Grant or refusal of an ad interim injunction is a discretionary order that is rarely interfered with by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.

B. K. Singh, J.

1. The petitioner though this writ petition, challenged the judgment and order dated 27-5-1991 by which an ex parte order of injunction was granted and the judgment and order dated 2-7-1993 by which the Civil Judge (South) (Junior Div.), Lucknow, has, after hearing the parties, maintained the ad interim injunction and against the judgment and order dated 9-7-1996, passed by the X-Additional District Judge, Lucknow, Who after hearing the parties, has dismissed the petitioners' appeal and maintained the ad interim injunction order, granted by the Civil Judge (South) (Junior Div.) Lucknow.

2. I have heard learned counsel of the petitioners as well as the learned counsel of the opposite parties 1 and 2, who has put in appearance at the admission stage.

The learned counsel of the petitioner submitted that the Civil Judge (South) (Junior Div.), Lucknow, has committed material illegality in passing the ad interim injunction order and in maintaining the same by the impugned order dated 2-7-1993 because the provisions of Rule 3 of Order XXXIX CPC have not been followed. The second point of the learned counsel of the petitioner is that the opposite parties 1 and 2, plaintiffs in the trial court, have no legal right in the land in dispute and their status is that of trespassers. So the trial court could not have granted the ad interim injunction in favour of the trespassers. The last point urged by the learned counsel of the petitioners is that the trial court had no pecuniary jurisdiction to hear the suit and grant the ad interim injunction. As such also, the ad interim injunction has been granted without jurisdiction.

3. IN support of his contention, learned counsel of the petitioner has placed the reliance on the decision of a case reported in AIR 1995 All 418 Sri Dasnam Naga Sanyasi and another v. Allahabad Development Authority, Allahabad and another. The decision provides that in a suit for relief of perpetual prohibitory injunction disclosure of facts to satisfy the requirements of Section 38 of the Specific Relief Act and absence of prohibition contained in Section 41 thereof is required. IN such a suit, court has a discretion which is to be exercised judicially for grant of perpetual injunction as the language of Section 38 provides. This decision further provides that filing of a mere suit for perpetual injunction is a conduct of plaintiff. The High Court maintained the orders passed by the lower courts rejecting the application of temporary injunction because on the basis of facts available, the applicant's possession on property in dispute was doubtful. The High Court also doubted whether the writ jurisdiction could have been exercised in such a case.

4. LEARNED counsel of the petitioners then referred to a decision of a case reported in AIR 1986 Karnataka 77, K. V. Narayan v. S. Sharana Gowda and another. In this decision it has been held that a trespasser in possession, is not entitled to a temporary injunction as against the principal owner. The principle of acquiescence in favour of the trespasser in possession, has also been discussed in this decision.

Learned counsel of the petitioner then referred to a decision of a case reported in AIR 1996 Delhi 1, M/s. G. M. Modi Hospital and Research central Medical Science v. Sh. Shankar Singh Bhandari and others in this case, it was held that such labourers who had been permitted to live on the site where they were engaged as labourers for the purposes of construction, cannot file a suit for injunction. The labourers having no jural relationship with either lessees or licencees with hospital were not entitled to get the relief of injunction merely on the basis of possession.

5. LEARNED counsel appearing on be half of the opposite parities 1 and 2, submitted that both the courts have concurrently held that the opposite parties are in possession. They have therefore, granted the interim injunction on the basis of plaint allegation that the plaintiffs are o