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1993 DIGILAW 110 (GAU)

Mukhash Sampradaya v. Birash Ch. Das and others

1993-05-12

J.N.SARMA

body1993
Judgement This revision application arises out of the judgment and order dated 6-1-89 passed by the learned Assistant District Judge, Karimganj in Misc. Appeal No. 20/88 affirming the judgment and order dated 2-3-88 passed by the learned Munsiff No. II, Karimganj in Misc. Case No. 15/88 arising out of T. S. No. 334/87. 2. The case of the plaintiff petitioner was that he was in possession of a room of a building since 1974 and in that particular room they had their belongings and they used to rehearsal etc. in that room. On 29-11-87 the defendants placed fencing around the campus described in schedule of the plaint and also put a lock over the lock of the plaintiff in one room which was in possession of the plaintiff. The plaintiff thus having been dispossessed wrongfully filed the aforesaid title suit that is T.S. No. 334/87 in the Court of Munsiff No. II, Karimganj and along with the plaint he also filed an application for injunction in the mandatory form and also prayed for injunction in the prohibitory form not to change the nature and character of the suit room. The learned Munsiff granted an ad interim injunction in the prohibitory form but subsequently on consideration of the objection and the written statement filed by the defendants vacated this order of injunction. Being aggrieved by this order passed by the learned Munsiff on 2-3-88 the plaintiff filed Misc. Appeal No. 20/88 before the learned Assistant District Judge, Karimganj. The learned Assistant District Judge after hearing, the parties by his order dated 6-1-89 dismissed the appeal. Hence this revision application. 3. The learned Assistant District Judge in dismissing the appeal mainly found that the plaintiff has failed to make out a prima facie case. He also found that the defendants had a better title to the room in question. 4. I have heard Mr. A. Sarma, learned counsel for the petitioner and Mr. G. N. Sahewalla, learned counsel for the opposite parties Nos. 1 and 2. He also found that the defendants had a better title to the room in question. 4. I have heard Mr. A. Sarma, learned counsel for the petitioner and Mr. G. N. Sahewalla, learned counsel for the opposite parties Nos. 1 and 2. The finding of the learned Judge that the plaintiff has failed to make out a prima facie case is absolutely perverse and without jurisdiction inasmuch as the learned Judge acted with material irregularity and illegality in the exercise of jurisdiction in holding that at the time of granting of injunction it is necessary to establish a prima facie case which will entitle to the plaintiff to the relief at the end of the trial the law regarding prima facie case that has been settled by the decision of our High Court as well as the Supreme Court. I may refer to the decision of the Supreme Court reported in (1992) 1 SCC 719 : ( AIR 1993 SC 276 ) (Dalpat Kumar v. Prahlad Singh) wherein in para-5 of the judgment the Supreme Court pointed out inter alia as follows :- "Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits". Applying this test I find that the finding of the learned Assistant District Judge on this point of prima facie case is absolutely perverse and liable to be set aside which I accordingly do. Regarding mandatory injunction to be granted the law has been settled by a recent decision of the Supreme Court reported in AIR 1990 SC 867 (Dorab Cawasji Warden v. Coomi Sorab Warden) wherein the Supreme Court in para. 14 of the judgment has laid down three guidelines - (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. 5. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. 5. I sitting as a revisional Court do not like to enter on this controversy and I remand this matter to the appellate Court to decide the appeal afresh on the basis of the principles and guidelines as indicated in the judgment of the apex Court. Accordingly I allow this revision application and set aside the judgment dated 6-1-89 passed by the learned Assistant District Judge in Misc. Appeal No. 20/88. The parties will appear before the appellate Court on 28-6-93 to receive further orders of the Court regarding further progress of the appeal. The appellate Court will dispose of the appeal within a period of three months from the date of receipt of the records. Records shall be transmitted forthwith to the appellate Court. Status quo in respect of the room as on today shall be maintained. Order accordingly.