Heard Shri N.K. Seth, learned Senior Advocate, assisted by Shri Sachin Garg, Advocate for the petitioner and Shri Mohd. Arif Khan, learned Senior Advocate, assisted by Shri Rajiv Singh Chauhan and Shri Mohd. Babar Khan, Advocates for the opposite party no.4.
By means of present writ petition, the petitioner is seeking a writ of certiorari for quashing the order dated 30.08.2012, passed by the Civil Judge (Senior Division), Lucknow (In-Charge) in Regular Suit No.1121 of 2012 (M/s Viraj Constructions Pvt. Ltd. Vs. Dr. Rajendra Tewari & others), by which the learned Trial Court while issuing notices to the private respondents, fixed date 16.9.2012 for disposal of the application no. C-6 moved by the plaintiff (petitioner herein) under Order 39 Rule 1 & 2 readwith section 151 C.P.C. and declined to grant ex-parte temporary injunction with the observation that he did not find sufficient ground for passing ex-parte interim injunction.
Facts of the case, in brief, are that in the year 1987, a partition amongst Smt. Laxmi Bai Chawla, Sri Ram Prakash Chawla, Sri Shanti Swaroop Chawla and Sri Charanjeet Lal Chawla had taken place vide partition deed dated 22.4.1987 which was duly registered in the office of the Sub Registrar, Lucknow. By virtue of the said partition, Sri Ram Prakash Chawla became the absolute owner of the Khasra Plot No. 92 measuring out 8 Bigha, 9 Biswa and 15 Biswansi and on his death on 16.3.2000, his wife Smt. Devki Narain Chawla, sons Sri Harish Kumar Chawla, Sri Ashok Kumar Chawla and Sri Bharat Bhushan Chawla became absolute owner of the said khasra plot no. 92 & 254. The petitioner purchased plot no. 92,measuring about 1.993 Hectares, situated at village Semra, pargana, tehsil and district Lucknow and is in possession of the same. The petitioner purchased the said plot through separate sale deeds dated 18.7.2011 (Annexures No. 5to 8) from the legal heirs and representatives of late Ram Prakash Chawla, namely, Smt. Devki Narain Chawla, S/Sri Ashok Chawla, Harish Chawla and Bharat Bhushan Chawla.
After purchase of the said plot no. 92, the petitioner became owner of the same and, as such, he moved applications for mutation vide Appln. nos. 3323/2011-12 to 3326/2011-12 before the Tehsildar (Judicial) Sadar, Lucknow and the same are pending waiting their own turn for disposal. Opposite Party No. 11 (Mithilesh Kumar) who is the alleged Attorney of Sri Charanjeet Lal Chawla, in collusion and conspiracy with Dr. Rajendra Tewari (opposite party no. 2) sold the said khasra plot no. 92, measuring about 0.240 hectares in favour of Dr. Rajendra Tewari (opposite party no. 2) by virtue of fraudulent sale deed dated 30.7.1999 (Annexure No. 9). He further sold a plot of same area from Khasra No. 92 to Dr. Shashi Singh (Opposite Party No. 3) vide sale deed dated 30.7.1999 (Annexure No. 10).
As per the partition deed dated 22.4.1987, Sri Charanjeet Lal Chawla was having no right , title or interest in the khasra plot no. 92 and, as such, the two sale deeds dated 30.7.1999 are sham transaction and they are null and void conferring no right, title or interest in favour of Dr. Rajendra Tiwari (Opposite Party no. 2) or Dr. Shashi Singh (Opposite Party No. 3). Dr. Rajendra Tewari as well as Dr. Shashi Singh (Opposite Parties no. 2 & 3) both were fully aware about the said partition deed dated 22.4.1987, executed between Sri Ram Prakash Chawla , Sri Shanti Swaroop Chawla, Sri Charamjeet Lal Chawla and Smt.Laxmi Bai Chawla and they were also fully aware about the fact that the khasra plot no. 92 had fallen into the share of Sri Ram Prakash Chawla. Thereafter it appears that Dr. Shashi Singh and Dr. Rajendra Tewari (Opposite Parties No. 2 & 3) sold a part of the aforesaid khasra plot no. 92 to Smt. Rekha Devi by virtue of fraudulent sale deed dated 4.8.2011 (Annexure No. 11). When the petitioner came to know about the sale deed dated 30.7.1999 as well as sale deed dated 4.8.2011, he opposed the mutation application before the Tehsildar, Lucknow. Smt. Rekha Devi (Opposite Party No. 4) on 18.8.2012 came to the property of the petitioner alongwith some anti-social elements and tried to grab the said plot no. 92. The petitioner approached the Court of Civil Judge (Senior Division), Lucknow on 22.8.2012 by filing Regular Suit No. 1121 of 2012 (M/s Viraj Constructions Pvt. Ltd. vs. Dr. Rajendra Tewari and others) seeking declaration of sale deed as well as for permanent injunction. The petitioner also filed an application under Order 39, Rules 1 & 2 read with section 151 of C .P.C. With the prayer that during pendency of suit, the opposite parties may be restrained from interfering with the peaceful possession of the petitioner over plot no. 92. On the said application, notices were issued to the opposite parties no. 2 to 11 vide order dated 30.8.2012 thereby fixing 16.9.2012 for disposal of the said application. Being aggrieved for not passing exparte order in his favour, the petitioner has approached this Court.
Shri Mohd. Arif Khan, learned Senior Advocate, who has put in appearance on behalf of opposite party no.4, while opposing the writ petition, raised a preliminary objection with respect to maintainability of the writ petition. In support of his submission, Shri Khan placed reliance on the judgment of this Court reported in [2010 (28) LCD 1712], Hari Chaitanya Brahmananda vs. Civil Judge (Junior Division), Court No.15, Sultanpur and others.
I have heard learned counsel for parties and perused the record.
It is not disputed that the petitioner has filed a suit for permanent injunction registered as Regular Suit No. 1121 of 2012 (M/s Viraj Constructions Pvt. Ltd. vs. Dr. Rajendra Tewari & others) in the court of Civil Judge (Senior Division), Lucknow and he moved an application for temporary injunction which was heard on 30.8.2012 and notices were issued to opposite parties no. 2 to 11, fixing 16.9.2012 by the said impugned order dated 30.8.2012.
From perusal of order dated 30.8.2012, it is evident that the court below declined to pass any interim injunction in favour of the plaintiff/ petitioner without giving an opportunity of hearing to the opposite parties and issued notices to the private opposite parties accordingly.
Now, the question arises is as to what principles should be followed by the court below in the matter of grant of ad interim injunction. Of 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. Before granting interim injunction 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 also in his favour and refusal of injunction would cause irreparable injury to him.
It is well settled that in order to get an order of injunction, one has to prove that he has made out a prima facie case in his favour. The Hon'ble Supreme Court in Civil Appeal Nos. 7966 -7967 (Arising out of SLP © Nos. 9165 -9166/2009), Kashi Math Samsthan and another vs. Srimad Sudhindra Thirtha Swami and another, reported in JT 2009 (15) SC 33, has expressed its view in para 13, which reads as under:
?It is well settled that in order to obtain an order of injunction, the party who seeks 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.?
Further, the Hon'ble Apex Court in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi, (1993) 3SCC 161, has held that a party is not entitled to an order of injunction as a matter of right. The relevant para reads as under:-
" 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 vs. Prahlad Singh, reported in (1992) SCC 719 the Hon'ble Supreme 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.
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."
As per 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, 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 view of the aforesaid factual background, this Court is of the view 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 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.
In the instant case, it appears that the petitioner has failed to prove that he has a prima facie case as well as balance of convenience in his favour and, therefore, trial court refused to grant exparte interim injunction. There appears no legal error in the impugned order dated 30.8.2012 by which notices have been issued to the respondents. The court below has committed no error in issuing notices to the respondents rather it is perfectly in accordance with law.
On repeated query, learned counsel for the petitioner failed to point out any irreparable loss caused to him by not granting interim injunction in his favour and which may warrant immediate interference by this Court.
In view of the above, I do not find any good reason to interfere with the matter.
The writ petition lacks merit and is, therefore, dismissed.
Order Date :- 11.9.2012 ashok