CHHATU RAM BHADANI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been filed by the plaintiffs and it is directed against an order passed by the trial court dated the 12th April. 1969, rejecting the plaintiffs' petition praying for an ad interim injunction. The plaintiffs have instituted a suit claiming a relief to the effect that on an adjudication that the plaintiffs are not liable to pay, the defendant be permanently restrained from taking any step for auction sale of the personal properties of the plaintiffs, advertised and described in schedule 1 of the plaint or from taking any other step in Certificate Case No. 20/OD/63-64. In that suit the plaintiffs filed an application under Order XXXIX Rules 1 and 2 and Section 151 of the Code of Civil Procedure, praying that the defendant be injuncted by an ad interim order, restraining it from selling the properties given in Schedule 1 of the plaint or from taking further steps against the plaintiffs in the certificate case in question. On hearing the parties, the learned trial Judge has considered various aspects of the case and has stated that in view of the circumstances, the plaintiffs might have a prima facie case, but the balance of convenience is not in their favour nor would they be put to an irreparable loss if injunction is refused.

(2.) Learned counsel for the appellants has drawn our attention to certain paragraphs of the plaint, especially parapraphs 9 and 10, and has argued that not only the plaintiffs had a prima facie case for trial, the balance of convenience was also in their favour for grant of the injunction prayed for. In reply, Sri Katriar has referred to the show cause petition filed on behalf of the defendant in the court below and has specifically relied upon paragraphs 6 and 8 to 10 thereof. Sri Katriar has contended that it was open to the defendant to realise certain dues under the mortgage mentioned in the show cause petition against the plaintiffs and that the balance of convenience was not in favour of grant of an injunction, as by an injunction, realisation of a large sum of money will be postponed. Having heard the learned counsel for the parties we are of the opinion that substantial questions of law and fact have to be decided in the suit itself and that it cannot be said that the plaintiffs have not got a prima facie case in their favour for final adjudication. The conclusion of the learned trial Judge seems to be also that there is a prima facie case for trial. On the question of balance of convenience on this side or that, the learned Subordinate Judge has not given any reason for his conclusion that the balance of convenience was not in the plaintiff's favour. We do not think that the conclusion of the learned Subordinate Judge is sound, as the properties of the appellants, which are on sale, are said to be two houses at Jhumri Tilaiva in the district of Hazaribagh. If these properties are sold now and purchased by stranger to this litigation, and ultimately the plaintiffs' suit succeeds, there may be difficulty in the way of the plaintiffs recovering possession of the houses from strangers. On the other hand, the defendant of the suit is entitled to interest on the amount of the loan mentioned in paragraph 4 of the defendant's show cause petition, and when the dues are realised, the defendant of the suit will also be entitled to realise interest. Therefore, on the assumption that there is a prima facie case to go to trial, we are of the view that the balance of convenience lies in retaining the status quo, so that an order of ad interim injunction should have been passed by the trial court in this case.

(3.) For these reasons we are of the opinion that the appeal should be allowed and the defendant should be restrained from proceeding against the properties of the plaintiffs in the certificate case in question. We make it clear that no observation of this Court may be taken as any conclusion to be arrived in the suit itself on the disputed facts raised by the parties. The appeal is, therefore, allowed, but under the circumstances, without costs. We are informed that the suit is not yet ready for hearing and. therefore, we cannot direct, at this stage, for its immediate disposal. But, we have no doubt that if the parties co-operate, the suit will be disposed of expeditiously.