DEBASIS KUMAR DEY Vs. SOVA RAY

JUDGEMENT

(1.) PLAINTIFF is the appellant. He has filed Title Suit No. 252 of 1999 against the present respondents and others for declaration that the decree passed in Title Suit No. 32 of 1968 in the Court of the Subordinate Judge, Baripada, is void and for allotment of share with further prayer that the alienation made in favour of present respondents 3 to 10 is not binding and for permanent injunction restraining such purchasers from interfering with the possession of the plaintiff and defendants 17 to 25. During the pendency of the suit, the plaintiff filed an application under Order 39, Rules 1 and 2, C.P.C., seeking to injunct the present respondents 3 to 10 from disturbing the possession of the plaintiff in respect of 'A' Schedule properties of the injunction application and for restraining the present respondents 1 to 2 from alienating any portion of the disputed properties as mentioned in Schedule 'B' of the said application.

(2.) THE trial Court has rejected such application on the ground that the plaintiff has failed to establish a prima facie case and the balance of convenience was in favour of the respondents and the plaintiff would not to be put to any irreparable loss in case injunction is refused.

(3.) THE trial Court has held that there is no prima facie case by referring to earlier decisions of several Courts. Any discussion relating to the merits of the case is likely to prejudice either party. Even assuming that the plaintiff has got a prima facie case, no order of injunction can be granted unless it is established that the balance of convenience lies in favour of the plaintiff and he will suffer irreparable loss if the injunction is refused. In the present case, the trial Court has observed that the respondents should not be deprived of the fruits of the litigation and the balance of convenience was not in favour of the plaintiff. The conclusion of the trial Court cannot be said to be erroneous. Similarly, it cannot be said that the plaintiff will suffer any irreparable loss if the injunction is refused.