SHIV NATH Vs. DISTRICT JUDGE NAINITAL

JUDGEMENT

(1.) PETITIONERS filed a suit for permanent injunction, in the court of learned Civil Judge, Nainital, for restraining the defendants (State Government and four others) from interfering with their possession on the land in dispute. In that suit the petitioners also made an application for interim injunction under Order 39 Rule 1 CPC so as to restrain the defendant-respondents from interfering with their possession over the property in dispute, during pendeney of the suit. The case set-up by the petitioners before the court below was that they are in possession of about 400 Acres of land of the Government for the last about eight to ten years and are entitled to continue in possession in view of the policy of the Government of allotting the land to the weaker section of the public. The defendants, while opposing the relief of the plaintiff-petitioners, controverted the allegations made by the petitioners and urged that the petitioners have formed a gang and are trying to usurp the land in dispute which is part of the reserve forest of the Government of U. P. In this connection the defendants have stated that there is vast agricultural land in the name of some of the petitioners in order to demonstrate that the petitioners do not belong to weaker section.

(2.) THE Trial Court by its order dated 30-3-1990 has rejected the application for interim relief of the petitioners on the ground interalia that the petitioners have no prima facie case in as much as the land in dispute is part of the reserve forest of the Government, over which the petitioners cannot lay any claim; that as the injunction can be granted against anybody excepting the true owner, no injunction can be granted at the instance of the petitioners against the Government, who is true owner of the land in dispute, that for obtaining equitable relief of injunction one must come with clean hands and good conduct which the petitioners are lacking- Appeal filed against the aforesaid order, by petitioners, has been dismissed by learned District judge, on 11-4-1990. It is against these two orders that this writ petition has been filed by the petitioners before this Court under Article 226 of the Constitution of India.

(3.) REGARDING the first plea of the learned counsel, it may be mentioned that as observed by the Hon'ble Supreme Court in the case of Hazarat Surat Shah (supra), unless all the three ingradients, namely, prima facie case, balance of convenience and irreparable injury, are established no interim injunction under Order 39 CPC can be granted. The case of Mool Chand (supra) does not lay down anything contra as is clear from its perusal. In that case the appeal was admitted and notice of motion was taken out for suspension of order under appeal. The appeal is only admitted when a good prima facie case is shown and by admission of the appeal prima facie case stands established. The balance of convenience, and irreparable injury were obviously in favour of appellant us the finding recorded was that Sri Mool Chand was in possession of accommodation which is to be vacated by him in pursuance of the order passed by the court below and as such the operation of the order having serious civil consequences require to be stayed by the Appellate Court during pendency of the appeal in as much as, as observed by Hon'ble Supreme Court,