GIRDHARILAL Vs. BHONRIYA

JUDGEMENT

(1.) THIS revision has been filed against an appellate order of the learned Additional Commis-sioner, Jaipur, dated 14. 8. 56 whereby he refused the applicant's prayer for the issue of a temporary injunction, pending disposal of the suit for possession between the parties.

(2.) WE have heard the learned counsel and have examined the orders of the trial court as well as the lower court, both of whom rejected the applicant's prayer for the issue of a temporary injunction, under sec. 212 of Rajasthan Tenancy Act, 1956 read with Order 39, rule (!), G. P. C. The contention of the learned counsel for the applicant is that as the opposite party was unlawfully constructing a house on the applicant's land and was thus causing injury to the land in dispute, his application falls under order 39, rule (2), C. P. C. and the opposite party be, therefore, restrained from causing any injury to the property. This contention is bound to fail, for the simple reason that the first essential condition of the applicability of this rule is that the suit must be one for an injunction. As the applicant's suit was for possession and not fur the grant of injunction against the opposite party, Order 39, rule (2), C. P. C. is clearly not applicable to the case. In the alternative, the learned counsel argued that his prayer for the, issue of temporary injunction may be granted under order 39, rule (1), C. P. C. read with sec. 212 of the Rajasthan Tenancy Act, 1956 as in consequence of the alleged unlawfull construction by the opposite party, the property in dispute in the suit was in danger of being wasted and damaged. The principles which govern the exercise of discretion by the courts under the aforesaid provision of law have been examined in several cases by the various High Courts and the trend of the authorities is to the effect that the person who seeks a temporary injunction must first satisfy the court that there is a serious question to be tried in a suit and that on the facts before the court, there is a probability of his being entitled to the relief asked for by him; secondly that the court's interference is necessary to protect him from that species of injury which the court considers irreparable before his legal right can be established in the trial and thirdly that the comparative inconvenience which is likely to issue from withholding injunction will be greater than that which is likely to arise from granting it. In essence what it really means is that unless there is a prima facte case and a likelihood of irreparable injury to the applicant, a temporary injunction is not to be allowed by a court. Both the courts below have held that from the facts disclosed in the ease, none of the conditions mentioned above justify the granting of a temporary injunction. The learned counsel has also not been able to satisfy us that any of the essential conditions mentioned in order 39, rule (1), G. P. C. read with sec. 212 of Rajasthan Tenancy Act, 1955 exist to justify an interference in this case by us in the concurrent decision which has been given by both the courts after exercising their judicial discretion in the matter. The application is accordingly rejected. .