Honble SINGH, J. – This is defendants revision arising out of injunction matter.

(2). In a suit for permanent injunction ,the plaintiff filed an application under Order 39, Rules 1 and 2 of the Civil Procedure Code. It was stated that he had a shop situated at Khetri Nagar.Its dimension was given as 24x 10 1/2. The defendantsshop was situated towards the West of his shop. Both the shops were facing North.

(3). Towards the North of these shops,there was a road running East- West. There was an open space between the shops and the road. It was the `patriof the road and did not belong to either party. It was used by customers for access to the shops.

(4). Defendants (revisionists) constructed a balcony in front of the shop.It was an unauthorised construction. In January, 1993, the defendants furrther tried to encroach upon 5 land forming parrt of the road `patri towards the North of the shop. Some portion of the land in front of the shop of the plaintiff was also encroached. This caused obstruction in the movement of the customers,visiting his shop.

(5). Accordingly, the plaintiff made a prayer in the application for injunction, restraining the defendants from making any construction on the open space towards the North of the shop.

(6). Defendants filed their objection, denying the plaintiffs case for grant of temporary injunction .

(7). The trial Court rejected the injunction application, but the finding was recorded that the plaintiff had established his prima-facie case. Against the said order, an appeal was filed by the plaintiff. Defendants filed cross-objection against the finding on the question of prima-facie case.

(8). The lower appellate court allowed the plaintiffs appeal on September 14,1994 and rejected the defendants`cross-objection.The injunction application was allowed. Defendants were restrained from raising any construction towards the Northern side of the shop. This revision is directed against the said order of the appellate Court.

(9). Mr.Alok Sharma, appearing on behalf of the Revisionists,contended that the finding on the question of prima facie case was recorded by the courts below without any material on record. They have misdirected themselves in recording this finding. I find no merit in the contention.

(10). In order to make out a prima facie case, the plaintiff need not establish his title. It is enough if he can show that he has a fair question to raise as to the existence of the right which he alleged and can satisfy the Court that the property in dispute should be preserved in its present actual condition and the defendants have no right to encroach upon the same. In the instant case, both the courts below have recorded categorical finding of fact that the plaintiff has established prima-facie case. This question of fact cannot be gone into revision by this court. I am of the view that the findings do not suffer from any jurisdictional error.

(11). In order to obtain an interlocutory injunction it is not enough for the plaintiff to show only that he has a prima facie case. He must show that in the event of with-holding the relief for temporary injunction, he will suffer an irreparable injury. He has also to make out a case that in case of success in the suit , the encroachment whereof is complained against, will not have a proper remedy of being awarded adequate damages.

(12). While taking into consideration the comparative mischief or inconvenience to the parties, the court has to satisfy that the balance of covvenience was in favour of the plaintiff or in other words , his inconvenience in the event of with holding the relief for temporary injunction will, in all the events, exceed to that of defendant, in case he is not restrained.

(13). The next submission of Mr.Sharma is that the appellate court has substituted its own finding on the question on balance of convenience and irreparable injury which according to him should not have been done by it. This submission is also devoid of merit. The appellate court

Click Here to Read the rest of this document