NATABAR SAMAL Vs. COLLECTOR

JUDGEMENT

(1.) Prayer for interim injunction in terms of Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908 (in short, 'PCC') during pendency of the suit having been rejected by learned Civil Judge (Junior Division), Kendrapara and confirmed in appeal by the learned Addl. District Judge, Kendrapara, plaintiff -petitioner has filed this application for interference.

(2.) A brief reference to the factual aspects is necessary for disposal of the case. Plaintiff -petitioner's case in short is that his father purchased plot No. 262 where plaintiff -petitioner and his family members are staying and also running their business. To the adjacent East of said plot is plot No. 258, which is a Gochar land and to its further East is the suit land bearing plot No. 1712 and to its further East is Cuttack -Chandbali road. Petitioner and his family members are using the suit land as their frontage for approaching the main road. Defandants -opp. parties proposed to construct a rest -shed for passengers on plot No. 258 which was resisted by plaintiff in TS No. 195 of 1993. In that suit, opp. parties were restrained in Misc. Case No. 160 of 1993 under Order 39, Rules 1 and 2, CPC, from making construction over the suit land unless the land is dereserved as per Rule 4 of Orissa Government Land Settlement Rules. Defendants -opp. parties propose to construct a rest -shed on the suit land which is 'Nainjori land' and adjoins the main road. Prayer in the application under Order 39, Rules 1 and 2, CPC in the case at hand is to restrain the opp. parties from proceeding with any construction, because petitioner will suffer irreparable injury as frontage of his house will be obstructed. Prayer was resisted by the opp. parties on the ground that the petitioner has not made out a case for injunction and on consideration of rival submissions, learned Civil Judge and learned Addl. District Judge refused prayer for interim injunction, as indicated above.

(3.) INJUNCTION is an equitable relief and it is trite law that equity acts in personam. Therefore, an injunction is a personal matter. An injunction is a judicial process whereby a person is ordered to be restrained from doing or to do a particular act or thing in a particular manner. The former is called 'the restrictive injunction' and the latter a 'mandatory injunction.' An interlocutory or interim injunction is to preserve matters in situ until the case can be tried. Equitable remedy by way of injunction, whether mandatory or interlocutory in nature, is discretionary and is never granted as a matter of course. Certain guidelines for grant of interlocutory injunction were indicated by Lord Diplock in American Cyanamid Co. v. Ethicon Ltd., (1975) 1 All ER 504. Basic features are that plaintiff must satisfy the Court that there is a serious issue to decide and that if defendants were not restrained and the plaintiff won the action damages at common law would be inadequate compensation for plaintiff's loss. Once satisfied of these matters, the Court will then consider whether balance of convenience lies in favour of granting injunction or not, that is, whether justice would be best served by an order of injunction. Three ingredients to be kept in view by the Court while dealing with prayer for injunction are (a) prima facie case; (b) irreparable loss and (c) balance of convenience. Even if there was a serious question to be tried, the balance of convenience ought to be considered in the matter of grant of injunction. An interim injunction would not be granted unless plaintiff shows that it was more likely than not that he would succeed in obtaining a final injunction at the trial. The governing principle is that the Court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendants continuing to do what was sought to be enjoined between the time of the application and the time of the trial, if damages in the measure at common law would be adequate remedy and the defendant would be is a financial position to pay them, no Interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage. If on the other hand damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the Court should then consider the applicability of the contrary hypothesis. The principal function of an injunction is to furnish preventive relief against irremediable mischief.