1987 Supreme(MP) 592

IN THE HIGH COURT OF MADHYA PRADESH
K.L. Shrivastava, J.
Vijaysingh - Petitioner
Vs.
Smt. Ladkumar Jain - Respondent
M.A. No. 209 of 1983 (I)
Decided On : 05-01-1987

Headnote:(1) Civil Procedure Code, 1908 – O.39 R. 1 and 2 – conditions – for grant of temporary injunction not satisfied – injunction rightly refused.

       (2) Civil Procedure Code, 1908 – S.104 and O.43, R.1 – appeal under – interim injunction refused rightly – no interference called for in appeal.

        Short Note

       This miscellaneous appeal is directed against the order dated 20 – 8 – 83 passed by the 9th Additional Judge to the District Judge, Indore in C.S. No. 2/82 whereby the petitioner's application for grant of temporary injunction has been dismissed.

       2. Held: It is well – settled that a person who seeks temporary injunction must show that the three well known concurrent conditions necessary for its grant exist in his favour. He must satisfy the Court: –

       Firstly, that there is a serious question to be tried in the suit and that on the facts before the Court there is a probability of his being entitled to the relief asked for by him.

       Secondly, that the Court's interference is necessary to protect him from that species of injury which the Court calls irreparable before his legal right can be established on trial, and

       Thirdly, that the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it.

       3. The first of the above conditions is what is generally termed a "prima facie case." In other words, the prima facie existence of a right and its infringement are the first condition for the grant of temporary injunction. But the existence of a prima facie is not by itself sufficient. The applicant has to further satisfy the second condition by showing that irreparable injury will accrue to him if the injunction is not granted and that there is no other remedy open to him by which he can protect himself from the consequences of the apprehended injury. The term 'irreparable injury' however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, i.e., one that cannot be adequately compensated for in damages. The third condition is what is called the principle of the 'balance of convenience.' In applying this principle, the Court should weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If, on such a consideration the Court thinks that pending the determination of the suit, the subject – matter should be maintained in status quo, an injunction for that purpose should be issued. The person claiming the relief of temporary injunction must also show a clear necessity for affording immediate protection to his alleged right or interest which would otherwise be seriously injured or impaired. In this connection, the decision in Smita Agarwal's case (AIR 1978 Patna 112) is pertinent.

       4. It may be stated that even where all the three well – known conditions for the grant of temporary injunctions are satisfied, the relief may nevertheless be refused for other reasons. Delay on the part of the person claiming the relief is one of such reasons. The law has left the question of grant or refusal of this equitable relief of temporary injunction in the domain of Court's judicial discretion so that even where the requisite conditions for Its grant are satisfied, the Court is still free to decide one way or the other and mould its order to suit the justice of the particular case in the context of the entirety of its facts and circumstances. It has to be borne it mind that this equitable relief of temporary injunction is a serious matter and has to be granted only where it is essential to do so in the interest of justice and the party claiming it has come to the Court with clean bands. (vide Shajuddin's case – 1985 JLJ 486).

       5. On a careful consideration of the totality of the facts and circumstances of the present case and in view of the fact that there is no clear necessity for affording immediate protection to the petitioner as it is still open to him to agitate the question of his title before the Addl. Tahsildar, I am of the view that it cannot be said that the learned lower Court erred in exercise of its discretionary jurisdiction in refusing the relief of temporary injunction to the petitioner. It cannot be said that the learned trial Court exercised its discretionary jurisdiction improperly or erroneously so as to call for interference in appeal. In this view, I find that no case for interference in appeal is made out. In this connection, the decision in Narsingh Patidar's case (1983 M.P.W.N. 317) is pertinent. AIR 1978 Pat. 112 and 1983 MPWN 317 relied on. Appeal dismissed.