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2019 Supreme(All) 1486
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SUNITA AGARWAL, J.
Moradabad Development Authority - Appellant
Versus
Shri Sai Sidhi Developers - Respondent
Matters Under Article 227 No. 9355 of 2018
Decided On : 25-02-2019
For the Appellant : Satish Chaturvedi
For the Respondent: Ram Milan Mishra
The main legal point established in the judgment is the requirement to consider prima facie case, balance of convenience, and irreparable loss or injury while granting temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
Headnote:
Injunction - Temporary Injunction - Order 39 Rule 1, Order 39 Rule 2 - The court discussed the provisions of Order 39 Rules 1 and 2 of the Code of Civil Procedure, emphasizing the principles of granting temporary injunction and the requirement to consider prima facie case, balance of convenience, and irreparable loss or injury. The court highlighted the need for reasons to be recorded while granting or rejecting injunction and clarified that only making out a prima facie case is not enough; it must also be shown that the injury suffered by the plaintiff in case of refusal of temporary injunction would be irreparable.
Fact of the Case:
The petition was directed against an order granting interim protection to the plaintiff, pending disposal of a temporary injunction application. The trial court had observed that the interim injunction was needed pending the decision on the temporary injunction application and had granted protection to the plaintiff.
Finding of the Court:
The court found that the order granting interim protection did not come within the meaning of a temporary injunction order under Order 39 Rules 1 and 2 CPC. It directed the trial court to decide the temporary injunction application without granting any adjournment to the parties.
Issues: The issues revolved around the interpretation of the provisions of Order 39 Rules 1 and 2 of the Code of Civil Procedure and the requirement for granting temporary injunction, as well as the pace of the trial court in deciding the temporary injunction application.
Ratio Decidendi: The court emphasized the principles of granting temporary injunction under Order 39 Rules 1 and 2, highlighting the need for reasons to be recorded while granting or rejecting injunction and the requirement to consider prima facie case, balance of convenience, and irreparable loss or injury.
Final Decision: The petition was disposed of with directions to the trial court to decide the temporary injunction application without granting any adjournment to the parties.
Based on the legal document provided, here are the key points regarding the case Moradabad Development Authority - Appellant vs. Shri Sai Sidhi Developers - Respondent:
- Subject Matter: The case deals with Civil Law, specifically regarding Injunctions, Temporary Injunctions, and the interpretation of Order 39 Rules 1 and 2 of the Code of Civil Procedure (CPC) alongside inherent powers under Section 151 CPC. (!) (!) (!)
- Core Legal Principle: To grant a temporary injunction under Order 39 Rules 1 and 2 CPC, the court must consider three specific ingredients: (a) a prima facie case, (b) balance of convenience, and (c) irreparable loss or injury. (!) (!) (!)
- Mandatory Recording of Reasons: It is settled law that while granting or rejecting an injunction, the court is mandatory required to record reasons for its decision. (!) (!)
- Appealability of Interim Orders: Not every interim order passed during the pendency of a temporary injunction application falls under Order 39 Rule 1. An order granting "interim protection" solely because a report is pending, without applying the three-pronged test for injunctions, does not qualify as a temporary injunction order under Order 39 Rule 1 and thus is not appealable under Order 43 Rule 1(r). (!) (!) (!) (!) (!)
- Facts of the Case: The trial court had granted an
ORDER :
Sunita Agarwal, J.
1. With the consent of learned counsel for the parties, the present petition is being decided finally at the admission stage, itself. No counter and rejoinder affidavits are required as admitted by them.
2. Heard learned counsel for the parties and perused the record.
3. The present petition is directed against an order dated 28.8.2018 whereby the trial court has granted an interim order in favour of the plaintiff, pending disposal of application 6Ga, with the observation that for decision on 6Ga application (temporary injunction matter), spot-inspection report of the site in question is needed. Thus, while issuing direction to the plaintiff to take steps (do pairvi) for getting an Amin report, interim protection has been granted restraining the defendants from interfering or doing any illegal activities in relation to the suit property, which would run contrary to the interest of the plaintiff.
4. It has also been observed by the trial court that in case of any delay on the part of the defendants in complying with the directions of the trial court i.e. in doing pairvi or disposal of temporary injunction application, it would be open for it to reconsider the interim injunction granted in favour of the plaintiff. Further, 20.9.2018 was the date fixed for disposal of the temporary injunction application and filing of the written statement.
5. It is informed by the learned counsel for the parties that the Amin report has been filed in the trial court on 1.9.2018. None of the counsels for the parties are in a position to inform the Court as to whether the plaintiff or defendants had filed any objection to the Amin report.
6. Further, from a perusal of the order sheet, it transpires that on 4.9.2018, an application 33Ga with the affidavit 34Ga was filed by the plaintiff and the trial court has proceeded to decide the same on 4.9.2018, itself.
7. By means of the said application, the plaintiff had pleaded that the defendants were not complying with the interim injunction order dated 28.8.2018 and were trying to interfere illegally in the business being run by the plaintiff. On 3.9.2018, the defendants had refused to obey the interim injunction order. It has not been disclosed in the said application as to what actually was the action of the defendants which amounted to non-compliance or violation of the interim injunction order granted on 28.8.2018.
8. Be that as it may, the trial court has proceeded to allow application 33Ga invoking the powers under Section 151 CPC and directed the administrative authorities namely the District Magistrate and the Senior Superintendent of Police, Moradabad, to ensure that the interim injunction order dated 28.8.2018 is complied with.
9. It further transpires from the record that on 20.9.2018, the trial court has granted time to both the parties to file their objections on Amin report paper no. 35Ga.
10. It is informed by the learned counsel for the petitioner/defendant that a written statement/objection to the temporary injunction application 6Ga has been filed on 20.9.2018. The order sheet dated 10.10.2018, 6.11.2018 and 14.12.2018 indicate that the matter could not be heard on account of leave of the Presiding Officer.
11. Order sheet after 14.12.2018 is not on record. None of the counsels for the parties are in a position to intimate as to why application 6Ga/temporary injunction application could not be decided for a period of more than five months. As per the information given by them, today i.e. 25.2.2019 is the date fixed for disposal of the temporary injunction application.
12. Before coming to the merits of the case in the light of the above facts, it would be appropriate to deal with the preliminary objections raised by the learned counsel for the respondent/plaintiff.
13. Learned Advocate for the plaintiff placing reliance upon the judgment of the Division Bench of this Court in Cosmopolitan Club Vs. M/s. Vinayak Kripa Inframart Company (P) Ltd. reported in 2010 (5) ADJ 731
