Haseen Yusuf vs Syed Ashiq Ali

Satish Chandra, C.J.—The Plaintiff opposite party took some loan from a co-operative society. The co-operative society moved the Registrar of Co-operative Societies with a dispute regarding non-payment. In due course, an award was made in favour of the society. The award was put in execution and the property now in dispute belonging to the Plaintiff was sold. In due course the sale certificate was issued to the auction purchaser. The Plaintiff took proceedings under the Arbitration Act for the setting aside of the award. He applied for an adinterim injunction which was granted initially, but was subsequently vacated. The Plaintiff then filed the present suit for an injunction restraining the Defendant from interfering with the Plaintiff''s possession, tie also applied for an adinterim injunction. The trial court refused the prayer. On appeal, the order was reversed. The Defendant was restrained from interfering with the possession of the Plaintiff during the pendency of the suit. Aggrieved, the Defendant has come to this Court.

The concurrent findings are that prima facie nothing has been shown which might indicate that the arbitration proceedings or proceedings in execution of the award were illegal. This shows that the sale was valid and so was the issuance of the sale certificate. The lower appellate court was influenced by the fact that in the Co-operative Societies Act and the Rules there was no specific provision entitling any officer to deliver possession to the auction purchaser. From this it was deduced that the case of the Defendant that he was in possession was not liable to be believed. On these findings, the order of injunction was issued.

In my opinion, the lower appellate court misconceived the true legal position. Order XXXIX, CPC or Section 151 do not entitle the Court to issue injunctions against the lawful owner. In the present case, on the findings it was clear that the Defendant auction purchaser was the lawful owner of the property because prima facie the Plaintiff had failed to prove that there was any illegality in the sale or the sale certificate. In that view, the injunction issued by the lower appellate court amounts to restraining the true owner from taking and remaining in possession. Such a situation is not fit for the exercise of the discretionary jurisdiction for granting a temporary injunction.

A Division Bench of this Court in Badri Prasad Vs. Chokhey Lal, observed as follows:

The Plaintiff ought to be able to satisfy the court of the practical certainty of success, and of the existence of grave danger, and of a real fear that a dishonest Defendant, undoubtedly liable, is making away with the probable fruits of the judgment.

It is thus clear that the grant of an ad-interim injunction is an extraordinary thing. It is not permissible to grant it unless the Plaintiff establishes that the Defendant has no case on merits, that the Plaintiff is undoubtedly entitled to a decree and the Defendant undoubtedly liable or likely to take away the fruits of the decree. None of the principles are satisfied in the present case. The Defendant could not have run away with the land which was the subject-matter of the suit. On the findings themselves, it is clear that the Plaintiff had no prima facie case. Under the circumstances, the lower appellate court misconceived the limits of its jurisdiction in issuing the interim injunction.

In the result, the revision succeeds and is allowed. The impugned order of the lower appellate court is set aside. The applicant will be entitled to costs.