P MUTHUKOYA Vs. M MUTHUKOYA

JUDGEMENT

(1.) APPELLANTS herein filed a suit for injunction restraining the defendants from committing trespass into the suit property. They also filed I. A. No. 139 of 1984 seeking an order of temporary injunction. The court originally allowed the injunction application. However, this court in cma. Nos. 68 and 73 of 1985 set aside the order and remanded the injunction application for fresh consideration. After remand the court below heard the parties and dismissed the injunction application. This order is now challenged by the plaintiffs.

(2.) THE court below has dismissed the injunction application on the ground that plaintiffs have not made out a prima facie case of possession. According to learned counsel for the appellants, the correct approach is not to find out whether the plaintiffs have made out a prima facie case; the correct approach is to find out whether there is a bonafide contention between the parties or a serious question to be tried. According to learned counsel, there is a bonafide contention between the parties and a serious question to be tried and therefore an order of injunction should have been passed. In support of this argument, learned counsel has strongly relied on the decision of a Division Bench of this court in Joshua v. Geevarghese Mar dioscorus (1979-85 KUC. 243 ). It is pointed out that the Division Bench overruled the decision of a learned single judge of this court in Vellakutty v. Karthiyani (1967 KLT. 667 ).

(3.) IT would be instructive to delve further into the logic of the American Cynamid's case, which it must be remembered was propounded in the context of an action for infringement of a prior patent against a trader selling letter patentee's articles and a request for interlocutory relief. Lord Diplock observed at page 509: "my Lords, when an application for interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made on contested facts the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. IT was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff has not been entitled to restrain the defendant from doing what he was threatening to do. 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; but the plaintiff's need for such protection must 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 under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where 'the balance of convenience' lies. At page 510: "one of the reasons for the introduction of the practice of requiring an undertaking as to damages on the grant of an interlocutory injunction was that'it aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing' (Wakefield v. Duke of Buccleuch (1865) 12 LT 628 ). So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought". (emphasis supplied) Mark the above observations what does this mean? This means that the prospect or the absence of prospect of the applicant succeeding in his claim for permanent injunction at the time as disclosed from the materials available to the court at the hearing of the application is a matter for consideration. This is not far from saying that prima facie case must be considered. 7. Lord Diplock also explained the approach to the question of balance of convenience Central to the question is whether the plaintiff would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendants continuing to do what was sought to be enjoined between the time of the application and the time of trial. If damages recoverable at common law would be adequate remedy and defendant would be in a financial position to pay them, no interlocutory injunction should be normally granted, however strong the plaintiff's claim appeared to be at that stage If damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing bis right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason this ground to refuse an interlocutory injunction, (see at page 510 ). We wish to stress that the Cynamid principles rested partly on the practice of english courts to obtain an undertaking from the plaintiff as to the damages. The courts in India had never adopted any such practice.