BHAGWANA SINGH Vs. GAON SABHA VILLAGE PAIJANIYA BIJNOR

JUDGEMENT

(1.) UMESHWAR Pandey, J. Heard learned Counsel for the parties.

(2.) THIS petition challenges the order of trial Court as well as the Appellate Court whereby the plaintiff's application for temporary injunction under Order XXXIX, Rules 1 and 2 C. P. C. has been rejected.

(3.) LEARNED Counsel while citing the case law of Dalpat Kumar & Anr. v. Prahlad Singh & Ors. , 1992 (1) ARC 300, has tried to emphasise that in case the plaintiffs-petitioners have their long standing possession over the disputed property, their interest to the extent of restraining defendant from evicting them from the property should be protected and that alone is the purpose of Order XXXIX, Rule 1 and 2 C. P. C. While dealing with the scope of granting temporary injunction under the aforesaid provision of the Code, the apex Court in this case has specifically propounded that the presence of all the aforesaid three parameters is a sine qua non and without that the Courts cannot satisfy themselves for such grant of temporary injunction. In the aforesaid case, it has been made clear by the Hon'ble Supreme Court that the existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction and the petitioners must possess a prima facie case to that extent. Satisfaction of the Court to the extent of prima facie is not alone sufficient for grant of injunction. It has to be established on record that non-interference by the Court would result in irraparable injury to the party seeking such relief of temporary injunction and no other remedy would be available thereafter if the injunction is refused. The third condition "the balance of convenience" has also been discussed by the Hon'ble Court and it has been propounded that this balance must be in favour of granting injunction and not refusing it. The Gaon Sabha-respondent defendant has an order of the competent Court for eviction of the petitioners from the disputed land. Even without seeking relief of declaration of title over the said Abadi site the plaintiffs in the garb of injunction suit are trying to withhold the execution of the said order of the authorities passed under Section 122-B of the Act. Obviously, in such a fact situation, it cannot be said that the balance of convenience is in favour of grant of temporary injunction and not in favour of refusal of the same. As regards the irreparable injury, which has to be incurred in the event of refusal of the prayer of temporary injunction, it cannot be said that the possession of the petitioners if is disturbed the pendency of the suit, it will not be restorable to them in case they are found real owners of the property after the final disposal of the suit. Therefore, in the available circumstances, if both the Courts below have found it not be a case for grant of temporary injunction, I do not propose to interfere in such orders.