Palliboyina Bulliyya and Others vs Dadi Peda Veeraju (died) and Others

N.D. Patnaik, J.—The respondents herein are the plaintiffs in O.S.138/89 in the court of the District Munsif, Prattipadu. They filed a suit for a mandatory injunction for restoring channel marked as XYZ of a length of about 285 sq. yards and width of l 1/2 yards. In brief their case is that they were taking water to their lands through the said channel and that the defendants who are the owners of the neighbouring land have unauthorisedly closed this channel on 22-7-89. They have filed petition I.A.490/89 for grant of a temporary mandatory injunction. Both the trial Court as well as the appellate Court held that the plaintiffs have made out a prima facie case that they were taking water through the said channel and it was closed by the defendants and granted temporary mandatory injunction directing the defendants to restore the channel till the disposal of the suit. Aggrieved by that the defendants filed this revision.

Since both the courts have found that the channel was existing and that the plaintiffs were taking water to their lands through the channel and that the defendants closed it based upon the material placed before it, that finding of fact arrived at by both the courts cannot be reagitated in this revision.

But, the contention of Mr. Narayana, the learned counsellor the petitioners is-(1) a temporary mandatory injunction can be granted only to restore the status quo as on the date of the filing of the suit and since the channel was already closed on the date of the suit a temporary mandatory injunction cannot be granted. (2) If any loss caused to the plaintiffs can be compensated in terms of money, then no temporary mandatory injunction can be granted.

As regards the first contention he has relied upon the decision of the Calcutta High Court reported in Nandan Pictures Ltd. Vs. Art Pictures Ltd. and Others, . But the learned counsel for the respondents pointed out that according to the averments made in the plaint, which was filed on 23-7-89 the channel was closed by the defendants on the previous day i.e., 22-7-89, that an advocate-commissioner who was appointed to inspect i the suit locality had filed his report on 29-7-89 stating that mere used to be a channel/which appears to have been closed four or five days prior to the date of his inspection and therefore since the channel was closed just before the filing; of the suit, what all the courts have done is to restore the status quo. His contention is that the expression ''status quo'' on the date of the suit has to be interpreted as the status quo preceding immediately before the filing of the suit. In view of the fact that the plaintiffs had come to court complaining that the channel was closed on the previous day, I agree with the contention of the learned counsel for the respondents that the action of the defendants in closing the channel on 22-7-89 has to be rectified by the lower Court and the two Courts below have only restored the status quo existing just prior to the filing of the suit.

Mr. Narayana relies upon a decision reported in Dalpat Kumar and Another Vs. Prahlad Singh and Others, in support of his contention that where it is possible to compensate the injury in terms of money injunction cannot be granted. In that case it is pointed out, "The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility or repairing the injury, but means only that the injury must be a material (sic) namely one that cannot be adequately compensated by way of damages.. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischeif or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit". Therefore, no hard and fast rule can be laid down that in all cases where the injury can be compensated in terms of money no injunction can be granted. It all depends upon the facts of each case and balance of convenience in that case. The learned counsel for the respondents has pointed out that the plaintiffs are agriculturists solely depending upon the income from the lands for their maintenance and if they do not get water for irrigating their lands, they will not be in a position to raise any crops to eke out their livelihood and to expect them to survive till the disposal of the suit and also the appeal would be causing grave hardship which cannot be compensated by way of damages apart from the damages that can be given for the loss of crop. The trial Court as well as the appellate court have considered the balance of convenience also and held that the plaintiffs are entitled to the temporary mandatory injunction.

Therefore, I do not find any grounds to interfere with the orders of the courts below in granting the temporary mandatory injunction. The revision is dismissed. No costs. The trial court is directed to expedite the trial of the suit.