PHANI BHUSAN DEY Vs. SUDHAMOYEE ROY

JUDGEMENT

(1.) In the suit giving rise to this appeal, the plaintiff/respondent no.1 obtained an order of temporary injunction restraining the defendant no.1/respondent no.2 from transferring the suit-property of any part thereof to anyone in any manner. But it is alleged that while the aforesaid order of injunction was in operation, the defendant no.1, in violation of the said order of injunction, executed a Deed of Sale in respect of the suit-property to and in favour of the defendant no.2/appellant and that on the strength of such sale, the defendant no. 2 has now raised a construction on the suit-land.

(2.) The plaintiff thereafter filed another application for injunction under Order 39, Rule 1 of the Code of Civil Procedure restraining the defendant no.2 from obtaining electric connection to the newly constructed house till the disposal of the suit and such injunction was granted on 13.8.1985. The defendant no.2 has thereafter filed an application under Order 39 Rule 4 read with Section 151 of the Code for having the aforesaid order of injunction discharged or varied and the said application having been dismissed, the defendant no.2 has preferred this appeal.

(3.) It is true, that the defendant no.2 not having preferred any appeal against the order of injunction, but having preferred this appeal only against the order dismissing his application for discharge or variation of the order of injunction, the legality or the propriety of the aforesaid order of injunction may not be directly assailed in this appeal. We have not, however, been able to appreciate the legality or the propriety of the said order. It is too well-settled to require any citation that even if the plaintiff has made out a prima facie case, a temporary injunction ought not to be issued in his favour unless he would suffer irreparable injury without such an order of injunction. Even assuming arguendo that the plaintiff is entitled to the suit-land and the defendant no.1 could not convey the same to the defendant no.2, we still fail to understand that the defendant no.2 being admittedly in possession thereof and having constructed a house thereon, what injury, it at all, the plaintiff could suffer if during the pendency of the suit the defendant no.2 obtained electric connection or say, water connection, to the house for domestic use. Then again, it is equally well-settled that a temporary injunction is not to be granted in favour of the plaintiff unless the Court is satisfied that the balance of convenience and inconvenience is in his favour and is against the defendant. Now, here in this case, if the plaintiff succeeds in her suit and establishes her title to the suit-land, she would get all the reliefs in respect thereof and the electrification of the house in the meantime would not and cannot adversely affect any of those in the reliefs. But if the suit finally fails and the defendant no.2 remains injuncted from obtaining electric connection to the house during the pendency of the suit, the inconvenience suffered by him during the period would remain irremediable.