Back
1998 Supreme(Ori) 271
IN THE HIGH COURT OF ORISSA
P.k. Misra, J.
SMT. PADMINI SEKHAR DEO AND OTHERS - APPELLANT
Versus
PANKAJINI THAKUR AND ANOTHER - RESPONDENT
Misc. Appeal No. 590 of 1998
Decided On : 05-11-1998
U.K. Samal. B.R. Barik and N.P. Ray, for the Appellant; L. Mohapatra . G.K. Behera and G.K. Nayak, for the Respondent
In an application for injunction under Order 39 Rules 1 and 2 CPC, the court must consider the prima facie case, balance of convenience, and potential irreparable loss in order to determine whether to grant the injunction.
Headnote:
INJUNCTION - ORDER 39 RULES 1 AND 2 CPC - SUIT FOR DECLARATION OF TITLE AND POSSESSION - PRIMA FACIE CASE - BALANCE OF CONVENIENCE - IRREPARABLE LOSS - CONSTRUCTION ON DISPUTED LAND - UNDERTAKING BY DEFENDANTS TO GIVE VACANT POSSESSION OR POSSESSION ALONG WITH STRUCTURE - SUIT TO BE DISPOSED OF EXPEDITIOUSLY.
Fact of the Case:
Plaintiffs filed a suit for declaration of title and possession of a plot of land, claiming that the sale deed executed by defendant No. 3 in favor of defendant No. 1 was null and void as it was executed during the minority of the plaintiffs' predecessor-in-interest without seeking permission of the Court. Defendants contended that the property was sold by defendant No. 3 as Karta of the joint family for legal necessity and that they were in possession since 1971. The trial court rejected the plaintiffs' application for injunction under Order 39 Rules 1 and 2 CPC, holding that there was no prima facie case in their favor.
Finding of the Court:
The High Court held that a prima facie case had been established by the plaintiffs, but that the balance of convenience was in favor of the defendants as construction had already been completed upto roof level on the disputed land. The Court directed the defendants to give a written undertaking that they would give vacant delivery of possession of the land or land along with the structure to the plaintiffs in the extent of eventual success of the plaintiff in the suit as per the wishes of the plaintiffs without claiming any equity.
Issues: 1. Whether a prima facie case had been established by the plaintiffs? 2. Whether the balance of convenience was in favor of the plaintiffs or the defendants?
Ratio Decidendi: 1. To establish a prima facie case, it is not necessary for the plaintiff to prove the case to the hilt. The court is only required to find out a prima facie case and not that question of title has to be established by the plaintiffs at that stage. 2. In considering the question of balance of convenience, the court must consider the extent of construction already completed on the disputed land and the potential irreparable loss that may be caused to the defendants if an injunction is granted.
Final Decision: The High Court disposed of the appeal subject to the observations and directions made, and directed the trial court to dispose of the suit expeditiously.
JUDGMENT :
P.k. Misra, J. - This appeal has been filed by the plaintiffs challenging the order of the trial court rejecting their petition under Order 39. Rules 1 and 2. CPC (in short. "C.P.C."). The present appellants have filed Title Suit No. 70 of 1998 in respect of Hal Plot No. 16. Khata No. 503 measuring Ac. 0.205 decimals of land in village Talasankar, within Sundergarh Town. The suit was filed for declaration of right, title and interest and for declaration that the sale deed executed by defendant No. 3 in favour of defendant No. 1 was null and void, it was also prayed that in case it is found that the plaintiffs are dispossessed before or after filing of the suit, recovery of possession through Court be ordered. The plaintiffs have further prayed for permanent injunction restraining defendants 1 and 2 from entering upon disputed land. It is claimed in the suit that the disputed properly belonged to the late husband of plaintiff No. 1 and late father of plaintiffs 2 and 3. It is further alleged that defendant No. 3. the elder brother of father of plaintiff's 1 and 2. executed sale deed during minority of late Bharatendra Sckhar Deo. the predccessor-in-interest of the plaintiffs. It is further stated that since the property of a minor had been alienated without seeking permission of the Court, the same was illegal and void. It is alleged that the plaintiff's in spite of the sale deed are still continuing in possession.
2. Defendants-opposite parties 1 and 2 had filed counter to the application under Order 39. Rules 1 and 2. C.P.C. and had contended that the property had been sold to litem by defendant No. 3 as Karta of the joint family for legal necessity and as such the same was bidding. It was further contended that defendants 1 and 2 arc in possession of the disputed property since the date of sale, that is to say since 1971.
3. The trial court found that there was no prima facie case in favour of the plaintiffs, inasmuch as, the alienation which had taken place in 1971 had not been challenged for a long period. The trial court further held that since there was no prima facie case in favour of the plaintiffs, there was no necessity for discussing the question of irreparable loss and balance of convenience.
4. In this appeal, the learned counsel for the plaintiff-appellants submitted that the finding of the trial court that there was no prima facie case in favour of the plaintiffs cannot be accepted. After going through the order passed by the trial court. I tend to agree with the contention of the appellants. For establishing a prima facie case, it is not necessary for the plaintiff to prove the case to the hill. The law is well settled that the court is only required to find out a prima facte case and not that question of title has to be established by the plaiutiffs at that stage. On going through the allegations contained in the plaint, at this stage, it cannot be said that no prima facie case has been established by the plaintiff's
5. However, as held in the decision reported in A.I.R 1993 Supreme Court 276 (Dalpat Kumar and another v. Prahlad Singh and others) mere existence of prima facie case would not entitle a plaintiff to obtain an order of injunction: The court has is consider the question or irreparable less and balance of convnience From the submissions made by the counsels, it appears that some connstruction already been raised on the disputesd plot. It is of course, true that the learned counsels for the applicants submits that construction has been forcibly made during the pendency of the suit while the petition under Order 39. Rules 1 and 2. C.P.C. was being considered by the trial court. It has further been submitted by the counsel for the appellants that even after an interim order was passed by this Court restraining the respondents from making any construction on the disputed land, the height of the construction has been raised upto roof level in violation of the order passed by this Court. The learned
