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1985 Supreme(Ori) 374
IN THE HIGH COURT OF ORISSA
S.C. Mohapatra, J.
THE EXECUTIVE OFFICER, NOTIFIED AREA COUNCIL - APPELLANT
Versus
KINTALI NATABAR PRUSTI AND OTHERS - RESPONDENT
Miscellaneous Appeal No. 261/84
Decided On : 07-08-1985
R.K. Rath and B.K. Nayak, for the Appellant; Addl. Standing Counsel (for respondents 4 and 5) and Saktidhar Das and K.N. Sinha (For respondents 1 to 3), for the Respondent
The power to grant temporary injunction is discretionary and should be exercised judiciously based on a prima facie case, irreparable injury, and balance of convenience. The purpose of granting temporary relief is to prevent the ends of justice being defeated.
Headnote:
temporary injunction - Specific Relief Act, 1963 (Section 36) - Code of Civil Procedure (Section 37(1), Section 94(c), Order 39, Rules 1 and 2, Section 151) - The court analyzed the provisions of the Specific Relief Act, 1963 and the Code of Civil Procedure relating to the grant of temporary injunction. It discussed the discretionary nature of temporary injunction, the application of the Code of Civil Procedure, and the inherent power of the court under Section 151. It also referred to the relevant rules and sections that regulate the grant of temporary injunction.
Fact of the Case:
Defendant No. 3 appealed against an order granting temporary injunction in a suit for confirmation of possession and permanent injunction. The suit related to a tank and its embankments. The plaintiffs claimed to be in peaceful possession since 1938 and sought temporary injunction as the tank was transferred to different entities and eviction proceedings were initiated against them. The trial court granted the injunction based on the finding of possession.
Finding of the Court:
The court analyzed the provisions of the Specific Relief Act, 1963 and the Code of Civil Procedure relating to the grant of temporary injunction. It held that temporary injunction is not a common law right and is granted at the discretion of the court. The court also discussed the inherent power of the court to grant temporary relief under Section 151 of the Code of Civil Procedure. It referred to previous decisions that followed the principle of granting temporary injunction based on a prima facie case, irreparable injury, and balance of convenience. The court emphasized that the power to grant temporary injunction is discretionary and should be exercised judiciously. It also discussed the equitable nature of the relief and the application of maxims of equity. The court further referred to precedents that recognized the availability of injunction to a person in possession and the importance of notice in certain cases.
Ratio Decidendi: The court held that the parties and the trial court did not proceed with the correct legal position. The purpose of granting temporary relief is to prevent the ends of justice being defeated. Therefore, the court set aside the order of injunction and remitted the matter back to the trial court for a fresh hearing, giving the parties an opportunity to prove their case.
Result: The appeal was allowed and the order of injunction was set aside. The matter was remitted back to the trial court for a fresh hearing.
JUDGMENT :
S.C. Mohapatra, J. - Defendant No. 3 is the appellant. The appeal arises out of an order granting temporary injunction in a suit for confirmation of possession and permanent injunction. The suit relates to a tank and its embankments locally known as 'Kendu Gadia' measuring 1 acre 41 cents.
2. Claiming to be in peaceful possession since 1938, plaintiffs prayed for temporary injunction as the State of Orissa (defendant No. 1) transferred the tank to Polosora Grama Panchayat and subsequently it has been transferred to the Kodala Notified Area Council and in view of the fact that a proceeding has been initialed against the plaintiffs under the Prevention of Land Encroachment Legislation in the State for their eviction.
3. The defendants have resisted the prayer for injunction Their case is that the tank was transferred to Polosora Grama Panchayat and thereafter to Kodala Notified Area Council.
4. A bare reading of the petition for injunction, the objection thereto and the documents filed lead to the only conclusion that the parties adverted to the question of possession of the tank. The trial Court also granted the injunction prayed for on the finding of possession only.
5. Temporary injunction during pendency of a suit is not a common law-right See Radhamohan Sundara Mohapatra Vs. Sura Dei and Another. Section 36 of the Specific Relief Act, 1963 only provides that the preventive relief of temporary injunction is granted by the Court at its discretion. Section 37(1) of the said Act explains that grant of temporary injunction by the Court is regulated under the Code of Civil Procedure. Section 94(c), C. P. C, provides that to prevent the ends of justice being defeated, Courts can giant temporary injunction in a suit as prescribed in the Code. Order 39, Rules 1 and 2, C. P. C., which prescribes for grant of temporary injunction, being not exhaustive and as has been held in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, the inherent power of the Court u/s 151, C. P. C., can be invoked to grant the preventive temporary relief. In the decisions reported in [I. L. R. 1966 Cutt. 400 (C. Dharamarajan v. Governing Body of Karanjia College and Anr. ). 38 (1972) C. L. T. 217 ( Krushna Chandra Mohapatra v. Chakrakote Savannah Hanta ) and 41 (1975) C. L. T. 882 ( R. S. Patal v. B. K Gupta and others) the principle had been followed and the question was examined on the facts and circumstances of those cases.
6. The main object behind the power to grant the preventive temporary relief of injunction is to prevent the ends of justice being defeated. It is granted at the discretion of the Court. This Court has confirmed the clear language of the provisions of Section 36 of the Specific Relief Act, 1963, Section 94(c) and Order 39, Rules 1 and 2, C. P. C., in laying down the principle that the power to grant temporary injunction is discretionary. {See I. L. R. 1958 Cutt. 63 (Bhaskar Chandra Sahu and Anr v. Hannu Sahu and Anr.) 1971 (2) C. W. R. 548 (Narayan Prusty v. State and Ors.) 38(1972) C. L. T. 1233 ( Nayan Kumari Dei v. Bhagabat Sahu and Ors. ) and 1973(2) C. W. R. 1471 (Dullabha Naik and Ors. v. Govind Swain and Ors.). The relief of temporary injunction is an equitable remedy as has been held by this Court in the decision reported in 1971 (2) C. W. R. 548 (supra). Thus, all the maxims of equity are attracted for considering the question of granting the interim relief.
7. Courts are to exercise the discretion to grant the temporary relief of injunction judicially as has been held in ILR 1958 Cutt. 63 (supra) and not arbitrarily. Sue 38 (1972) C. L. T. 1233 (supra) and 1973 (1) C. W. R. 1471 (supra). For the purpose of sound exercise of judicial discretion three conditions are to be satisfied in favour of the party seeking the temporary relief. They are : (i) prima facie case, (ii) irreparable injury in case the temporary relief is refused, and (iii) balance of convenience. This principle has been accepted in the decisions of th
