MUNNI JASWANT KAUR Vs. BHONRI DEVI

JUDGEMENT

(1.) [One Mohanlal took on lease plot of land for 15 years w.e.f. 1.9.49. He put up structures on the same. On the expiry of 15 years, Respondent I sued him for eviction on 26.5.69. He died on 3-1-70 and all his LRS from 2 widows were brought an record. Report of service of the petitioner was 'refusal.' It was deemed a sufficient service. Some L.R's appeared and suit was decreed on 15-5-71. Petitioner's mother then made an application for setting aside of exparte decree. Petitioner did not join her. Application was dismissed. Petitioner then filed instant suit for setting aside of the decree and applied for interim injunction under 0.39 Rules 1&2 and S. 151, Civil Procedure Code . Trial Court held that plaintiff had no prima facie case. 1st appellate Court held that order appealed against was made u/s 151 and was not appealable. Petitioner moved High Court.]. Para 6 onwards, judgement is ',-

(2.) The principles for the grant of temporary injunction are well-settled. In order to obtain the interim relief, the plaintiff must show :- (i) That he has a prima-facie case ; (ii) that he is likely to suffer an irreparable injury if the injunction is not granted ; (iii) that the balance of convenience lies in his favour. The prima-facie nature of the case means that on a perusal of the plaint, the Court is satisfied that there is a serious question to be tried at the hearing and that the suit is not barred by any principles of law and on the allegations made between the parties, there is a probability that on the facts before it, the plaintiff is entitled to the relief. It may be noticed that at the stage of interlocutory application, the plaintiff is not required to make out a complete legal right, but has to satisfy the Court that he has a prima-facie case to raise and a mere existence of a doubt as to the plaintiff's right does not itself constitute a sufficient ground for refusing the injunction, although it is always a circumstance which calls for the attention of the Court. As far as the irreparable injury is concerned, the plaintiff is not required to show that the injury is not physically capable of being remedied, but the inadequacy of remedy by damages for the legal injury would be sufficient to constitute an irreparable injury. As regards balance of convenience, the plaintiff has to show that the inconvenience resulting to him in the event of withholding relief of temporary injunction is likely to exceed the inconvenience to the defendants which he would suffer by grant of injunction. It must also be borne in mind that the grant of injunction rests in the judicial discretion of the Court and so all the " circumstances which may disentitle a party to the exercise of discretion in his favour would disentitle the plaintiff to the injunction.

(3.) In the instant case, the petitioner is not in possession of the premises in dispute. The decree against Shanti Devi, her mother, has become final and executable and her application for setting aside the decree has finally been dismissed. Sita Devi, the other wife of Mohan Lal, appeared in the suit and contested it. There is a rule of law, the application of which will require consideration by the Court below at the trial of the suit that where a decree has become final against one of the legal representatives of the deceased, whether the estate of the deceased was sufficiently represented and the decree would bind all the other represented to unrepresented legal representative?. The petitioner admittedly came to know of the passing of t ha decree against her in December, 197; and she did not take any steps to have the same set aside by an appropriate application or even by the institution of the present suit till after 16 months had passed and then she had waited until the dismissal of the application of Shanti Devi for setting aside the decree. This would show that the petitioner herself is not interested in the suit property but she is really trying to fight a lost battle for her mother Shanti Devi who cannot resist execution. Both the Courts below have concurrently observed that the petitioner does not have a prima-facie case and they have, in exercise of their discretion, refused injunction. Even the allegations of the petitioner made in the plaint do not disclose any particulars of the fraud except-non- service of the summons and false report of refusal and they could not justify grant of any injunction. I do not find any cogent reason to differ from the Courts below.