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1998 SCC OnLine Ori 91 : AIR 1999 Ori 49 : (1999) 1 AP LJ 55
(DNC) 2
BEFORE P.K. MISRA, J.
M/s. Graftek Pvt. Ltd. and others … Appellants;
Versus
Shri Lord Lingaraj Mahaprabhu … Respondent.
*
Miscellaneous Appeal No. 24 of 1996
Decided on August 31, 1998
Page: 50
JUDGMENT
1. The defendants are the appellants against an order passed by the
trial Court allowing the application of the plaintiff-respondent for
injunction and restraining the present appellants from changing the
nature and character of the disputed land and from doing any kind of
alienation in respect of the suit land till disposal of the suit.
2. The plaintiff-respondent has filed Title Suit No. 235 of 1995 for
declaration that defendants 1 to 4 or their vendor had not acquired any
right of occupancy or any other right in respect of the disputed land. It
is alleged that plaintiff is the owner in respect of the disputed land. By
Resolution dated 10-3-1937 and 11-3-1937, it had been decided to
lease out the disputed land in favour of Dr. Ramendu Ray subject to
certain conditions and subject to depositing Rs. 250/-. Though the said
Ramendu Ray deposited Rs. 250/-, but the other conditions were not
fulfilled and plaintiff continued in possession. On 24-9-1941, the
Manager of the plaintiff wrote a letter to Dr. Ramendu Ray to comply
with other conditions, but Ramendu Ray did not comply the same, but
possessed the disputed land. When the plaintiff found out that
Ramendu Ray's widow Bibhabati Ray was in wrongful possession of the
disputed land, O.J. Case No. 66 of 1970 was filed under Section 68 of
the Orissa Hindu Religious Endowments Act. Thereafter the disputed
land vested in the State Government and was settled with the plaintiff
in a proceeding under the Orissa Estates Abolition Act. The matter
came up to High Court in O.J.C. No. 166 of 1984 which was allowed in
favour of the present appellants. The plaintiff filed Civil Appeal No.
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5253 of 1995 in the Supreme Court. The Supreme Court while
dismissing the appeal by judgment dated 2-5-1995 directed the
plaintiff to file a suit in the Civil Court. Thereafter the suit in question
was filed before the Civil Court. During the pendency of the suit, a
petition under Order 39, Rules 1 and 2 Code of Civil Procedure, was
filed seeking to restrain the defendants from alienating the disputed
property and from raising any construction on the disputed land.
3. The defendants in their objection raised several contentions
against maintainability of the suit on the ground of limitation, principles
of estoppel and res judicata and made averments indicating that the
defendants had acquired indefeasible right over the disputed property.
4. The trial Court found that there was prima facie case in favour of
the plaintiff and the balance of convenience was also in favour of the
plaintiff. On these findings, the trial Court passed an order injuncting
the defendants from alienating the disputed property and changing the
nature and character of the disputed land till disposal of the suit.
Hence, the present appeal by the defendants 1 to 4.
5. The learned counsel appearing for the appellants has submitted
that the trial Court has not found out if any irreparable loss would be
caused to the plaintiff in case injunction would have been refused. The
learned counsel for the appellants also submitted that the findings of
the trial Court regarding existence of prima facie case and balance of
convenience in favour of the plaintiff are not tenable.
The learned counsel appearing for the respondent has supported the
reasoning given by the trial Court and has submitted that since serious
questions relating to title are involved, the order passed by the trial
Court should not be interfered.
6. The principles governing grant of injunction are well-known and
any attempt to re-formulate those principles is likely to be repetitive.
Even then, the well-recognised principles need be reiterated particularly
in view of the serious contentions raised by counsels for both parties.
As early as in the decision, reported in AIR 1946 Patna 177 (Brajendra
Nath Ghosh v. Smt. Kashi Bai), a Division Bench of the Patna High
Court had laid down the various principles relating to grant of an order
of injunction. It was observed in the said case that in order to obtain an
interlocutory injunction, it is not enough for the plaintiff to show that he
has a prima facie case. He must further show that in the event of
withholding the relief of temporary injunction, he will suffer an
irreparable injury. The plaintiff should establish that the balance of
convenience is in his favour or, in other words, his inconvenience in the
event of withholding the relief of temporary injunction will in all events
exceed that of the defendant in case he is restrained. The plaintiff must
also show a clear necessity for affording immediate protection to his
alleged right which would otherwise be seriously injured or impaired.
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The aforesaid decision has been very often followed in all the Courts in
Orissa. The said principle has been noticed and reiterated in the
decision of this Court, reported in
Page: 51
(1974) 40 CLT 336 (Orissa State Commercial Transport Corporation Ltd.
represented by its Secretary Sri C.B.S. Ramchandra Rao v. Sri
Satyanarayan Singh) wherein, it was observed:—
“The following propositions are to be established in order to invoke
the jurisdiction of the Court to get an interlocutory order of
injunction under Order 39, Rules 1 and 2, Civil Procedure Code:
(i) Plaintiff has a prima facie case.
(ii) If interim injunction is refused he will suffer an irreparable
injury.
(iii) The balance of convenience is in his favour.”
The Supreme Court in the decision reported in AIR 1993 SC 276 :
(1992 AIR SCW 3128), Dalpat Kumar v. Prahlad Singh, while
considering the principle relating to grant of temporary injunction,
observed:—
“…It is settled law that the grant of injunction is a discretionary
relief. The exercise thereof is subject to the Court satisfying that
(1) there is a serious disputed question to be tried in the suit and
that an act, on the facts before the Court, there is a probability
of his being entitled to the relief asked for by the
plaintiff/defendant:
(2) The Court's interference is necessary to protect the party from
the species of injury. In other words, irreparable injury or
damage would ensue before the legal right would be
established at trial; and
(3) that the comparative hardship or mischief or inconvenience
which is likely to occur from withholding the injunction will be
greater than that would be likely to arise from granting it.”
The Supreme Court further observed (at page 277 (of AIR):
“…. Prima facie case is not to be confused with prima facie title which
has to be established, on evidence at the trial. Only prima facie case
is a substantial question raised, bona fide, which needs investigation
and a decision on merits. Satisfaction that there is a Prima facie case
by itself is not sufficient to grant injunction. The Court further has to
satisfy that non-interference by the Court would result in ‘irreparable
injury’ to the party seeking relief and that there is no other remedy
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available to the party except one to grant injunction and he needs
protection from the consequences of apprehended injury or
dispossession. Irreparable injury, however, does not mean that there
must be no physical possibility of repairing the injury, but means
only that the injury must be a material one, namely one that cannot
be adequately compensated by way of damages. The third condition
also is that ‘the balance of convenience’ must be in favour of
granting injunction. The Court while granting or refusing to grant
injunction should exercise sound judicial discretion to find the
amount of substantial mischief or injury which is likely to be caused
to the parties, if the injunction is refused and compare it with that it
is likely to be caused to the other side if the injunction is granted. If
on weighing competing possibilities or probabilities of likelihood of
injury and if the Court considers that pending the suit, the subject-
matter should be maintained in status quo, an injunction would be
issued. Thus the Court has to exercise its sound judicial discretion in
granting or refusing the relief of ad interim injunction pending the
suit.”
In subsequent paragraph, the Supreme Court further observed (at
page 278 (of AIR):
“…. The phrases ‘prima facie case’, ‘balance of convenience’ and
‘irreparable loss’ are not rhetoric phrases for incantation, but words
of width and elesticity, to meet myriad situations presented by
man's ingenuity in given facts and circumstances, but always is
hedged with sound exercise of judicial discretion to meet the ends of
justice…..”
7. Tested against the aforesaid backdrop of legal principles involved
in the matter of grant of injunction, the impugned order appears to be
vulnerable. It is, of course, true that, it cannot be said that there is no
prima facie case in favour of the plaintiff particularly in the backdrop of
the case and the observation of the Hon'ble Supreme Court in the Civil
Appeal that the rights of the parties have to be established in a Civil
Court. But even assuming that there is a prima facie case, the question
is whether any irreparable loss would be caused to the plaintiff if
injunction is not granted and further whether balance of convenience
was in favour of the plaintiff.
8. So far as the question of irreparable loss is
Page: 52
concerned, the trial Court does not appear to have adverted to this
aspect. The injunction sought for is against alienation and against
making any construction on the disputed land. So far as alienation is
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concerned, since a suit is already pending, the doctrine of lis pendens
would be squarely applicable and as such no irreparable loss can be
caused to the plaintiff even if there is alienation as the alienees would
be bound by the decision in the civil suit, whether they are impleaded
or not impleaded as parties to the suit. To allay any further
apprehension in the mind of the plaintiff, a condition can also be
imposed to the effect that in case the property is alienated, it must be
indicated by the vendor in the sale deed that the property is subject-
matter of the suit and the purchaser should be bound by the decision of
the Civil Court.
9. The question of not making construction may stand on a different
footing depending upon, the facts and circumstances of a particular
case. For example, if the dispute is relating to agricultural land and any
construction is to be made on such agricultural land, the nature of the
land may be irretrievably lost and may cause irreparable injury to the
plaintiff. Similarly, where the disputed land is a tank required for
irrigation by the plaintiff and the same is converted to agricultural land
or homestead land, it can be said that irreparable loss can be caused.
In other words, where nature and use of the land are likely to be
changed, a Court can justifiably come to a conclusion that irreparable
loss is likely to be caused to the party. From the materials on record, it
is apparent that the disputed property which is situated in
Bhubaneswar, though originally agricultural land, has lost its character
as agricultural land and, in fact, constructions have been made on part
of the disputed land, as admitted by the plaintiff. It is not the case of
the plaintiff that agricultural land was sought to be utilised for the
purpose of construction of building and thus the nature of the land
would be lost for ever causing irreparable loss to the plaintiff. In course
of hearing of this appeal, the learned Advocate on record has submitted
in clear terms that the defendants would not claim any equity in case
they ultimately lose in the suit and were prepared to restore possession
of the land to the plaintiff in the same condition in which the lands
were at the time of filing of the suit. In other words, defendants are
prepared to undertake to restore status quo ante if so required in the
event of ultimate success of the plaintiff. The learned counsel has
further submitted that if required, a written undertaking supported by
affidavit to the aforesaid effect can be furnished.
As observed in the decision reported in AIR 1962 Kerala 16, Thomas
Ben v. Parvathy Ommini, where in a suit plaintiff applies for injunction
restraining the defendant from constructing any building on the
disputed land and defendant undertakes that building constructed
would be removed without raising any claim for compensation in case
the plaintiff's right to recover possession of the property is established,
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the application for injunction should be rejected. In view of the
statement made by the learned counsel for the defendant-appellants, I
direct that the defendants shall furnish a written undertaking supported
by affidavit to the effect that they will not claim any equity and shall
restore vacant possession of the disputed land in favour of the plaintiff
in the event of ultimate success of the plaintiff. In view of such
direction, I do not think any injury, far less irreparable injury, would be
caused to the plaintiff in case injunction is refused.
10. Coming to the question of balance of convenience, I am unable
to accept the reasonings of the trial Court. As found by the trial Court
itself, the defendants have remained in possession of the disputed land
since 1972 and their predecessor-in-interest were in possession since
1937. It is not disputed that on a portion of the disputed land some
constructions had already been made by the defendants much prior to
the filing of the suit. Considering the question of comparative hardship
to the plaintiff and defendants, I feel the balance of convenience
definitely tilts in favour of the defendants rather than the plaintiff.
11. For the aforesaid reasons, in disagreement with the trial Court, I
hold that it is not a fit case where order of injunction should have been
issued. The appeal is, therefore, allowed subject to the following
conditions:—
(1) The defendants shall furnish an undertaking in the trial Court to
the effect that they shall not claim any equity and shall deliver
vacant possession to the plaintiff in the event of success of the
plaintiff. If the undertaking is not furnished, the appeal shall be
deemed to have been rejected;
(2) In case the disputed land or part of it is alienated, a specific
clause shall be incorporated in the sale deed indicating that the
alienated
Page: 53
property is subject-matter of the present suit and the purchaser shall
be bound to deliver vacant possession of the land in the event of
success of the plaintiff; and
(3) Violation of the above conditions would amount to contempt of
the order of the High Court.
I make no order as to costs.
Appeal allowed.
———
*
Against the Order passed by Shri B.C. Mishra, C.J., (Sr. Div.), Bhubaneswar, D/- 4-12-1995.
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