 10/05/2018 passed in appeal under Order 43 Rule 1(r) of

Code of Civil Procedure, 1908, whereby the appellate Court has granted an injunction in favour of respondents/ plaintiffs to the extent that defendant

shall not alienate the suit property during pendency of suit.

The suit at the instance of respondents No. 1 to 5 is for declaration of title and permanent injunction with regard to agricultural land bearing survey

No. 2226 Rakwa 1 Bigha 17 Biswa, survey No. 1227 Rakwa 2 Bigha 5 Biswa, survey No. 1235 Rakwa 1 Bigha 5 Biswa, survey No. 1236 Rakwa 1

Bigha 12 Biswa, survey No. 1243 Rakwa 10 Bigha 15 Biswa, survey No. 1244 Rakwa 1 Bigha 7 Biswa, survey No. 1245 Rakwa 9 Biswa, survey

No. 1246 Rakwa 3 Bigha 1 Biswa, survey No. 1262 Rakwa 5 Bigha 12 Biswa, all situated at Village and Tahsil Ambah, District Morena, inter alia,

contending that they are co-owners and in joint possession of the suit property having half of the share thereover. Along with the suit, plaintiffs also

filed an application under Order 39 Rule 1 & 2 of Code of Civil Procedure, 1908 seeking injunction against the defendants. The petitioner â€

defendant No. 1 denied the contention raised in the application under Order 39 Rule 1 & 2 of CPC.

The trial Court after taking into consideration the claim and counter-claim; affidavit and counteraffidavit, declined to cause any indulgence and

dismissed the application under Order 39 Rule 1 & 2 CPC by order dated 12/09/2017.

In an appeal, the appellate Court modified the order passed by the trial Court to the extent that during pendency of Civil Suit, the defendants shall not

alienate the property, on the findings that being co-owner and in joint possession of the property, the alienation would lead to multiplicity of litigation

and will cause prejudice to the interest of the plaintiffs. The findings to that extent find mention in paragraphs No. 13 & 19 of the impugned order.

Assailing the order, it is contended by learned counsel for the petitioner that the appellate Court grossly erred in injuncting the parties from alienating

the suit property. It is urged that the plaintiff having failed to make out prima facie case which led the trial Court to dismiss the application,

jurisdictional error committed by the appellate Court in reversing the order and granting injunction against the alienation.

Considered the submissions and perused the material on record.

Trite it is that while exercising the discretion for grant of 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 [(1990) 2 SCC 117]â€​, 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.â€​

In “Hindustan Petroleum Corporation Ltd. vs. Sriman Narayan [(2002) 5 SCC 760]â€​ 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 convenienceâ€​ lies. (See Gujarat Bottling Co.Ltd. vs Coca Cola Co. (1995) 5 SCC545 ).â€​

In the case at hand, since specific plea is taken by the plaintiffs that they are co-owners and in joint possession over the suit property, the appellate

Court was well within its right in injuncting the parties from alienating the property, as the same would definitely lead to multiplication of litigation.

In view whereof, no indulgence is caused.