The central legal point established in the judgment is the importance of establishing a prima facie case, balance of convenience, and irreparable injury for the grant of temporary or interim injunction under Order XXXIX Rule 1 and 2 CPC.

Anil Kumar,J.: -

Heard Sri Gur Deo Saran, learned counsel for petitioner, Sri Gurfan Hasan, Advocate holding brief of Sri Manish Kumar, learned counsel for respondent and perused the record.

2. Initially, the petitioner field a suit for permanent injunction, registered as Civil Suit No. 368 of 2013 (Ram Surat Vs. Ram Sunder and others) in the court of Civil Judge (J Div.), Gonda in which an application for grant of temporary injunction has been moved and after hearing the plaintiff and defendant by means of order dated 24.07.2013, the trial court rejected the petitioner's application for grant of temporary injunction. Aggrieved by the said fact, the petitioner filed an appeal before the appellate authority, registered as Civil Appeal No. 66 of 2013 (Ram Surat Vs. Ram Sunder and others), dismissed by order dated 08.11.2013. The said order is under challenge in the present writ petition.

3. Learned counsel for petitioner while challenging the impugned order submits that the court below has wrongly appreciated the case and did not consider the fact that balance of convenience exists in favour of the petitioner for of temporary injunction and further the lower court did not consider the fact that the PWD road has been made in the chak of the petitioner bearing land Gata No. 2048, hence the order passed by the appellate court is illegal and arbitrary in the facts and circumstances of the present case.

4. I have heard learned counsel for petitioner and perused the record.

5. From the perusal of the judgement passed by court below, the position which exists in the present case is that the court below has after taking into consideration facts and circumstances of the case which came to the categorical finding that the petitioner is not able to prove his case in respect to Gata No. 2048 hence taking into said fats as well as the commission report in the present matter, the court below has not granted the temporary injunction as prayed by the plaintiff-petitioner.

6 In order to decide the controversy involve in the present case, I feel appropriate to go through the provisions for grant of temporary injunction as provided under Order XXXIX Rule 1 and 2 CPC under which the Courts can exercise power and grant temporary or ad-interim injunction.

7. Rule 1 of Order XXXIX lays down three circumstances where the Court may grant temporary or interim injunction if the circumstances and facts are proved by affidavit or otherwise. Firstly, where the disputed property is in danger of being wasted, damaged or alienated by any party to the suit or from being fully sold in the execution of a decree; secondly where the defendant threatens or intends to remove or dispose of his property with an intention to defraud his creditor; and thirdly where the defendant threatens to dispossess the plaintiff in relation to the disputed property. On proof of these on affidavits, the Court may pass an order restraining or forbearing the defendant from doing such act of wasting, damaging, alienating , sale, removal or dispossession of the property or restrain the defendant from dispossession the plaintiff from the suit property or causing injury to the plaintiff in relation to the disputed property.

8. Similarly, under Rule 2 of Order XXXIX, the Court may, by an order of temporary or interim injunction, restrain the defendant from committing breach of contract or injury complained of arising out of the same contract. However, while exercising the power under Rule 2, the Court must bear in mind that in case where the performance of a contract is not specifically enforced, damages for such breach would be the proper and adequate relief. Then in such cases injunction may not be granted. The Courts must also bear in mind the provisions of Section 41, particularly clause (e) of the Specific Relief Act, while exercising the power under Rule 2 of the Order XXXIX of the Code. According to this Section, the perpetual injunction could not be granted to restrain the brea