1978 Supreme(Raj) 361
RAJASTHAN HIGH COURT
S.K.Mal Lodha, J.
Deva and Ors. - Appellant
Versus
Godar and ors. - Respondent
S.B. Civil Revision No. 342/1978.
Decided On : 11-11-1978
Advocates:
For the Petitioner:R.L. Purohit, Anuplal Jain & G.P. Rakecha, Advocate.
For the Non-petitioner:D.S. Shishodia, Advocate.
A temporary injunction can only be granted if the plaintiff satisfies all three conditions: prima facie case, balance of convenience and irreparable injury. A mandatory injunction to restore the status quo ante can only be granted to restore the possession as it existed on the date of the suit.
Headnote:
TEMPORARY INJUNCTION - EASEMENT RIGHT OF WAY - ORDER 39 RULES 1 AND 2 READ WITH SECTION 151, CIVIL PROCEDURE CODE - CONDITIONS FOR GRANT OF INTERLOCUTORY INJUNCTION - BALANCE OF CONVENIENCE AND IRREPARABLE INJURY - MANDATORY INJUNCTION TO RESTORE STATUS QUO ANTE.
Fact of the Case:
Plaintiffs filed a suit for declaration and permanent injunction against the defendants, claiming an easement right of way by prescription over the defendants' land. They also filed an application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151, Civil Procedure Code. The trial court granted the injunction, but the appellate court set it aside.
Finding of the Court:
The High Court held that the trial court erred in granting the temporary injunction because the plaintiffs failed to satisfy all three conditions for the grant of such an injunction: prima facie case, balance of convenience and irreparable injury, and that the mandatory injunction to restore the status quo ante could not be granted as it was not based on the situation as it existed on the date of the suit.
Issues: 1. Whether the plaintiffs had satisfied the conditions for the grant of a temporary injunction? 2. Whether the mandatory injunction to restore the status quo ante could be granted?
Ratio Decidendi: 1. The court held that the plaintiffs failed to satisfy the conditions for the grant of a temporary injunction because the balance of convenience and irreparable injury did not favor them, as they had an alternative way available to them for going to their fields. 2. The court held that the mandatory injunction to restore the status quo ante could not be granted as it was not based on the situation as it existed on the date of the suit.
Final Decision: The High Court dismissed the revision application and directed the parties to appear before the trial court on a specified date.
JUDGMENT
1. - This is a plaintiff's revision against the order of the learned District Judge, Udaipur dated September 14, 1978 by which he vacated the order of temporary injunction dated August 28, 1978 passed by the learned Munsiff, Kanor and arises out of an application filed by the plaintiffs-petitioners under Order 39 Rule 1 read with Section 151, Civil Procedure Code.
2. The plaintiffs-petitioners instituted a suit for declaration and permanent injunction against the defendants-non-petitioners in the court of Munsiff, Kanor alleging that they have been using the disputed land marked MN and the entrance marked XY shown in the plan appended to the plaint for going to their fields bearing Khasras Nos. 363 and 361. It was also mentioned that for cultivation and for bringing the harvest & crop by ballock carts, the way marked MN has been continuously used by them and that is the only way for going to the plaintiffs' fields It was prayed in the plaint that the defendants maybe restrained by means of permanent prohibitory injunction from interfering with their right of way as stated by the plaintiffs. The suit was based on acquisition of easement right of way by prescription. The alleged right of way has been claimed through the field bearing khasra No 359 of the defendants Along with the plaint, an application under Order 39 Rule 1 and 2 read with Section 151, Civil Procedure Code was submitted on July 21, 1978. praying for issuance of a temporary injunction It appears that on this application, an exparte Older was made On July 25. 1978, the plaintiffs submitted an application that after the issuance of the exparte interlocutory injunction the defendants had raised a sand wall 2'high at the entrance marked XY whereby obstructing the way by which the plaintiffs used to take their bullock cards to their fields. It was, therefore, prayed that mandatory injunction, be issued for the removal of the aforesaid sand wall. This application for the issuance of the interlocutory mandatory injunction was opposed by the defendants stating that the application has been filed by suppressing true facts in as much as on a portion of khasra No. 359, Jawar had been sown and the crop of duration of 20 days has been standing on it. It was also stated that the plaintiffs have another way near the railway crossing between Kanor and Pit pure and it was therefore submitted on their behalf that status quo, as it existed on the date of the suit and subsequent thereto may be allowed to be maintained. In view of the allegations & the counter-allegations in this regard made by the parties, the Commissioner was appointed by the court for site inspection and the Presiding Officer of the court also inspected the site. After arguments, the learned Munsiff found that all the three conditions necessary for the grant of the temporary injunction were satisfied and, therefore, he directed that the sand wall be removed and the defendants should not interfere with the plaintiffs' alleged right of way marked MN through the entrance XY for going to their fields. He gave certain other and lliary directions in this regard Being dissatisfied with the order of the learned Munsiff granting interlocutory injuncrion in mandatory and prohibitory forms, the defendants went in appeal and the learned District Judge, by his order dated September 14, 1978 accepted the appeal and set aside the order of the learned Munsiff dated August 28, 1978 & dismissed the plaintiffs' application under Order 39 Rules 1 and 2 read with Section 151, Civil Procedure Code.
3. Aggrieved by this order of the learned Distict Judge, Udaipur dated September 14, 1978, the plaintiffs have come up before this Court in revision. It may be stated here that while disposing of the appeal, the learned District Judge found that so far as the condition of prima facie case is concerned, it exists in favour of the plantiffs. As regards the balance of convenience and irreparable injury, the learned Judge observed as unde
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