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Allahbad High Court
T.S.MISRA,PREMPRAKASH
The Allahabad Bank Ltd. - Appellant
Versus
Rana Sheo Amber Singh - Respondent
Decided On : 03/11/1976
The court held that an application under Section 4 of the Zamindars' Debt Reduction Act, 1953, would not be governed by Article 137 of the Limitation Act. The court also held that the provisions of Order 38, Rule 5 of the Code of Civil Procedure were not complied with at all. The court further held that the mere fact that there are certain provisions as regards the issue of injunction in Order 39, C.P.C. does not debar the court from passing orders of temporary injunction for doing justice in the exercise of its inherent power under Section 151 of the Code, though the discretion has to be exercised with extreme caution and applied only in very clear cases.
Fact of the Case:
The Bank made application under Order 38, Rule 5 of the Code of Civil Procedure for attachment of ¼th compensation of 90 villages (not mortgaged with the Bank) under attachment in execution of the decree of Babu Vaidya Nath Singh against the judgment-debtors; another application for attachment of full compensation of 33 villages not mortgaged with the Bank was made on 17th December, 1955. Rai Bahadur Sheo Pratap Singh died on 22nd January, 1956 and his heirs were substituted in Misc. Case No. 31 of 1956. The Bank applied on 2nd April, 1957 for attachment of the Kothi of Rai Bahadur Sheo Pratap Singh as also for attachment of the kothi belonging to Rana Sheo Ambar Singh in the occupation of the District Judge, Rae Bareli. In the alternative invoking the aid of Section 151 C. P. C., interim injunction was also sought to restrain the judgment-debtors from disposing of or withdrawing the same.
Finding of the Court:
The court held that an application under Section 4 of the Zamindars' Debt Reduction Act, 1953, would not be governed by Article 137 of the Limitation Act. The court also held that the provisions of Order 38, Rule 5 of the Code of Civil Procedure were not complied with at all. The court further held that the mere fact that there are certain provisions as regards the issue of injunction in Order 39, C.P.C. does not debar the court from passing orders of temporary injunction for doing justice in the exercise of its inherent power under Section 151 of the Code, though the discretion has to be exercised with extreme caution and applied only in very clear cases.
Issues: Whether an application under Section 4 of the Zamindars' Debt Reduction Act, 1953, would be governed by Article 137 of the Limitation Act. Whether the provisions of Order 38, Rule 5 of the Code of Civil Procedure were complied with. Whether the court can pass orders of temporary injunction for doing justice in the exercise of its inherent power under Section 151 of the Code, though the discretion has to be exercised with extreme caution and applied only in very clear cases.
Ratio Decidendi: The court held that an application under Section 4 of the Zamindars' Debt Reduction Act, 1953, would not be governed by Article 137 of the Limitation Act. The court also held that the provisions of Order 38, Rule 5 of the Code of Civil Procedure were not complied with at all. The court further held that the mere fact that there are certain provisions as regards the issue of injunction in Order 39, C.P.C. does not debar the court from passing orders of temporary injunction for doing justice in the exercise of its inherent power under Section 151 of the Code, though the discretion has to be exercised with extreme caution and applied only in very clear cases.
Final Decision: Revision No. 33 of 1969 is allowed and, setting aside the impugned order, we send back the case to the Civil Judge, Rae Bareli to proceed afresh under sub-section (3) of Section 4 of the Act, after affording opportunity of hearing to the parties, and determine the amount in the manner prescribed therein. In the circumstances, costs shall be borne by the parties. We further direct that until the liability determined under Order 34, Rule 6, C.P.C. is satisfied, the judgment-debtors shall not dispose of or cause to be disposed of in any manner or receive from the Compensation Officer the Compensation Bonds specified in the applications which have given rise to F. A. F. Os. Nos. 20 and 21 of 1964 (leaving Bonds which were released by the Court's order dated 2nd May, 1972) of a face value of Rs. 1,50,000. In the result, F. A. F. Os. Nos. 20 of 1964 and 21 of 1964 are allowed, but since no further relief is being granted to the decree-holder, the remaining F. A. F. Os. including the First Execution Decree Appeal No. 9 of 1964 are dismissed. In the circumstances, costs shall be borne by the parties.
T. S.MISRA, J.:- I have had the advantage of reading the judgment prepared by my learned brother Prem Prakash, I agree with the conclusions reached by him but I would like to add something on the question of interlocutory injunction.
2. The grant of an interlocutory injunction is a remedy which is both temporary and discretionary. When an application for interlocutory injunction is made upon contested facts the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex-hypothesi the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action. It is with a view to mitigate the risk of injunction to the plaintiff during the period before that uncertainty could be resolved that a practice has arisen to grant him relief by way of temporary injunction. The object seems to be to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensated. The Court must weigh one need against another and determine where the 'balance of convenience lies'.
3. It is however to be remembered that the purpose sought to be achieved by giving to the court discretion to grant interlocutory injunction would be frustrated if the discretion were clogged by a technical rule forbidding its exercise if the Court evaluated the chances of the plaintiff's ultimate success at the trial at 50 per cent or less but permitting its exercise if his chances were of more than 50%. No such mathematical formula can be evolved for this purpose. The discretion has to be exercised not arbitrarily and capriciously but judiciously and fairly on reasonable grounds depending upon the facts and circumstances of the case and the evidence available to the Court at the hearing of the application. The plaintiff should show 'a probability that he is entitled to relief' (Preston v. Luck, (1884) 27 Ch D 497) or, to put it differently 'strong prima facie case that the right which he seeks to protect in fact exists' (Smith v. Grigg Ltd., (1924) 1 KB 655). A less onerous criterion was indicated in Junes v. Pacaya Rubber and Produce Co. Ltd., (1911) 1 KB 455 requiring the plaintiff to show that there is 'certainly a case to be tried'. In my view, the court must be satisfied before granting interlocutory injunction that the claim is not frivolous or vexatious but is well founded. The applicant must show that there is a serious question to be tried and there are fair chances of its being decided in his favour. Of course, at this stage of the litigation the court need not adjudicate upon the facts on which the claims of either party may ultimately depend nor decide difficult questions of law which need detailed arguments and mature consideration because they are matters to be dealt with at the trial. The court has to abstain at this stage of the case from expressing any opinion upon the merits of the case because that can be done only after the final hearing.
4. If in a suit for permanent injunction the court finds that the material available at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding at the final trial, it should proceed to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief.
5. In this connetcion the court should consider whether, if the plaintiff were to succeed at the trial in establishing his right to permanent injunction, he would be adequately compensated by an award of damages. If the damages would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunc
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