Uma Kant Mishra and Another vs Civil Judge (Junior Division) and Others

Anil Kumar, J.—Heard Sri Abdul Moin, Advocate assisted by Sri A.N. Trivedi, learned Counsel for the Petitioner and Sri Nripendra Kumar, Advocate holding brief of Sri Manish Kumar learned Counsel for the Respondents.

Facts in brief as submitted by learned Counsel for the Petitioner that a suit for declaration and preparatory injunction hs been filed by him registered as Regular Suit No. 150 of 2011 (Umakant v. State of U.P. and Ors.) pending before O.P. No. 1/Civil Judge(Junior Division), Court No. 13, Barabanki.

On 08.02.2011, Petitioner moved an application for grant of temporary injunction, the same was considered on 08.02.2011 (Annexure-8) thereafter court below on the basis of material on record came to the conclusion that before granting ex-parte injunction order, it is necessary to hear the Respondents/Defendants and accordingly, notices are issued to the Respondents to file objection, and the next date for disposal of the application of temporary injunction fixed as 24.02.2011.

In view of the abovesaid factual background, the present writ petition writ petition has been field by the Petitioner before this Court with the following main prayer:

(i) Issue a writ, order or appropriate direction thereby directing the Opposite party No. 1 to decide the injunction application and the Regular Suit No. 150 of 2011 (Uma Kand Mishra & anotehr v. State of U.P. and others) within stipulated time as this Hon''ble Court may be pleaded to issued.

(ii) Issue a writ, order or direction in the nature of Mandamus restraining the Respondents from interfering in the peaceful possession of the Petitoiners over Gata No. 1080 measuring 0.756 hectare situated at Gram Rendua Palhari, Post Muradabad, Pargana Deve, Tehsil Nawabganj, District Barabaki.

I have heard the learned Counsel for the Petitioner and gone through the record.

From the perusal of the order date 08.02.2011, it is clear that while considering the Petitioner''s application for grant of temporary injunction, the court below had came to the conclusion that before granting the ex parte injunction order, notice may be issued to the Defendant to hear his version.

In view of the above said factual background the question which immediately arises is that what principles should be followed by the Courts in the matter of grant of an ad-interim injunction. The answer is contained in the decision of the Hon''ble Apex Court in the case of Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, a Bench of three Judges of Apex Court has held that:

It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course, grant of injunction is within the discretion of the court and such discretion is not to be exercised in favour of the Plaintiff only if it is proved to the satisfaction of the court that unless the Defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the Plaintiff during the pendency of the suit. The purpose of temporary injection is, thus, to maintain the status quo. The Court grants such relief according to the legal principles-ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the Plaintiff including on the question of maintainability of the suit and that the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.

In the case of Dalpat Kumar and Another Vs. Prahlad Singh and Others, a Bench of two Judge of the Apex Court held that the phrases "Prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men''s ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the Plaintiff could be adequately compensated if injunction is refused.

In Woodroffe''s Law Relating to Injunctions, 2nd revised and enlarged Edn., 1992, at page 56 in para 30.01, it is stated that:

An injunction will only be granted to prevent the breach of an obligation (that is a duty enforceable by law ) existing in favour of the applicant who must have personal interest in the matter. In the first place, therefore, an interference by injunction is founded on the existence of a legal right, an applicant must be able to show a fair prima facie case in support of the title which he asserts.

In The Law Quarterly Review Vol. 109, page 432 ( at p. 446), A.A.S. Zuckerman under the title "Mareva Injunctions and Security for judgment in a Framework of Interlocutory Remedies" has stated:

The Court considering an application for an interlocutory injunction has four factors to consider; first, whether the Plaintiff would suffer irreparable harm if the injunction is denied; secondly, whether this harm outweighs any irreparable harm that the Defendant would suffer from an injunction; thirdly, the parties'' relative prospects of success on the merits; fourthly, any public interest involved in the decision. The central objective of interlocutory injunctions should therefore be seen as reducing the risk that rights will be irreparably harmed during the inevitable delay of litigation.

In view of the abovesaid fact, so far as the relief No. 2 as claimed by the Petitioner cannot be granted.

So far as the relief No. 1 is concerned for early disposal of the application for grant of temporary application, it is submitted by learned Counsel for the Petitioner submitted that a permission may be given to Petitioner to moved a suitable application in accordance with law before the court below for considering the application for grant of temporary application at an early date on or before 24.02.2011 which has been fixed for the said purpose.

The prayer so, made by the learned Counsel for the Petitioner is trivial in nature, so the interest of justice will sub-serve in the present case that the same may be considered.

Accordingly, a direction is issued to the Civil Judge (Jr. Div.), Court No. 13, Barabanki that in case if the Plaintiff/Petitioner move an application for considering his case for grant of temporary injunction for which the date is fixed on 24.02.2011, the same may be considered and decided prior to the said date after hearing the counsel for the parties. However, in case if such an application is not moved then in that circumstances a direction has been issued to the trial court to decide the matter in question on the next date i.e. 24.02.2011 if not possible on the said date then within a period of ten day thereafter after hearing the counsel for the parties on merit.

With the above observations, the writ petition is disposed of finally.

It is clarified that the this Court has not adjudicated the claim of the Petitioner on merit.