Bed Ram vs Manmohan Malhotra

Tarlok Singh Chauhan, J.—Issue notice returnable within three weeks subject to the plaintiff producing the certified copies of the documents at page Nos. 33 to 35. The objection raised by the Registry is overruled. List on 1.8.2014.

OMP No. 291 of 2014.

Notice in the aforesaid terms. The plaintiff/applicant has filed suit for specific performance and permanent prohibitory injunction on the allegation that the suit has been presented which is pending admission and a very good prima facie case lies in favour of the applicant and there is every likelihood of the suit being decreed. It is alleged that respondents No. 3 & 4 after purchase of the land on the basis of the illegal, null and void transaction, are threatening to dispossess the applicant from the suit land and are interfering in his peaceful possession. It is alleged that respondents No. 3 & 4 are likely to sell, transfer, alienate, encumber or change the nature of the suit property to deprive the plaintiff of his legitimate right to enforce the agreement of sale and in the event the non-applicants succeed in doing the aforementioned acts, the plaintiff shall suffer irreparable loss and injury which cannot be compensated in terms of money. It is alleged that the balance of convenience also lies in favour of the applicant. It is further alleged that the entire sale transactions have been made by the respondents No. 1 & 2 in favour of respondents No. 3 & 4 as closed guarded secrets to obtain undue advantage and the respondents were fully aware that the suit land had already been agreed to be sold by them to the plaintiff vide agreement dated 18.8.2012 for a sale consideration of Rs. 25.00 lacs. It is claimed that the respondents had deliberately contemplated breach of the stipulation of the agreement despite the applicant being ready and willing, even as on date, to perform his part of the contract. It is claimed that taking into account the aforesaid facts, the respondents be restrained from selling, encumbering, dispossessing and changing the nature of the land.

I have given my deep and thoughtful consideration to the averments made in the plaint and the documents appended thereto.

It is settled law that power to grant injunction is not only discretionary but is equitable. A temporary injunction cannot be claimed by a party as a matter of right nor would a court grant such injunction as a matter of course. The power to grant injunction has also been considered to be extraordinary in nature and therefore, has to be exercised cautiously and with circumspection. The court can grant such relief ex-debito-justitiae i.e. to meet the ends of justice. Being equitable relief, before deciding an application for an interim injunction, the court is required to keep in mind several aspects. The court of equity would exercise discretionary power in granting temporary injunction only when justice, equity, good conscience require to issue such orders and the court is satisfied that:

(i) the plaintiff has made out a prima facie case;

(ii) that balance of convenience lies in his favour and

(iii) in case injunction is not granted, he shall suffer irreparable loss and injury, which cannot be compensated in any terms.

In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., , the Hon'ble Supreme Court has held as under:-

Generally, however, the interlocutory remedy by way of a grant of an order of injunction is intended to preserve and maintain in status quo the rights of the parties and to protect the plaintiff, being the initiator, of the action against incursion of his rights and for which there is no appropriate compensation being quantified in terms of damages. The basic principle of the grant of an order of injunction is to assess the right and need of the plaintiff as against that of the defendant and it is a duty incumbent on to the law courts to determine as to where the balance lies.

Another redeeming feature in the matter of grant of interlocutory injunction is that, in the event of a grant of injunction in regard to a party defendant where the latter's enterprise has commenced and in that event the consideration may be somewhat different from that where the defendant is yet to commence its enterprise.

We, however, think it fit to note herein below certain specific considerations in the matter of grant of interlocutory injunction, the basic being-non-expression of opinion as to the merits of the matter by the Court, since the issue of grant of injunction usually, is at the earliest possible stage so far as the time frame is concerned. The other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below:-

(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case-the relief being kept flexible;

(v) The issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties'' case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise.

Bearing in mind the aforesaid facts and circumstances, this is a fit case where an ex-parte ad-interim injunction ought to be granted in favour of the applicant and against the respondents. Accordingly, the respondents are restrained from selling, encumbering, dispossessing and changing the nature of the suit land i.e. 4 plots measuring 8 bighas 18 biswas comprised in Khasra No. 20, 25, 29, 1592/26 entered in Khewat No. 978 Khatauni No. 1221 and land comprised in 4 plots measuring 3 bighas 7 biswas comprised in Khasra No. 21, 22, 23 and 24 entered in Khewat No. 979 Khatauni No. 1222 situated at Phati Shamshi Kothi Khokhan, Tehsil and District Kullu, H.P.

The applicant is directed to comply with the provisions of Order 39 Rule 3 and the affidavit in compliance be filed within the stipulated period as contemplated by the aforesaid provision. List on 1.8.2014.