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2013 Supreme(All) 2821
ALLAHABAD HIGH COURT
Rajiv Sharma , Satish Chandra, JJ.
Gulab Vaswani and another -Appellant
Versus
State of U.P. and others -Respondent
First Appeal From Order No. 443 of 2013
Decided On : 16-12-2013
The main legal point established in the judgment is the criteria for granting temporary or interim injunction, including the need to prove a prima facie case, balance of convenience, and irreparable injury, while also considering the inherent jurisdiction of the court to issue temporary injunction in circumstances not covered by specific provisions.
Headnote:
CPC - Temporary Injunction - Order XXXIX Rule 1 and 2 - 41 of the Specific Relief Act - [Summary of Acts and Sections discussed: Order XXXIX Rule 1 and 2 of CPC, Section 151 CPC, Section 41 of the Specific Relief Act] - The court discussed the provisions of Order XXXIX Rule 1 and 2 of CPC and the circumstances under which the Courts can exercise power and grant temporary or ad interim injunction or reject the same. It highlighted the legal principles and conditions for the grant of temporary or interim injunction, including prima facie case, balance of convenience, and irreparable injury. The court also emphasized the importance of protecting the rights of parties pending litigation and preventing future injury, while considering the inherent jurisdiction of the court to issue temporary injunction in circumstances not covered by the provisions of Order XXXIX of the Code of Civil Procedure.
Fact of the Case:
The plaintiffs filed a regular suit for perpetual injunction, claiming ownership of the disputed property and seeking to restrain the defendants from interfering with their possession. The trial Court rejected the application for temporary injunction, leading to the instant appeal.
Finding of the Court:
The Court found that the plaintiffs failed to establish a prima facie case for obtaining the relief of interim injunction as they could not identify the disputed property in accordance with the provisions under Order VII Rule 3 of CPC. The trial Court's rejection of the prayer for temporary injunction was deemed appropriate after considering the materials on record.
Issues: The main issue revolved around the plaintiffs' failure to establish the situation and position of the disputed property, leading to the rejection of their application for temporary injunction.
Ratio Decidendi: The Court emphasized the legal principles and conditions for the grant of temporary or interim injunction, including prima facie case, balance of convenience, and irreparable injury. It highlighted the importance of protecting the rights of parties pending litigation and preventing future injury, while considering the inherent jurisdiction of the court to issue temporary injunction in circumstances not covered by the provisions of Order XXXIX of the Code of Civil Procedure.
Final Decision: The appeal lacked merit and was dismissed, with the hope that the trial Court would expeditiously decide the regular suit in accordance with the law.
Heard Mohd. Arif Khan, Senior Advocate, assisted by Mohd. Aslam Khan, learned Counsel for the appellants, Sri Prashant Chandra, Senior Advocate, assisted by Sri Lokendra Kumar Gupta, learned Counsel for the respondent No.6, Sri Shalabh Singh, learned Counsel for the proforma respondent No.8 and Sri Santosh Shukla, learned Counsel for the proforma respondent No.9.
2. Through the instant First Appeal From Order under Order 43 Rule 1(r) of the Code of Civil Procedure [hereinafter referred to as the "CPC"], the plaintiffs/appellants have assailed the judgment and order dated 8.3.2013 passed by the Civil Judge (Senior Division), Malihabad, Lucknow, in Regular Suit No.96 of 2013 :Gulab Vaswani and another Vs. State of U.P. and others, whereby the application preferred by the plaintiffs/appellants under Order XXIX Rules 1 and 2 of the CPC (6Ga) has been rejected.
3. Shorn off unnecessary details the facts of the case are as under :
The plaintiffs/appellants have filed a regular suit for perpetual injunction, which was registered as Regular Suit No. 96 of 2003 before the Court of Civil Judge (Senior Division), Lucknow. In the plaint, the stand taken by the plaintiff is to the effect that they are the owner of the property indicated in site map annexed to the plaint marked as ABCDEFGHIJKLMNOPQ RSTUV, pertaining to the gata no.2225, 2226/7, 2219/12/2 and in this regard, they are placed reliance on the report of Kanoongo in respect to the property in dispute on the spot. It is also pleaded by the plaintiff that Gata No. 2219/12/11 was owned and possessed by one Ram Dayal and his brother Shiv Narayan after the death of Ram Dayal he was succeeded the representatives defendant no. 2 (daughter), Shri Shiv Narayan after his death was succeeded by defendant no. 3 and 4 and defendant no. 2 son died living behind Defendant No. 5 and 6.
4. Cause of action which has been indicated by the plaintiffs in respect of filing of the suit as well as moving of application under Order XXXIX Rules 1 and 2 C.P.C. read with Section 151 C.P.C. (marked as paper No. Ga-6) is that they have entered into agreement to sale with same person, with respect to the property situated at Gata No.2219/12/11 and the boundaries have been wrongly shown in the agreement and includes the part of the plaintiff's properties and the defendant nos. 3 to 6 are going to sale the shares of plaintiff in Gata Nos.2225, 2226/7 2219/12/2. Thus, prayer has been made by the plaintiffs in the application under Order XXXIX Rule 1 and 2 read with Section 151 C.P.C. that the defendants may be restrained from raising any construction and interfering in the peaceful possession of the plaintiff in respect to land in dispute.
5. Defendant No. 6-Sri Pankaj Verma filed an objection to the interim injunction application as prayed by the plaintiffs that the detailed of the property is required under Order VII Rule 3 C.P.C. is not pleaded. Further defence has been taken that the total Area of 2219 is 4.739 hectares, out of which, plaintiffs have 3.924 Hectares, whereas the areas are shown as ABCDEFGHIJKLMNOP QRSTUV is about 4.8792 Hectares, which is more than 0.142 Hectares as pleaded in para 34 of the counter Affidavit.
6. The trial Court, after hearing the parties and perusing the records, vide impugned order dated 7.3.2013, rejected the said application for temporary injunction (Ga6).
7. Hence the instant appeal.
8. While assailing the impugned order dated 7.3.2013, Mohd. Arif Khan, Senior Advocate, appearing on behalf of the appellants has submitted that the Court below, despite recording a specific finding based on the appreciation of the evidence on record that the appellants are in possession over the land in dispute, has erred in refusing to grant injunction. He further submits that the Court below has also failed to consider the fact that necessary ingredient for granting temporary injunction under Order XXXIX Rules 1 and 2 CPC exists in favour of the plain
