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2014 DIGILAW 221 (HP)

Sagar Chand Nayyar v. Manuj Nayyar

2014-03-20

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Mansoor Ahmad Mir, A.C.J. (Oral) This appeal is directed against the order dated 23rd November, 2012, passed by the learned Single Judge in a Miscellaneous Application being OMP No. 423 of 2011, in Civil Suit No. 82 of 2011, titled Manuj Nayyar and others versus Sagar Chand Nayyar and others, whereby and whereunder, application for the grant of interim injunction was allowed, for short “impugned order.” 2.Flashback of the case is; that the plaintiffs/respondents filed civil suit for grant of decree of partition, declaration, permanent injunction and rendition of accounts etc., on the grounds taken in the memo of plaint. Alongwith the suit, plaintiffs/respondents moved application in terms of Order 39 Rules 1 and 2 of the Code of Civil Procedure, for short “the Code” for the grant of ad-interim relief, came up for consideration alongwith civil suit on 11.11.2011, and vide order dated 11.11.2011, the learned Single Judge directed the parties to maintain status quo qua nature, possession and title of the disputed property, till further orders. 3. Defendants/appellants appeared and resisted the suit by filing written statements. 4. The record of civil suit does show that the plaintiffs later amended the plaint and, after granting many adjournments to the defendants for filing written statements to the amended plaint, the suit ultimately came up for consideration on 23.11.2012, along with OMP No. 423 of 2011 for grant of interim injunction and OMP No. 494 of 2012, requiring defendants to produce original documents. OMP No. 494 of 2012 was adjourned for filing reply by defendants No. 1 to 3 and civil suit was posted for 10.12.201 2, for filing written statements to the amended plaint on behalf of defendants No. 5 to 16. OMP No.423 of 2011 for the grant of interim injunction was allowed and order dated 11.11.2011 was made absolute during the pendency of the suit, which is impugned in this appeal. 5. Heard learned counsel for the parties. 6.The learned Single Judge while passing order impugned, has not at all discussed the pleadings and what reliefs were sought by the plaintiffs/respondents. The learned Single Judge has not even discussed what was the case of the plaintiffs/respondents and what was the defence taken by the defendants/appellants in their written statements. 5. Heard learned counsel for the parties. 6.The learned Single Judge while passing order impugned, has not at all discussed the pleadings and what reliefs were sought by the plaintiffs/respondents. The learned Single Judge has not even discussed what was the case of the plaintiffs/respondents and what was the defence taken by the defendants/appellants in their written statements. While going through the provisions of Order 39 Rules 1 and 2 of the Code, plaintiff has to satisfy that he has prima facie case, balance of convenience lies in his favour and, in case ad-interim relief is not granted, he will suffer irreparable loss and injuries. The apex Court in series of judgments has discussed all the three principles, some of those are: Kashi Nath Samsthan and another versus Shrimad Sudhindra Thirtha Swamy and another, reported in (2010) 1 SCC 689 and Mohd. Mehtab Khan and others versus Khushnuma Ibrahim Khan and others, reported in (2013) 9 SCC 221 . However, the apex Court in a latest judgment titled Makers Development Services Private Ltd. versus M. Visvesvaraya Industrial Research and Development Centre, reported in (2012) 1 SCC 735 has held that in addition to three principles, the Court has also to take into consideration the conduct of the parties. It is apt to reproduce para 11 of the judgment herein: “11.It is settled law that while passing an interim order of injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, the Court is required to consider three basic principles, namely, a) prima facie case, b) balance of convenience and inconvenience and c) irreparable loss and injury. In addition to the above mentioned three basic principles, a court, while granting injunction must also take into consideration the conduct of the parties.” 7.The Apex Court in another case titled Best Sellers Retail (India) Private Ltd. versus Aditya Birla Nuvo Ltd. and others, reported in (2012) 6 SCC 792 , also held that the plaintiff has not only to show prima facie case but has to carve out a case for grant of relief by disclosing and indicating that all the said three principles not only exist but co-exist. It is apt to reproduce paras 29, 30 and 36 of the judgment herein:- “29. It is apt to reproduce paras 29, 30 and 36 of the judgment herein:- “29. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. 30. In Dalpat Kumar v. Prahlad Singh this Court held: (SCC p.721 para 5) “Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages.” 31 to 35 . . 36. To quote the words of Alderson, B. in Attorney-General vs. Hallett [ ER p.1321) “I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the cause.” 8.The bare perusal of the impugned order does reveal that it is not a speaking one and all the laid principles, mentioned above, have not been discussed by the learned Single Judge. 9.At the cost of repetition, as observed supra, even the pleadings of the parties have not been discussed by the learned Single Judge while passing the impugned order which is sine quo non for grant of ad-interim relief in terms of Order 39 Rules 1 and 2 of the Code. Having said so, the impugned order merits to be set aside and the application under Order 39 Rules 1 and 2 of the Code deserves to be remanded to the learned Single Judge for disposal afresh. 10.Accordingly, the appeal is allowed and the impugned order is set aside. Parties are directed to cause appearance before the learned Single Judge on 16th April, 2014. 10.Accordingly, the appeal is allowed and the impugned order is set aside. Parties are directed to cause appearance before the learned Single Judge on 16th April, 2014. 11.The Registry is directed to list the case before the appropriate Bench, having Roster on 16th April, 2014, with request to the learned Single Judge to decide the application under Order 39 Rules 1 and 2 of the Code, within 30 days w.e.f. 16th April, 2014. 12.Accordingly, the appeal stands disposed of along with pending applications, if any.