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Gauhati High Court · body

1990 DIGILAW 19 (GAU)

Basudev Biswas and Another v. Amit Kumar Ghosh and Others

1990-01-19

MANISANA

body1990
This civil revision petition arises from an order made by the Assistant District Judge (I) Silchar on 6.11.89 in Misc. Appeal No 16 of 1988 dismissing the appeal from the order dated 29.2.88 passed by the Sadar Munisff (II) Silchar in Misc. Case No 6 of 1988 granting interlocutory prohibitory injunction restraining the petitioners and the proforma respondents from executing and registering of any sale deed in respect of the suit land. 2. Facts-the principal respondents instituted Title Suit No 38 of 1988 in the Court of the Sadar Munsiff (II) Silchar against the petitioner - 1 and proforma respondents claiming, inter alia, a declaration that the agreement to sell the suit land between proforma respondents and the petitioners is null and void, and a permanent injunction restraining the petitioners and the proforma respondents from executing and registering any deed of sale in respect of the portion of the suit land "in possession of the principal respondents. The principal respon­dents instituted the suit on the footing that they and the petitioner-1 have been in possession, of the suit land, each of them having separate possession, but in violation of agreem­ent to sale the suit land between the principal respondents and petitioner -1 on one part and the proforma respondents on the other, the proforma respondents have decided to execute registered deed of sale in favour of the petitioners. 3. While granting or refusing an injunction at the interl­ocutory stage there is always a risk as the Court may make a wrong decision. In a case where an interlocutory injunction has been granted to a party and the party fails to establish his right at the trial, then an injustice has been caused to the party against whom injunction has been granted. There may be a case where interlocutory injunction has been refused to a party who turns out to be successful at the trial. In that case also injustice has been caused to that party. Therefore, there is a risk of creating injustice while granting or refusing an injunction at the interlocutory stage. Bat the Court has to take the risk and it is a matter of degree, namely lesser degree of risk, or greater degree of risk, of injustice. The question how the degree of risk of injustice is to be determined depends upon the variety of factors and it is impossible to lay down any set formula. Bat the Court has to take the risk and it is a matter of degree, namely lesser degree of risk, or greater degree of risk, of injustice. The question how the degree of risk of injustice is to be determined depends upon the variety of factors and it is impossible to lay down any set formula. However, prima facie case, balance of convenience or inconvenience and irreparable loss are only the considerations for granting or refusing injunction, but there are a host of other relevant considerations. 6. Coming to the case on hand, if injunction is refused in respect of the portion of the suit land in possession of the petitioner-1 subject to the result of the suit, no justice would be caused to the principal respondents for the reason that the injunction prayed for in the suit is in respect of the portion of the suit land which is in possession of the principal respondents, and not the land in possession of the petitioner -1. This aspect of the matter has not been considered by the Courts below. The non-consideration has affected the decisions of the Courts below. Therefore, the Courts below have exerc­ised their jurisdictions with material irregularity. 7. In the result, the orders of injunction passed by the Courts below is modified to the extent that the respondents -4 and 5 may execute the registered deed of sale in favour of the petitioners in respect of the land in possession of the petitioner No. 1 subject to the result of the suit. As regards the closing of the path used by the plaintiff-respondents linking latrine and bath room, Mr A. Roy, the learned counsel for the petitioners, undertakes that the petitioners shall not close the path. The trial Court shall dispose of the suit untrammeled by the observations made by me as early as possible. With the said observations and direction, the petition is partly allowed and disposed of. No costs.