Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 6809 of 2018 Petitioner :- Sajjad Husain Respondent :- City Board Jaunpur And 2 Others Counsel for Petitioner :- Satyendra Narayan Singh,Shabana Nizam
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the plaintiff-applicant.
In view of the order, which is proposed to be passed today, notices need not go to the respondents.
The petitioner is before this Court assailing the order impugned dated 21.8.1998 passed by Additional Civil Judge-II (Junior Division), Jaunpur by which he has rejected the interim injunction application (6C) moved by the petitioner in Suit No.72 of 1996 (Abdul Hussain vs. City Board) and the order dated 24.7.2018 passed Additional District Judge/Special Judge, Court No.3, Jaunpur, whereby he has dismissed the Misc. Appeal No.131 of 1998 (Faizul Hasan and others vs. City Board and others) and for direction to the respondent nos.1 and 2 not to interfere in his peaceful possession over the suit property.
Learned counsel for the petitioner submits that the plaintiff-petitioner filed a Suit No.72 of 1996 for permanent injunction in which an application for grant of temporary injunction had been moved under Order 39 Rules 1 and 2 C.P.C. registered as paper 6-Ga. By the order dated 21.8.1998, Additional Civil Judge-II, Jaunpur had rejected the same. Aggrieved by the same, the plaintiff-petitioner filed an appeal bearing Misc. Appeal No.131 of 1998 and the Additional District Judge/Special Judge, Court No.3, Jaunpur has dismissed the appeal on 24.7.2018.
The Court has proceeded to examine the record in question and finds that lower appellate Court has recorded categorical findings of fact in the impugned order that the plaintiff is not in possession of suit property and the said land is public utility land. The point, which is to be considered and decided in the present case, is that under what circumstances, temporary injunction can be granted by the court below. The main object of grant of temporary injunction is to protect the rights of a party pending litigation and also to prevent future injury. Though various principles have been laid down for the grant of temporary or interim injunction, but the Court must take into consideration three important conditions for the grant of temporary or interim injunction i.e., (i) Prima Facie Case;
(ii) Balance of Convenience; and (iii) Irreparable Injury. Before an order of temporary or interim injunction is passed a party has to prove the existence of the above three important ingredients. But, ultimately it is for the Court to decide as to whether, in the facts and circumstances of the case, it is necessary to protect the property, which is the subject matter of the suit from being damaged. The right of a party with regard to the property could be secured by issuing prohibitory order.
Where a party moves the Court for grant of injunction under Order XXXIX Rule 1 or 2, he has to satisfy the Court that the opposite party has threatened or intended to remove or dispossess the property or threaten to dispossess him or otherwise cause injury in relation to the property or the property in dispute is in danger of being wasted, damaged or alienated or fully sold in execution of the decree as provided under Rule 1 (a) (b) and (C) of Order XXXIX or the conditions contemplated in Rule 2 of the Code. The question will then arise as to whether the Court in exercise of its inherent power under Section 151 of the Code of Civil Procedure cannot grant temporary injunction or interim injunction in cases not covered under the aforesaid Rule.
In Manohar Lal Chopra v. Rai Bhaadur Rao Raja Seth Hiralal (AIR 1962 SC 527) it was held that the Court has inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order XXXIX of the Code of Civil Procedure. No party has a right to insist on the Court's exercising that jurisdiction. Inherent jurisdiction can be exercised by the Court only when it considers it absolutely necessary for the ends of justice to do so.
In the case of Kashi Math Samasthan & Anr. Vs. Shrimad Sudhindra Thirtha Swamy & Anr. AIR 2010 SC 296, the Supreme Court held:-
"13. It is well settled that in order to obtain an order of injunction, the party who seek for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court."
In the case of Gujarat Bottling Co. Ltd. & Ors. v. Coca Cola Co. & Ors. AIR 1995 SC 2372, the Supreme Court elaborately discussed the scope and object of Order XXXIX Rule 1 and 2. Their Lordships held:-
"46. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests- (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience" lies. [See: Wander Ltd. v. Antox India (P) Ltd. (1990 Supp. SCC 727) In view of the aforesaid facts as well as reasoning given by the court below while rejecting the case of the petitioner- plaintiff for grant of temporary injunction, I do not find any illegality or infirmity in the impugned orders under challenge in the present writ petition.
Once the Court has declined to interfere with the impugned orders, then learned counsel for the petitioner prays that a direction be issued to the court below to decide the aforesaid suit within stipulated time.
The Hon'ble Supreme Court in M/s Shiv Cotex Versus Tirgun Auto Plast P. Ltd and others, 2011 (89) ALR 232, has made the following observations:-
".................It is high time that courts become sensitive to delays in justice delivery system and realize that adjournments do dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The Courts, particularly Trial Courts, must ensure that on every date of hearing, effective progress takes place in the suit."
Considering the above, this petition stands disposed of with the direction upon the Court concerned to expedite the proceeding of pending Suit No.72 of 1996 (Abdul Hussain vs. City Board) and conclude the same, in accordance with law without granting unnecessary adjournment to either of the parties, except upon payment of cost.
Order Date :- 13.9.2018 RKP