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1998 DIGILAW 726 (GUJ)

Bhagvanji Laljibhai Parmar v. District Panchayat

1998-11-20

S.K.KESHOTE

body1998
S. K. KESHOTE, J. ( 1 ) BOTH the Courts below have not found it to be a fit case for grant of interim relief in favour of the plaintiff-petitioner. ( 2 ) ). It is not in dispute that the plaintiff-petitioner has been given appointment only on daily wages and daily wagers have no right to the post and if their services are dispensed with I have my own reservation whether at this stage requirement of giving of notice has to be followed or not but one thing is clear that he has been discharged from service and whether discharge of is legal or not, the matter is pending for adjudication in the suit by the Trial Court after taking evidence of both the parties. ( 3 ) ). Time and again, the Apex Court has given a note of caution to the Courts particularly the High Courts that by way of interim relief, relief which is to be granted by the Court at the final stage of the suit when the plaintiff proves his case, should not be granted. The Apex Court has also observed that ultimately in the case, the Court may grant or may not grant the relief as prayed for in the suit, and as such, if any interim relief is granted which results in granting of the substantial or final relief, the Courts should resist themselves from granting such a relief. In this respect, reference may have to the following decisions of the Apex Court. (i) State of U. P. vs. Vishveshwar, 1995 Supp. (3) SCC 590. (ii) Bank of Maharashtra vs. Race Shipping and Trans Comp. , AIR 1995 SC 1368 . (iii) Commndt. /sec. Govt. Handm Ed. Deptt. vs. Ashok K. Kohli, 1995 Supp. (4) scc 214. ( 4 ) ). There is yet another aspect which has to be taken care of. The matter particularly where the litigant is challenging the order of dismissal, termination or removal from the service, in such case, it is difficult to see that in case the interim relief is not granted the plaintiff will suffer any irreparable injury which cannot be compensated in terms of money. If ultimately he succeed in the suit the Court can pass the decree not only for his reinstatement but also for backwages. If ultimately he succeed in the suit the Court can pass the decree not only for his reinstatement but also for backwages. Contrary to it, if ultimately, the plaintiff fails then though his termination was justified but still because of the Courts order, the employer has to pay salary to him and ordinarily it is very difficult for the Courts to pass order for recovery of that money from the employee, So balance has to be drawn. It is also well settled that while considering the matter for grant of temporary injunction under Order 39 Rule s1 and 2, CPC merely the petitioner has prima-facie case is not sufficient which warrants grant of temporary injunction but in addition to that it has to be established to the satisfaction of the Court that irreparable injury is to be caused in case the injunction is declined and balance of convenience also favours the grant of temporary injunction. Reference in this respect may have to the Division Bench decision of this court in the case of Registrar, Gujarat High Court vs. B. J. Patel, reported in 1997 (2) glr 1660 . So leaving apart whether there is prima-facie case or not, it cannot be said to be a case where declining of injunction will result in causing of any injury to the plaintiff-petitioner, which cannot be compensated in terms of money in case where he succeeds in the suit. ( 5 ) ). I am sitting under Sec. 115, CPC and the interference in the order passed by the court below in the matter of grant of temporary injunction is clearly defined. What is the scope of powers of this Court under Sec. 115, CPC in the matter of grant of temporary injunction it is fruitful to have reference to the two decisions of the Honble Supreme court in the case of DLF Housing Co. vs. Sarup Singh, reported in AIR 1971 SC 2324 and in the case of Hindustan Aeronautics vs. Ajit Prasad, reported in AIR 1973 SC 76 . The grant of temporary injunction under Order 39 Rules 1 and 2, CPC is a discretionary order and the Court may grant of may not grant the same. So it is an order which cannot be claimed as of right. In this case, learned Trial Court has declined to exercise its discretionary power in favour of the plaintiff-petitioner. The grant of temporary injunction under Order 39 Rules 1 and 2, CPC is a discretionary order and the Court may grant of may not grant the same. So it is an order which cannot be claimed as of right. In this case, learned Trial Court has declined to exercise its discretionary power in favour of the plaintiff-petitioner. Learned Trial Court has given a cogent and justified reasons not to exercise the discretionary power in this case. It is true that this discretionary order passed by the Trial Court is made available by the legislature under Order 43 Rule 1, CPC but it is also no more res integra that the Appellate Court while hearing the appeal against the discretion of the Trial Court has very very limited power of judicial review. Reference in this respect may have to the decision of the Apex court in the case of Wander Ltd. vs. Antox India (P) Ltd. , reported in 1990 Supp. SCC 727. Despite of this fact that the first appellate Court has limited power of judicial review in such appeals still it has undertaken good exercise and considered all the aspects projected by the counsel for the petitioner before it and passed a well reasoned order. When both the Courts have declined to grant interim relief to the plaintiff-petitioner, I do not find it to be fit case where this Court should exercise its revisional power under Sec. 115, CPC. ( 6 ) ). In the result, this civil revision application fails and the same is dismissed. .