JUDGMENT Hon'ble Shri Narayan Shukla,J. Heard Mr.Adarsh Mehrotra, learned counsel for the petitioners, Mr.Ashish Chaturvedi, learned counsel for the opposite party No.3 as well as learned Standing Counsel. 2. Being aggrieved with the order dated 5th of December, 2006, passed by the Civil Judge (Junior Division), Sadar, Faizabad in Regular Suit No.335 of 2006 on the application for temporary injunction as also with the order dated 25th of February, 2010, passed by the Additional District Judge, Faizabad in Misc.Civil Appeal No.80 of 2006, the petitioners have preferred the present writ petition. 3. By means of order dated 5th of December, 2006, the trial court has rejected the petitioners'/plaintiffs' application for temporary injunction on the ground that the Latrine constructed by them is situated at the public passage which is a nazul land by which the public passage has been obstructed, therefore, the same cannot be permitted to remain stand. 4. The learned counsel for the petitioners submits that the courts below have failed to appreciate that the opposite party No.6 is interested to encroach upon that very land, whereas it was constructed by the petitioners and the petitioners also submitted a request to the opposite parties 3 to 5 to declare it free hold land in favour of the petitioners. He further submitted that the opposite parties 3 to 5 have acted upon on the complaint made by the opposite party No.6 in damaging the roof of the Latrine under use and occupation of the petitioners without adopting the procedure as provided under law. He further submits that Amin Commissioner Report dated 13th of September, 2006 reveals that the Latrine does not appear to have been constructed over the public passage. It is stated that the Latrine has been constructed on the vacant land and not on the public passage. They claim the ingredients require for issuing temporary injunction in their favour as prima facie case, balance of convenience is in their favour and if the interim injunction is not granted the petitioners shall suffer irreparable loss. In support of his submission the learned counsel for the petitioners has cited several decisions, which are quoted here-in-below:- (1)Anupam Sahkari Avas Samiti Ltd. Versus Addl.Distt.Judge, Court No.4, Lucknow and another, reported in 2006 (24) LCD 137. (2)Nabekishore Sahu and another versus M/s.East India Arms Co., reported in AIR 1998 Orissa 95. In support of his submission the learned counsel for the petitioners has cited several decisions, which are quoted here-in-below:- (1)Anupam Sahkari Avas Samiti Ltd. Versus Addl.Distt.Judge, Court No.4, Lucknow and another, reported in 2006 (24) LCD 137. (2)Nabekishore Sahu and another versus M/s.East India Arms Co., reported in AIR 1998 Orissa 95. (3)Laxmi and others versus Savanta Bapu Mali, reported in AIR 1986 Bombay 169. (4)M.P.Peter versus State of Kerala and others, reported in 2010 (1) SCC (Cri) 742. (5)Shamsher versus Rustam and others, reported in AIR 1988 Rajasthan 188 (6)Kendriya Karmchari Sahkari Grih Nirman Samiti Ltd. Versus New Okhla Industrial Development Authority, reported in 2009 (27) LCD 185. (7)Col.Anil Kak (Retd.) versus Municipal Corpn.Indore and others, reported in 2005 (12) SCC 734 . (8)Julien Educational Trust versus Sourendra Kumar Roy and others, reported in 2010 (1) SCC 379 . (9)Kashi Math Samsthan and another versus Shrimad Sudhindra Thirtha Swamy and another, reported in 2010 (1) SCC 689 . 5. Relying upon the aforesaid decisions he submits that it is absolutely appropriate to maintain status quo over the land in dispute. In the case of Kashi Math Samsthan and another (Supra) the Hon'ble Supreme Court has discussed the necessary ingredients for grant of interim relief under Order 39 Rule 1 and 2. The relevant paragraph of the judgment 16 is reproduced hereunder:- "16. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see whether the appellant has been able to prove prima facie case to get an order on injunction during the pendency of the two appeals in the High Court." He further submitted that even if the petitioners are treated as trespassers they cannot be thrown out in such a way. 6. On the other hand the learned counsel for the respondents cited the case of Mahadeo Savlaram Shelke and others versus Pune Municipal Corporation and another, reported in 1995 (3) SCC 33 , in which the Hon'ble Supreme Court has discussed the ingredients for passing interim order. The relevant paragraphs 9 and 14 of which are reproduced hereunder:- "9.It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. It is true that the appellants placed reliance in their plaint on resolutions passed by the Municipality on 11.11.1972 and 29.11.1972. A reading of those resolutions would prima facie show that possession would be taken where the acquisition proceedings have become final and land acquisition proceedings would not be pursued where award has not been made as on the date of the resolutions. In this case, since the acquisition proceedings have become final, then necessarily possession has to be taken by the Corporation for the public purpose for which the acquisition was made. In that context the question arises whether the appellants can seek reliance on two resolutions. They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the Corporation from taking possession of the building. The orders of eviction were passed by due process of law and had become final. Thereafter no right was treated in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. There is thus neither balance of convenience nor irreparable injury would be caused to the appellants. 14. It would thus be clear that in a suit for perpetual (sic) injunction, the court should enquire on affidavit evidence and other material placed before the court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage would ensure to the plaintiff. 14. It would thus be clear that in a suit for perpetual (sic) injunction, the court should enquire on affidavit evidence and other material placed before the court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage would ensure to the plaintiff. The court should also find whether the plaintiff could adequately be compensated by damages if injunction is not granted. It is common experience that injunction normally is asked for and granted to prevent the public authorities or the respondents to proceed with execution of or implementing scheme of public utility or granted contracts for execution thereof. Public interest is, therefore, one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction. Wile exercising discretionary power, the court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensured due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining the defendant to proceed with the execution of the work etc. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The pecuniary jurisdiction of the court of first instance should not impede nor be a bar to award damages beyond its pecuniary jurisdiction. In this behalf, the grant or refusal of damages is not founded upon the original cause of action but the consequences of the adjudication by the conduct of the parties, the court gets inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. It is common knowledge that injunction is invariably sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the court of first instance, may be, for diverse reasons. Therefore, the pecuniary jurisdiction is not and should not stand an impediment for the court of first instance in determining damages as part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of court at the behest of the plaintiff." 7. Upon perusal of the Commissioner's report alongwith spot Map prepared by him, I find that the construction of Latrine is situated at the public passage, which has obstructed the public way. The petitioners have failed to establish their ownership over the land in dispute. Only on the basis of possession on the public land they cannot claim prima facie case in their favour. Though they claim that the Latrine is private Latrine, but I find that it has obstructed the way of public at large, therefore, I am of the view that for the public interest an individual has to sacrifice. That being so, I do not find prima facie case in favour of the petitioners nor balance of convenience in their favour because the land in dispute is for use of public. I also do not find any loss to be caused to the petitioners by removing the Latrine, therefore, I do not find error in the orders impugned dated 5th of December, 2006, passed by the Civil Judge (Junior Division), Sadar, Faizabad in Regular Suit No.335 of 2006 as well as order dated 25th of February, 2010, passed by the Additional District Judge, Faizabad in Misc. Civil Appeal No.80 of 2006. 8. In the result the writ petition is dismissed.