The court clarified that to obtain a temporary injunction, a party must demonstrate irreparable harm, a favorable balance of convenience, and a prima facie case even without physical possession.

JUDGMENT :

BISWAROOP CHOWDHURY, J.

1.The petitioner before this Court is the plaintiff in a suit for declaration and permanent injunction and is aggrieved by the Order dated 14th February 2023 passed by the Learned Additional District Judge 3rd Court Barrackpore in Miscellaneous Appeal No-5 of 2022 whereby the Learned Judge dismissed the appeal preferred by the petitioner/Appellant filed against the Order dated 23- 03-2021 passed by Learned Civil Judge (Senior Division) 3rd Court Barasat in T.S. no-1321 of 2015 whereby the Learned Trial Judge rejected the prayer for temporary injunction filed by the plaintiff.

2. The facts of the case in brief is that the plaintiff claimed that the original suit property and other non-suit properties originally owned by one Satya Charan Law. The aforesaid owner agreed to lease the ‘A’ schedule suit property in favour of the plaintiff. The lease deed could not be executed in due time and in the mean time the said owner created a trust on 01.04.1983 and appointed Amal Chandra Law and Chaya Law as joint trustees. A fresh approach was made to the new trustees for execution of the lease deed but instead an agreement to execute a lease was made along with which possession of the property was delivered to the plaintiff. Somehow the formal lease deed was not executed by the lessors which led the plaintiff to file a suit for specific performance of contract being T.S. No. 42 of 1985 in the Court of Ld. Assistant District Judge 10th Court Alipore. The suit was decreed and the plaintiff got the registered lease deed from the Court by putting the decree into execution. One day when the plaintiff came to see his property he found that construction materials were stocked in the plot and the defendant intended to make some construction in the entire property including his leasehold land. The plaintiff came to know from the men and agents of the defendant that the defendant has already purchased the entire properties including the suit property. The plaintiff raised objection to the acts of the defendants and thereafter filed suit before Learned Civil Judge (Junior Division) 4th Court, Sealdah but on the ground of pecuniary jurisdiction the said suit was withdrawn and was re-filed before Learned Civil Judge Senior Division 3rd Court Barasat being T.S. 1321 of 2015. An application for temporary injunction was moved before the Learned Trial Court which was dismissed. The petitioners being aggrieved by the order passed by Learned Trial Court preferred an Appeal before the Learned Appellate Court. By order dated 14th February 2023 Learned Additional District Judge 3rd Court Barrackpore was pleased to dismiss the Appeal by observing and directing as follows:

‘The next question that arises at this juncture of the suit is why the appellant is claiming an order of injunction when admittedly the appellant has no physical possession over the suit property. Ld. Advocate for the appellant submitted in Court that although the plaintiff is not in physical possession of the property but in absence of any injunction order, the respondent may create several incumbrance over the property and even if the appellant succeeds in the suit then also the appellant will not be able to enjoy the fruit of the decree. To answer such question it is pertinent to state that the claim of the appellant is based on possessory right of lease and the legality and validity of the lease is put under the scanner in the suit. Even if I assume that the appellant succeed in the suit of establishing the lease as the valid one then the plaintiff/appellant can