Matter is taken in revised cause list.
Sri Sudeep Seth, learned counsel for the respondents is not present .
Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Mohd Adil Khan, learned counsel for the petitioner.
The facts, in brief, as stated by the learned counsel for the petitioner are to the effect that on 15.9.1930 Sri 1008 Swami Param Hans Ji Maharaj established the Param Hans Ashram and also established a Sanskrit Maha Vidyalaya in the prinset of the Ashram known as Shrimad Param Hans Sanskrit Mahavidyalaya Teekar Mafi, Tehsil Amethi, District Sultanpur. On 11.2.1995 Swami Shantanand Ji Maharaj executed a Will, in favour of the petitioner declaring him to be his successor, after his death, he is managing the Ashram as Peethadheeswar as well as Manager of the institution.
He further submits that since the properties of the Ashram are spread over throughout India at various places and for looking after the same, the petitioner used to visit those places, hence he appointed opposite party no.2 as a Pujari to look after the temple and to perform Bhog, Aarti, Puja etc. Learned counsel for the petitioner also submitted that the opposite party no.2 became dishonest and on the basis of the false and fake assertions and by playing fraud he filed a Regular Suit No. 137 of 1996 (Swami Dineshananda Ji Maharaj Vs. State Bank of India) without impleading the petitioner therein and got an ex-parte judgment in his favour on 24.7.2009, as the petitioner was not a party in the said suit so the said judgment is not binding on him. Moreover in the garb of the judgment dated 24.7.2009 passed in Regular Suit no. 137 of 1996, the opposite party no.2 claiming himself to be the Manager intends to withdraw the amount deposited in Bank for which he has no legal right, so the petitioner filed a suit for permanent injunction registered as Regular Suit no. 339 of 2010 (Swami Sri Hari Chaitanya Vs. Dineshanand and others) before the Civil Judge (Junior Division) Court no. 15, Sultanpur and in the said suit an application for temporary injunction under Order 39 Rule 1 & 2 of C.P.C. was moved for grant of ad interim injunction for restraining the opposite party no. 2 not to withdraw the amount which is lying deposit in the bank and further from making any interference in peaceful management of the institution and educational work etc. By means of the impugned order dated 9.9.2010 (Annexure no.3), the opposite party no.1 has issued notice for disposal of the application for temporary injunction ( 5GA2) and fixed 30.9.2010, hence the present writ petition.
Sri Mohd. Arif Khan, learned counsel for the petitioner assailed the said order on the ground that it is well settled proposition of law that absolute refusal for grant of injunction on the part of court below is a fallibility and the court below looking into the facts and circumstances of the case should have granted interim injunction in favour of the petitioner thereby maintaining the status quo. However, the opposite party no.1 failed to consider the well settled proposition of law in this regard and declined to pass ex parte order for injunction. The said action on the part of the opposite party no.1 is illegal, without jurisdiction and is liable to be set aside and injunction is prayed to be granted in favour of the petitioners. In this regard Sri Mohd Arif Khan, learned counsel for the petitioner relied on the averments as made in para nos. 11 and 12 of the writ petition and also on the following judgments:-
(1) Rahmullah and others Vs. The District Judge, Siddharath Nagar and others. 1999(90) Revenue Decision 1.
(2) Kendriya Karmchari Sahkari Grih Nirman Samiti Ltd. Vs. New Okhla Industrial Development Authority ,2009 (27) LCD 185.
I have heard the learned counsel for the parties and gone through the record.
So far as the facts of the present case are concerned, it is not disputed that the petitioner has filed a suit for permanent injunction registered as Regular Suit No. 339 of 2010 (Swami Hari Chaitanya Bramhchari Vs. Dineshanand and others) in the court of Civil Judge (Junior Division), Court no. 15, Sultanpur and he moved an application for temporary injunction and on 9.9.2010 (Annexure no.3) in which the opposite party no.1 has passed the impugned order.
From the perusal of the impugned order, it is clear that after going through the documents submitted by the petitioner in support of grant of temporary injunction, the trial court had observed that after taking into consideration the evidence and circumstances of the case, no good ground exits to grant ex-parte injunction in favour of the plaintiff without giving opportunity of hearing to the defendant, accordingly for disposal of the application for temporary injunction (5GA 2) notices are issued to the respondents fixing 30.9.2010.
In view of the above said factual background the question which immediately arises is that what principles should be followed by the Courts in the matter of grant of ad interim injunction. The answer is contained in the decision of the Hon'ble Apex Court in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi, (1993) 3SCC 161, a Bench of three Judges of Apex Court has held that:-
" It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course, grant of injunction is within the discretion of the court and such discretion is not to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injection is, thus, to maintain the status quo. The Court grants such relief according to the legal principles- ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and that the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him".
In the case of Dalpat Kumar V. Prahlad Singh (1992) 1 SCC 719 a Bench of two Judge of the Apex Court held that the phrases "Prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused.
In Woodroffe's Law Relating to Injunctions, 2nd revised and enlarged Edn., 1992, at page 56 in para 30.01, it is stated that-
"an injunction will only be granted to prevent the breach of an obligation (that is a duty enforceable by law ) existing in favour of the applicant who must have personal interest in the matter. In the first place, therefore, an interference by injunction is founded on the existence of a legal right, an applicant must be able to show a fair prima facie case in support of the title which he asserts."
In The Law Quarterly Review Vol. 109, page 432 ( at p. 446), A.A.S. Zuckerman under the title "Mareva Injunctions and Security for Judgment in a Framework of Interlocutory Remedies" has stated:- :-
"The Court considering an application for an interlocutory injunction has four factors to consider; first, whether the plaintiff would suffer irreparable harm if the injunction is denied; secondly, whether this harm outweighs any irreparable harm that the defendant would suffer from an injunction; thirdly, the parties' relative prospects of success on the merits; fourthly, any public interest involved in the decision. The central objective of interlocutory injunctions should therefore be seen as reducing the risk that rights will be irreparably harmed during the inevitable delay of litigation."
In the case of Rahmullah and others ( Supra) cited by the learned counsel for the petitioner this Court has held that before an injunction is granted, the question in dispute need not be examined or its decision anticipated. The real point is, not how these questions ought to be decided at the time of hearing of the case, but whether the nature and difficulty of the question is such that injunction should be granted until the time for deciding them should arrive. To make out a prima facie case for injunction it is not required that the plaintiff should establish his title but it is enough if he can show that he has a fair question to raise as to the existence of the right alleged and the property in the meantime be preserved in status quo.
Further in the case of Kendriya Karmchari Sahkari Grih Nirman Samiti Ltd. (Supra) cited by the learned counsel for the petitioner, an application for temporary injunction was moved by the plaintiff, objections were filed by the respondents/defendants, appellant filed his rebuttal, thereafter the application for temporary injunction was rejected by the trial court in view of above said back ground and in para-9 of the said case it was held as under:-
"Even if is so, when the question of immovable property is involved, the Court below could have expedited the hearing of the suit with a direction to the parties to maintain status quo. An absolute refusal of grant of injunction on the part of the Court below appears to be faulty. In AIR 2005 SC 104: 2005(23) LCD 298 (SC), Maharwal Khewaji Trust(Regd), Faridkot Vs. Baldev Dass, it has been held that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In 2001 All CJ 579 (FB) , Sunni Central Board of Waqfs U.P. and others Vs. Gopal Singh Visharad and others, 1995 (3) AWC 1573 (DB), Bhardwaj Medical Centre Vs. Noida Authority and others and 1991 (2) AWC 786 (DB), Vidya Matri Mandir(Regd) Meerut Road, Gaziabad Vs. Rajinder Nath and another, in various circumstances, the Court held that to avoid the multiplicity of proceedings and for the ends of justice there would not be any error in passing the order of status quo in an appropriate circumstance. In 1996 (1) ACJ 225 (SC) Smt. Rajnibai @ Mannubai V. Smt. Kamla Devi and others, it has been held by the Supreme Court that order XXXIX Rule 1 and 2 of CPC could be available of only when the property, subject matter therein, is in danger of being wasted, damaged or otherwise being dealt with."
Accordingly, the legal position which emerges out is to the effect that in a suit for injunction while disposing of an application for temporary injunction, the Court should inquire on affidavit, evidence and other materials placed before the it to find a strong prima facie case, balance of convenience and irreparable loss before granting injunction in favour of a person/plaintiff. However, in case the Court has any doubt in its mind in spite of material evidence and documents placed by a person/plaintiff in support of his case for grant of temporary injunction, and prior to granting the same, issues notices to the defendant calling upon him to file objections, then the said action on the part of the court is neither illegal nor arbitrary rather the same is in conformity to the principles of natural justice and is in accordance with law.
Keeping in view the above facts, as in the instant case on the application for temporary injunction (5Ga 2) moved on behalf of the plaintiff/ petitioner, the court below after going through the documents on record was prima facie of the opinion that in view of the facts and circumstances it is expedient to give an opportunity of hearing to the defendants before granting ex-parte injunction order, accordingly notices were issued for the said purpose so the said action on the part of the court below is perfectly valid rather in accordance with law as laid down by the Hon'ble Apex Court in the case of Kashi Math Samsthan and another Vs. Srimad Sudhindra Thirtha Swamy and others, JT 2009 (15) SC 33.
For the foregoing reasons, the writ petition lacks merit and is dismissed.
No order as to costs.
11.10.2010 D.K.