Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 6851 of 2018 Petitioner :- Shahjahan Khan Respondent :- District Judge Ghazipur And 3 Others Counsel for Petitioner :- Santosh Kumar Jaiswal Counsel for Respondent :- Niyaz Ahmad Khan
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri S.K. Jaiswal, learned counsel for the plaintiff- petitioner and Shri N.A. Khan, learned counsel for the defendants-respondents.
The petitioner is before this Court assailing the order dated 4.7.2018 passed by the District Judge, Ghazipur in Misc. Civil Appeal No.23 of 2018 (Shahjahan Khan vs. Ibrar Khan and another) and the order dated 18.2.2017 passed by the 7th Additional Civil Judge (Junior Division)/Judicial Magistrate, Ghazipur in Original Suit No.445 of 2012 (Shahjahan Khan vs. Ibrar Khan and another).
Learned counsel for the plaintiff-petitioner submits that the petitioner filed the aforesaid Original Suit No.445 of 2012 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 18.2.2017, 7th Additional Civil Judge (Junior Division)/Judicial Magistrate, Ghazipur, without perusing the evidences available on record and without applying his judicial mind, rejected the same. Aggrieved by the same, the plaintiff-petitioner filed an appeal bearing Misc. Civil Appeal No.23 of 2018 and the District Judge, Ghazipur has dismissed the appeal on 4.7.2018 and affirmed the order of the court below dated 18.2.2017.
At the very outset, learned counsel for the contesting respondents apprised to the Court that the proceeding between the parties had been finalized by the judgement and order dated 13.12.1999 passed in Appeal No.239 of 1995. The trial court had also proceeded to consider prima facie case, balance of convenience and irreparable loss and found that all the three ingredients were not in favour of the plaintiff-petitioner and rejected the interim injunction application on 18.2.2017. Even the lower appellate Court has also considered in detail and found that the prima facie case is not in favour of the petitioner and as such, the appeal was also dismissed on 4.7.2018.
After hearing learned counsel for the petitioner and going through the record, 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.
For the foregoing reasons, the writ petition lacks merit and is dismissed.
Order Date :- 14.9.2018 RKP