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2012 DIGILAW 2485 (ALL)

Mohammad Mukhtar Ahmad v. Civil Judge, Room No. 15, DisTrict Sultanpur and Others

2012-10-18

ANIL KUMAR

body2012
Anil Kumar, J.;— Heard Sri J.P. Pandey, learned counsel for petitioner, Sri Nripendra Singh, Advocate holding brief of Sri Manish Kumar, learned counsel for opposite party and perused the record. Facts in brief as submitted by the learned counsel for the petitioner are that for redressal of his grievances, petitioner filed a suit for permanent injunction, pending before O.P. No. 1. In the said suit, an application for grant of interim injunction under Order 39 Rule 1 & 2 CPC before O.P.No. 1 has been moved, on which O.P.No. 1 passed an order dated 24.09.2012 (Annexure No. 2) thereby issuing notice and calling objection from respondents. In view of the said background, the present writ petition filed by petitioner with following main prayer:- "(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite party no. 1 i.e the learned Civil Judge (Senior Division) Room No. 15, District-Sultanpur to decide the application under order 39 rule 1 and 2 of the C.P.C. filed by the petitioner before it along with the suit NO;. 585/2012 (Mohd. Mukhtar Ahmad Vs. Intsland Bank Ltd. and others). (ii) Issue a writ or direction in the nature of mandamus the opposite party Nos. 2 to 4 restraining them from taking any illegal action regarding the taking away the Truck No. U.P. 44/T-3999 of the petitioner forcibly from him, during the pendency of writ petition or pending disposal of suit in question." Thus, the question which immediately arises is that what principles should be followed by the Courts in the matter of grant of an ad-interim injunction. The answer is contained in the decision of the Hon'ble Apex Court in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi, (1993) 3SCC 161, a Bench of three Judges of Apex Court has held that:- "It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course, grant of injunction is within the discretion of the court and such discretion is not to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injection is, thus, to maintain the status quo. The Court grants such relief according to the legal principles- ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and that the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him." In the case of Dalpat Kumar V. Prahlad Singh (1992) 1 SCC 719 a Bench of two Judge of the Apex Court held that the phrases "Prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. In Woodroffe's Law Relating to Injunctions, 2nd revised and enlarged Edn., 1992, at page 56 in para 30.01, it is stated that :- "An injunction will only be granted to prevent the breach of an obligation (that is a duty enforceable by law ) existing in favour of the applicant who must have personal interest in the matter. In the first place, therefore, an interference by injunction is founded on the existence of a legal right, an applicant must be able to show a fair prima facie case in support of the title which he asserts." In The Law Quarterly Review Vol. 109, page 432 ( at p. 446), A.A.S. Zuckerman under the title "Mareva Injunctions and Security for Judgment in a Framework of Interlocutory Remedies" has stated:- "The Court considering an application for an interlocutory injunction has four factors to consider; first, whether the plaintiff would suffer irreparable harm if the injunction is denied; secondly, whether this harm outweighs any irreparable harm that the defendant would suffer from an injunction; thirdly, the parties' relative prospects of success on the merits; fourthly, any public interest involved in the decision. The central objective of interlocutory injunctions should therefore be seen as reducing the risk that rights will be irreparably harmed during the inevitable delay of litigation." For the foregoing reasons, I do not find any illegality or infirmity in the order dated 24.09.2012 passed by O.P.No. 1 thereby calling objection from defendant-respondent prior to granting any injunction order on an application under Order 39 Rule 1 and 2 moved by petitioner-plaintiff. Accordingly, the relief No. 2 as claimed in the present writ petition cannot be granted. However, the writ petition is disposed of with a direction to O.P.No. 1 to make all endevour to dispose of the application under Order 39 Rule 1 and 2 after hearing the parties therein in accordance with law expeditiously. It is clarified that the this Court has not adjudicated the claim of the petitioner on merit _____________