The need for a clear prima facie finding of possession before granting interim mandatory injunction

JUDGMENT :

Sanju Panda, J. - This is an application under Article 227 of the Constitution of India. Challenge has been made in this Writ Petition to the Order Dated 23.5.2008 passed by the Learned District Judge, Puri in FAO No. 31 of 2008 confirming the Order Dated 6.2.2008 passed by the Learned Civil Judge (Senior Division), Nimapara in Interim Application. No. 94 of 2007 arising out of C.S. No. 166 of 2007.

2. The Petitioner is Defendant No. 1 and Opposite Parties 1 to 4 are the Plaintiffs. The disputed properties belong to Gopinath Nath. He established a medicine store in Schedule-A property. After the death of Gopinath, the Plaintiffs being the successors-in-interest were managing the said medicine store. On 16th December, 2007, Defendants tactfully put a lock over the lock put by the Plaintiffs on the wooden door of the said medicine store and when the Plaintiffs on 17th December, 2007 went to open the medicine shop, they came 11 know about the Illegal act of the Defendants and when they tried to remove the said lock, the Defendants threatened them to kill and being afraid they returned to their house. After knowing the mischief of the Defendants, they filed the suit and also filed an interim application seeking ad interim mandatory injunction to remove the lock put by the Defendants and restraining them from disturbing in the peaceful possession over Schedule-A and B properties.

3. In the said interim application, the present Petitioner-Defendant filed an objection stating therein that the shop room in question belongs to her father and as she married to a person belonging to different caste, her in-law's family did not allow her to stay in the joint family. Therefore, her father helped her and she along with her husband are staying in a rented house and managing the medicine',5hop for their family maintenarice and she is in possession of the said shop room after her husband's death. The Plaintiffs with an ill motive tried to dispossess the Defendants and created the concocted stories. As they are running the medicine shop for their livelihood from its income, no mandatory injunction should be granted and the plaintiffs had no prima facie case and balance of convenience was in tier favour and she would suffer irreparable loss if the injunction would be granted by the Court below.

4. The Court below on considering the plea of the parties held that the present Petitioner being the daughter of Gopinath, has a right over the house and property left by Gopinath and since Schedute-B property is a homestead land of Gopinath and Defendants 1 and 2 are staying over the said land, they cannot be injuncted from entering into the said property. The Court below passed the order of status quo in respect of Schedule-B property till final disposal of the suit and directed the Petitioner in form of ad interim mandatory injunction to remove the lock from the entrance wooden door of medicine store situated over Schedule-A property. It directed the Defendants not to disturb in the possession of the Plaintiffs over Schedule-A property. Being aggrieved by the said order, the Defendants filed FAO No. 31 of 2008 before the Learned District Judge, Puri challenging the order of the Learned Civil Judge on the ground that without giving a specific finding regarding the possession of t e parties or without enquiring the same, mandatory injunction should not be granted by the Trial Court. In support of their contention, they cited a decision of the Supreme Court in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and others. The Learned District Judge by Order Dated 23.5.2008 dismissed the appeal of the Petitioner confirming the order of the Trial Court.

5. The Learned Counsel for the Petitioner submitted that before granting the relief of ad interim mandatory injunction, the Court below should have enquired into the possession of the parties and without coming to a definite finding regarding the same on the date of filing of the suit, the ad inte