GOPIRAM Vs. SHRI THAKURJI

JUDGEMENT

(1.) This application in revision has been filed against an order of the learned Additional Commissioner, Jaipur, dated 5.9.1956 whereby he vacated the order of the trial court who issued a temporary injunction against the opposite party.

(2.) We have heard the learned counsel for the parties and have examined the facts of the case. The contention of the learned counsel for the applicant is that he had established prima facie that he was in possession of the land in dispute and that the opposite party was threatening to dispossess him from the same and also preventing him from collecting the kharif crops which were lying on the fields. He, therefore, prayed that in view of the provisions of Order 39, Rule 1, C.P.C., the temporary injunction issued by the lower court should continue and the order given by the learned Additional Commissioner be vacated.

(3.) The learned counsel for the opposite party contended that a revenue court was competent to issue a temporary injunction only under sec. 212 of the Rajasthan Tenancy Act if it is proved by affidavit or otherwise : - - (a) that any property to which such suit or proceeding relates is in danger of being wasted, damaged or alienated by any party thereto, or (b) that any party to such suit or proceeding threatens or intends to remove or dispose of the said property in order to defeat the ends of justice. It was urged that the applicant had not at all been able to prove any one of these ingredients. It was also pointed out that even the affidavit which was filed by the applicant and on which the trial court acted was not duly attested by the court and that there was no other evidence on the record to support the applicants claim. It was also argued that sec. 212 dots not contemplate a case in which a temporary injunction could be issued to restrain a person from interfering with the cultivation of land in possession of another person. As this contention is bound to prevail we do not think it necessary to go into the remaining contentions which were raised by the parties before us. Under sec. 212 of the Rajasthan Tenancy Act which corresponds to Order 39, Rule 1, C.P.C., it is absolutely essential that the applicant must prove by affidavit or otherwise that the property in question is in danger of being wasted, damaged or alienated by any party to the proceedings or that there is an apprehension that such property is likely to be removed or disposed of in order to defeat the ends of justice. In other words, the prima facie existence of a right and its infringement are the first condition for the grant of a temporary injunction. The applicant should further satisfy that an irreparable injury will accrue to him if the injunction is not granted and that there is no other remedy open to him by which he can protect himself from the consequences of the apprehended injury. He has also to strengthen his case by showing that a substantial mischief will be done to him if it is refused and that the balance of convenience was in his favour. In the present case, the applicant has not bean able to fulfil these conditions as required under sec. 212 of the Rajasthan Tenancy Act. The trial court was evidently wrong in having allowed a temporary injunction. The lower appellate court rightly observed that on the material before it, it was not satisfied that it is a fit case for the issue of a temporary injunction under Order 39, Rule 1, C.P.C and accordingly vacated to order of the trial court, We are also of the view and affirm the order given by the lower appellate court, and reject the application.