Kishore Agarwal vs Ram Prakash - 1991 Supreme(MP) 653

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : A.K. Shrivastava
For the Respondent: N.D. Singhal

Headnote:(1) Civil Procedure Code, 1908 – – O. 39, R. 1 and 2 – – temporary injunction – – usually prima facie case is adjudged on affidavits – – affidavits of both the parties should be discussed.
       (2) Civil Procedure Code, 1908 – – O. 39, R. 1 and 2 – – temporary injunction as to electric connection n trespasser is not entitled at the cost of real owner.
       (3) Civil Procedure Code, 1908 – – O. 39, R. 1 and 2 – – order of temporary injunction – – it is mandatory to decide which of the parties would suffer injury.
        Short Note
       1. Shri Shrivastava has submitted that the plaintiffs were very close relations of the defendant – appellant and that they committed breach of trust and their possession was not lawful. That fact the trial Court has ignored and no notice of that has been taken in the impugned order. That is his grievance.
       2. On the other hand, it is submitted by Shri Singhal that the finding of one year's possession is erroneous because many affidavits the plaintiff had filed to support the case which he had set up. If that be so, it was expected that those affidavits should have been duly and properly and indeed affidavits of the defendant – appellant, if filed, should also have been considered in juxtaposition. Unfortunately, no attention is at all paid and no discussion at all find in the order impugned of affidavits of any of the parties. Needless to reiterate the trite law that in temporary injunction matter on affidavits. usually prima facie case of parties is adjudged. But, that is not done in the instant case.
       3. In the circumstances aforesaid, the order passed by the trial Court is apparently not sustainable as the order is a perfunctory order, which does not deal with the material on record and the finding recorded is without any reference to the materials which the Court has before it. True, electric connection was claimed but a trespasser cannot have that at the cost of the real owner. That will add insult to the injury while order 39, rules 1 and 2 CPC, arc meant for preventing injury during the course of trial. It is unfortunate that the trial Court could not understand the meaning of the word 'injury' which occurs in the statutory provision on the basis of which indeed jurisdiction could not be exercised by the trial Court. It was necessary for it to find which of the party would suffer 'injury', if the injunction was riot granted. That finding is lacking in the instant case.
       4. For the aforesaid reasons, the impugned order is set aside. The trial Court shall give re – hearing to parties and take into consideration all the material available before it and pass fresh order on the application for temporary injunction. Appeal allowed.