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1972 Supreme(Ori) 116
IN THE HIGH COURT OF ORISSA
S.K. Ray, J.
NAYAN KUMARI DEI - APPELLANT
Versus
BHAGABAT SAHU AND OTHERS - RESPONDENT
Civil Revision No. 274 of 1971
Decided On : 12-10-1972
N.K. Das and K.C. Mohanty, for the Appellant; B.H. Mohanty and P.K. Sahu, for the Respondent
The grant of injunctions is discretionary and requires the court to consider whether the plaintiff has made out a fair prima facie case, whether irreparable injury will occur without an injunction, and whether there is any other remedy available.
Headnote:
INJUNCTION - GRANT OF - PRIMA FACIE CASE - BALANCE OF CONVENIENCE - DISCRETION OF COURT - JUDICIAL EXERCISE - INTERFERENCE BY HIGHER COURT.
Fact of the Case:
Plaintiff filed a suit for declaration of right, title, and interest in the suit-land, recovery of possession, and permanent injunction against defendants 1 to 4. Plaintiff claimed to have purchased the land from the defendants' father and alleged that the defendants damaged the paddy seedlings and carried away the paddy grown by her. The defendants claimed bhag-tenancy rights and continuous possession of the land.
Finding of the Court:
The lower Appellate Court set aside the trial court's order of temporary injunction, holding that the plaintiff failed to make out a prima facie case of actual physical possession of the land after her purchase and that the defendants had established a prima facie case of their cultivating possession. The court found that the plaintiff never acquired peaceful possession of the land and that the defendants' assertion of possession and cultivation from the commencement of the agricultural year 1968-1969 was probable.
Issues: Whether the lower Appellate Court erred in setting aside the trial court's order of temporary injunction.
Ratio Decidendi: The grant of injunctions is discretionary, and the court must be satisfied that the plaintiff has made out a fair prima facie case, that irreparable injury will occur without an injunction, and that there is no other remedy. The lower Appellate Court considered the evidence and circumstances and concluded that the plaintiff failed to establish a prima facie case of possession and that the balance of convenience was not in favor of granting an injunction. The court's decision was based on a judicial and correct legal analysis of the facts and circumstances.
Final Decision: The revision petition was dismissed, and the lower Appellate Court's order setting aside the temporary injunction was upheld.
JUDGMENT :
S.K. Ray, Ag. C.J.
1. This revision is by the Plaintiff from the Appellate order of the District Judge, Cuttack, setting aside the order of temporary injunction passed by the trial Court.
2. The Plaintiff filed a suit for declaration of right, title and Interest in respect of the suit-land, for recovery of possession of the same, and for permanent injunction restraining the defendants from interfering with her possession. This order of injunction was sought against Defendants 1 to 4.
The case of the Plaintiff may be briefly stated:
The suit-land consists of two plots viz., plot No. 1147, and 717, appertaining to Khata Nos. 239 and 276 respectively in Mouza Korua. Admittedly these plots belonged to one Mohani Sahu father of Defendant-5. Upon the death of said Mohani Sahu, Defendants inherited the suit property and sold the same to the Plaintiff on 12-3-1968 for a consideration of Rs. 2900/- within 3 months of her purchase the Plaintiff Instituted a criminal case against Defendants 1 to 4 u/s 427, Indian Penal Code, alleging that on 24-6-1968 they damaged the paddy seedlings on the suit-land. The Defendants were acquitted in that case. Thereafter, these Defendants, 1 to 4, out and carried away the paddy alleged to have been grown by the Plaintiff on the suit-land on 7-1-1970 under a claim of bhag tenancy right. This gave rise to the cause of action for instituting the present suit. She also filed a petition for issue of injunction against these Defendants 1 to 4 restraining them from causing obstruction to the Plaintiff in cultivating the suit-land and from dispossessing her therefrom.
3. The main plea of the Defendants is that they are the bhag-tenants in respect of the suit land since the time of the Plaintiff?s vendor, and are in continuous possession thereof even after the Plaintiff?s purchase. They are also paying the water-rent for the land.
It will be seen that the Defendants do not contest the title of the Plaintiff, but claim merely a bhag-tenancy right in other words, they claim actual physical possession of the land in suit.
4. The principal considerations in the matter of grant of injunctions is that the Court must be satisfied that the plain, tiff has made out a fair prima facie case and that irreparable injury will accrue to him if no injunction is granted and that there is no other remedy open to him by which he could protect himself from the consequence of the apprehended injury and that the apprehended injury must be a material one i.e. one that cannot be adequately compensated for in damages. Grant of injunction is discretionary but the discretion must be, exercised by the Court judicially and not arbitrarily. It is therefore to be seen if the lower Appellate Court has exercised his discretion Judicially in the aforesaid legal perspective. If he has done so his order cannot be interfere with.
5. Both parties filed documents in support of their respective contentions. The Plaintiff filed her sale-deed, three rent-receipts granted to her by the Tahasildar after her purchase, and a notice issued by the water-rate department to the originally recorded tenant Mohani Sahu, and two unstamped receipts dated 27-3-1966 and 3-4-1967, purported to have been granted by Defendant-5 to the husband of the Plaintiff showing payment of bhag-paddy by the latter to the former. The case of the Plaintiff in this regard is that before her purchase she, through her husband was in cultivating possession of the suit-land on bhag under Defendant-5.
On behalf of the Defendants some documents were filed. They are two water-rate parchas of the years 1958-59 and 196263 issued in their favour in respect of the suit plot 717, a notice issued by the water-rate department to Defendant-1 directing him to pay water-rent in respect of the suit-property from the year 1963-64, and a certified copy of the judgment of acquittal passed in their favour in the aforesaid criminal litigation.
6. The trial Court granted the injunction being satisfied that th
