Heard Sri Siddhartha Varma, learned counsel for the petitioners and Sri Rajiv Joshi for the respondents who states that he does not propose to file any counter affidavit. With the consent of the learned counsel for the parties, the writ petition is being finally disposed of at this stage.
Facts are that suit for injunction was filed by the plaintiffsrespondents to restrain the defendants petitioners from encroaching upon the road by extending their shop and not to display the shoes, chappals and other articles on the road so as to create hindrance in the ingress and egress to his adjoining shop. An application for temporary injunction was also moved. The court below rejected the temporary injunction application on the ground that even in case some encroachment has been made by the defendantspetitioners on the road then there is a remedy provided under Nagar Nigam Adhiniyam and also under Section 133 Cr.P.C, as such the plaintiffsrespondents are not entitled for any interim injunction. On an appeal being filed, the lower appellate court allowed the appeal in part and granted injunction that the defendants may continue with the business in the shop and on the platform before his shop but shall not display showes, chappals and other articles in such a manner which may cause inconvenince in the ingress and and egress to the plaintiffsrespondents' adjoining shop.
It has been contended by learned counsel for the defendantspetitioners that the lower appellate court has granted temporary injunction without recording any finding with respect to primafacie case, balance of convenience and irreparable loss. It has further been contended that the interim injunction is absolutely vague and would result in various complication. In reply, learned counsel for the respondents submitted that the trial court wrongly rejected the injunction application and the appeal has rightly been allowed inasmuch as the defendants petitioners displayed their goods in such a manner on the 'Chabutra' and in front of their shop, which is adjoining to the shop of the plaintiffsrespondents that the ingress and egress is severely obstructed.
I have considered the argument advanced by learned counsel for the parties and perused the record.
Both the courts below have written lengthy judgements by making reference a large number of case laws cited on behalf of both the parties. Trial court rejected the application for temporary injunction solely on the ground that the remedy is available under the Nagar Nigam Adhiniyam and also under Section 133 Cr.P.C, in case the defendantspetitioners are encroaching upon the road side 'Patri' by displaying their goods. No finding with respect to primafacie case, balance of conveyance or irreparable loss has been recorded, which are necessary ingredients while considering the question for grant of temporary injunction, the same mistake has been committed by the lower appellate court inasmuch as without returning any finding on the three ingredients, the appeal has been partly allowed with an injunction not to display the goods in such a manner which may cause obstruction to the ingress and egress to the plaintiffsrespondents' shop. The injunction also appears to be vague and unenforceable.
In view of above, the order dated 24.4.2009 passed by the trial court as well as order dated 22.12.2009 passed by the lower appellate court cannot be sustained and are hereby quashed. The writ petition stands allowed.
The matter is remanded back to the trial court to decide the application for temporary injunction afresh in accordance with law after recording finding with respect to primafacie case, balance of convenience and irreparable loss to the parties expeditiously preferably within a period of three months from the date of production of a certified copy of this order before him Order Date :- 2.2.2010 nd