To obtain an interim injunction, a party must demonstrate a prima facie case, irreparable injury, and balance of convenience favoring the injunction.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard Mr. Shashank Shekhar, learned counsel appearing for the appellant and Mr. J.K. Pasari, learned counsel appearing for the respondent Nos. 1, 2 and 4 to 6.

2. In view of the office note, notice upon respondent No. 3 has been validly served, however she has chosen not to appear in the matter.

3. This appeal has been filed under Order-XLIII, Rule-1(r) of the CPC, challenging the order dated 24.02.2024, passed by the learned Civil Judge (Sr. Division)-VII, Dhanbad, in M.C.A. No. 254 of 2022 [arising out of Original Suit No. 307 of 2021], whereby the learned court has been pleased to reject the application filed under Order-XXXIX, Rules 1 and 2 of the CPC.

4. Mr. Shashak Shekhar, learned counsel appearing for the appellant submits that the plaintiff-appellant has instituted the Original Suit No. 307 of 2021 for a decree of declaration that the plaintiff is entitled 1/5^th share in all moveable and immovable properties, actionable claims, ownership interest in M/s Shree Ramkrishna Mills Pvt. Ltd and estate of joint Hindu family. He submits that the prayer is also made for a preliminary decree of partition of Schedule B properties and declaring plaintiff’s 1/5^th share in Schedule B as well as other properties which may come to surface but not included in the plaint. He further submits that the appellant is happened to be the daughter of late Bihar Lal Gutgutia, who died in the year 1979 leaving behind three sons namely Ramesh Kumar Gutgutia, Suresh Kumar Gutgutia and Mahesh Kumar Gutgutia and two daughters namely Nirmala Saraf and Usha Poddar, who is the appellant herein. He submits that the wife of Late Bihar Lal Gutgutia namely Parmeshwari Devi Gutgutia also died in the year 2013 and her share is the joint family property also devolved upon the legal heirs and successors including the plaintiff and defendants. He then submits that in the year 2018-19 and 2019-20, defendant Nos. 1 and 2 had begun to dispose of the joint family properties to various persons and misappropriated the sale proceeds. He submits that till the life time of the mother of the appellant, the members of the family were united, but after her demise, the co-sharers, who were the defendants, started selling the joint family property. On these backgrounds, learned counsel submits that a petition under Order- XXXIX, Rules 1 and 2 of the CPC was filed before the learned court, however, the same was rejected by the learned court only on the ground that plaintiff had no right, title, interest and possession upon the suit property and the suit property is exclusively belongs to a private limited company.

5. Learned counsel appearing for the appellant submits that the defendant No. 2 filed the written statement separately, where in para-5 it has been admitted that Schedule-B is a property of a Private Limited Company and also this company has been formed by Late Bihari Lal Gutgutia, father of the parties, who died in the year 1979. He further submits that the partition suit is still pending, which has been admitted and now the joint family property is being sold, in view of the fact that the balance of convenience is in favour of the appellant, in spite of that the learned court has rejected the case of the appellant. He relied in the case of Antaryami Dalabehera Versus Bishnu Charan Dalbehera , reported in 2002 0 Supreme (Ori) 146, where in para-10, it has been held as follows:-

“10. In order to give a decision with the scope of Order 39, Rules 1 and 2, C.P.C. for interim injunction, law is well settled that the petitioner should establish that, there is a prima facie case; that means, the petitioner need not fulfil his case on merits at the stage of hearing on an application for injunction, but it would be sufficient for him to show that he has a fair question to raise as to the existence of his right till the question is riped for trial/disposal of the case. Then he should prove irreparable injury. Irreparable injury means, such injury