GHANASHYAM DAS Vs. MURALIDHAR
LAWS(ORI)-1978-8-15
HIGH COURT OF ORISSA
Decided on August 16,1978

GHANASHYAM DAS Appellant
VERSUS
MURALIDHAR Respondents

JUDGEMENT

- (1.) Defendants Nos. 1, 15 and 16 are the appellants here against an order under O.39, R.1. C.P.C. Respondent No. 4 filed a suit for declaration of title, confirmation of possession, in the alternative for recovery of possession and also alternatively for partition and allotment of 'A' schedule property. Defendants 1 to 3 are the sons of one Mansaram, since deceased. Plaintiff claims as the widow of said Mansaram and her claim is based on a deed of gift and a will executed by Mansaram in her favour. After filing of the suit, plaintiff prayed for injunction restraining defendant No. 3 from collecting rent from the persons who have stacked logs of wood at Mangalabag, Cuttack. It is stated that all the defendants except defendant No. 3 have stacked wood on the land at Mangalaba which is a part of the suit property and defendant No. 3 has been collecting rent from them. She prayed that defendant No. 3 should be restrained from collecting rent from those persons. The trial Court passed order under O.39, R.1, C.P.C. restraining defendant No. 3 from collecting any rent from other defendants. Thereafter, another petition was filed by the plaintiff in Court for directing those other defendants to deposit the rent in Court. The learned trial Court has passed order directing those defendants to deposit the rent in Court. The present appeal is directed against this order. Defendant No. 3 who has been restrained from collecting any rent from other defendants does not dispute the order. But out of the other five defendants, three have come up in appeal. Defendant No. 1 is one of the sons of late Mansaram and he is also an appellant. here.
(2.) The learned Court below has found a prima facie case in favour of the plaintiff on the basis of a registered deed of gift executed by Mansaram in her favour. He has held that though defendant No. 3 denies to have made any collection of rent from other defendants, those defendants do not say that they have got licence either from defendant No. 3 or from the plaintiff. If the collections are made from various tenants by defendant No. 3, it would cause prejudice to the plaintiff, and, as such, the balance of convenience is in favour of the plaintiff and the plaintiff would sustain irreparable loss.
(3.) It is well settled that the following propositions are to be established in order to invoke the jurisdiction of the Court to get the interlocutory order of injunction under Order 39, Rr.1 and 2, C.P.C. : (1) Plaintiff has to establish a prima facie case; (2) If balance of convenience is in favour of the plaintiff; and (3) Plaintiff will suffer irreparable in jury if injunction is refused. In considering the question of irreparable injury, the Court has to see that the plaintiff will sustain such injury which cannot possibly and adequately he remedied by way of damages and the damages would be inadequate in ease of success of the plaintiff. In considering the question of balance of convenience, the Court has to consider the comparative mischief or inconvenience of both parties.;


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