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1986 Supreme(Bom) 176
IN THE HIGH COURT OF BOMBAY
V.V. Vaze, J.
Rameshchandra Jamnadas Co..... Appellants.
Versus
Terene Traders another .... Respondents.
Appeal From Order No. 682 of 1983 with Appeal From Order No. 639 of 1983, decided on 1-7-1986.
Advocates appeared :
K.J. Abhyankar with H.V. Chande, for appellants.
H.A.Solkar, for Bharat Zaveri, for respondent No. 1.
P.A. Jani, instructed by Messrs, Gagrat and Co., for respondent No. 2.
A prima facie case and balance of convenience are essential for granting a temporary injunction.
Headnote:
INJUNCTION - POSSESSION - SECTION 38 OF THE SPECIFIC RELIEF ACT, 1963 - A prima facie case and balance of convenience are essential for granting a temporary injunction. The plaintiff must show that the claim is not frivolous or vexatious and that there is a serious question to be tried. The balance of convenience should be in favor of the plaintiff.
Fact of the Case:
Rameshchandra Jamnadas and Company, a partnership firm, was allowed to use a portion of Shop No. 638, Dwarkesh Galli, Mulji Jetha Market, by the tenant, J. Narandas and Co. Rameshchandra used the shop for carrying on the wholesale business in textiles from 1974 to 1982. However, in 1982, Terene Traders, another tenant in the shop, obstructed Rameshchandra's entry. Rameshchandra filed a suit in the City Civil Court at Bombay seeking an injunction against Terene Traders and joined his licensor Narandas and Company as defendant No. 2. The City Civil Court dismissed Rameshchandra's Notice of Motion for injunction.
Finding of the Court:
The High Court found that Rameshchandra had established a prima facie case and that the balance of convenience was in his favor. The court held that Rameshchandra had been in permissive possession of the shop for a long period of 8 years from 1974 to 1982 and that his claim was not frivolous or vexatious. The court also held that the balance of convenience was in favor of Rameshchandra as enjoining him from using the shop would mean enjoining him from doing something which he had been doing for the past eight years.
Issues: 1. Whether Rameshchandra had a prima facie case for injunction? 2. Whether the balance of convenience was in favor of Rameshchandra?
Ratio Decidendi: The court held that a prima facie case and balance of convenience are essential for granting a temporary injunction. The plaintiff must show that the claim is not frivolous or vexatious and that there is a serious question to be tried. The balance of convenience should be in favor of the plaintiff. In the present case, the court found that Rameshchandra had established a prima facie case and that the balance of convenience was in his favor. Therefore, the court granted the injunction.
Final Decision: The High Court allowed the appeal, set aside the order of the City Civil Court, and made the Notice of Motion absolute in terms of prayer (a) subject to the modification that injunction will operate against the defendant No. 1 only when the plaintiff intend to use the red hatched portion in Exhibit 'B' annexed to the plaint during the normal business hours.
2. One such shop belonging to the Company was shop No. 638, Dwarkesh Galli, Mulji Jetha Market, of which J. Narandas and Co., are concededly the tenants of the Company. One of the partners of J. Narandas and Co., is related to Rameshchandra of Rameshchandra Jamnadas and Company, a partnership firm and at instance of the original tenant Rameshchandra was allowed use and occupation of certain premises of the shop No. 638 during the normal business working hours for carrying on the wholesale business in textiles. Terene Traders were permitted a like use of the shop and though there is a dispute as to whether Rameshchandra was included by Terene Traders or by Narandas, it is undisputed that from 1974 till 1982 Rameshchandra Jamnadas and Company continued to use the same portion of the shop.
3. Unlike retail outlets which have necessarily to have a large showroom to cater to the needs of the customers, a sketch annexed to the plaint shows that the shop in question is a small one containing racks for stacking textile samples, in front of which are two otlas where the traders can sit to strike a deal with the whole-sale buyers--- mostly upcountry. The inner portion of the shop housing the racks of the cloth samples can be closed by rolling shutter leaving the otlas unguarded.
4. Rameshchandra have been alleging that this otla on the Southern portion was in their possession while the one on the Northern portion was being used by Terene Traders.
5. It appears that Rameshchandra and Terene Traders carried on business as usual in this shop for a fairly long period of 8 years from 1974 to 1982. But an unfortunate event gave a set-back to his business of the former. On 4th June, 1982 some of the creditor of Rameshchandra in Suit No. 2968 of 1982 obtained an order of attachment of his property. Contretemps of business made a doleful Rameshchandra keep away from a prestigious market like Mulji Jetha Market for a considerable time. After a year, when Rameshchandra thought he had rehabilitated himself and wanted to resume his activitie
