SHRI KALU HAJI Vs. NABIN CH. BORO AND ORS.
LAWS(GAU)-1985-2-10
HIGH COURT OF GAUHATI
Decided on February 28,1985

Shri Kalu Haji Appellant
VERSUS
Nabin Ch. Boro And Ors. Respondents

JUDGEMENT

K. Lahiri, A.C.J. - (1.)THIS is an application under Section 115 of the Code of Civil Procedure directed against the order dated 19.1.84 passed Mr. M.E. Negi. Assistant District Judge, Sonitpur, Tezpur Misc. Appeal No. 2 of 1983.
(2.)THE Plaintiff -Petitioner instituted Title suit No. 5 of 1984 in the Court of Munsiff at Mangaldoi and prayed for a temporary injunction restraining the Defendants/opposite parties, their agents and employees from dispossessing or otherwise interfering with the possession of the Plaintiff in the suit land. Learned Munsiff issued notice on the Defendants to show cause why the prayer for temporary injunction should not be allowed fixing 21.9.84 for bearing, and, thereafter passed the following order;
Meanwhile, issue an interim injunction against the Defendants restraining them from interfering with the possession of the Plaintiff because delay in issuing notice will defeat the very purpose of granting injunction.

We do not find what impelled the learned Munsiff to grant temporary injunction against the Defendants/opposite parties. It contains no reason or justification for injunction the Defendant. An appeal was taken against the order to the Assistant District Judge who admitted the appeal and passed a cryptic order staying the order of the Munsiff which is extracted hereinbelow:

Pending disposal of this appeal the impugned order is stayed.

It is thus seen that the appellate Court also did not give any season whatsoever why he considered that the injunction issued by the Court should be stayed.

Mr. B.K. Deka, learned Counsel for the Opposite parties as well as Mr. A.H. Saikia, learned Counsel for the Petitioner fairly concede that both the parties orders are bad and they be set aside. Learned Counsel for the parties submit that upon setting aside the impugned order dated 19.1.84 passed by the Assistant District Judge; Sonitpur, Tezpur in Misc. Appeal No. 2/84 and the Order dated 11.1.84 passed by the Munsiff No. 1 at Mangaldoi issuing temporary injunction against the Defendant the matter may be remitted back to the learned Munsiff with a direction to dispose of the application for injunction filed by the Petitioner in accordance with law. I find that the concessions have been made with the best intention, to expedite the trial of the suit and realising that apparently the impugned orders are required to be set aside. I agree with the learned Counsel for both the parties that the impugned orders should be set aside. Accordingly, I set aside the order dated 11.1.84 granting injunction in favour of the Petitioner as well as the appellate order dated 19.1.1984 passed by Mr. M.N. Negi, Assistant District Judge, Sonitpur, Tezpur and direct both the parties to appear before Munsiff No. 1 at Mangaldoi on March 22, 1985 and to take necessary orders from learned Munsiff. Learned Munsiff shall permit the parties to file affidavit and adduce any evidence if so desired, and, upon hearing both the parties learned Munsiff shall dispose of the application under Order 39 of the Code of Civil Procedure in accordance with law.

(3.)BEFORE parting with the record I would observe that granting temporary injunction or making of interlocutory orders restraining the right of a party is a serious business. Temporary injunctions are regulated by Order 39 Rule 1(a), (b) and (c). The conditions precedent for granting temporary injunctions are:
(1) When any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree an injunction may be granted; Similarly, if the Defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, a temporary injunction may be granted. Further, if the Defendant threatens to dispossess the Plaintiff or otherwise cause injury to the Plaintiff in relation to any property in dispute in the suit; the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging alienation, sale, removal or disposition of the property under Order 39 Rule 22 the Court may restrain the Defendant from committing a breach of contract or other injury of any kind, whether compensation in the suit is claimed or not. If the Defendant during the continuance of suit or proceeding tries to take possession of the suit land the court may equally issue notice in exercise of the power under Order 39 of the Code. However, before granting injunction the Court must bear in mind the principles of granting injunction. Although the power is discretionary it must be used judicially and in accordance with well -settled principles. Injunction or interlocutory orders should not be lightly granted. The Court must examine the case and reach the concision that there is a bona fide contention between the parties which, in other words, is described 'prima facie' case. Thereafter, the Court should also consider the balance of inconvenience if the injunction is not issued. In short the Court must be satisfied that (i) the applicant has a prima -facie case to go to trial, (ii) that protection is necessary from that species of injury known as 'irreparable injury' and (iii) that the mis -chief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise from granting it. The principle have set out by this Court time out of number. It is needless to reiterate the same, learned Munsiff issued ad interim injunction without considering the case of the parties, the balance of convenience/inconvenience and/or the question of irreparable injury. In short, there is no reason for injuncting the Defendants. In the result, the impugned orders rendered by the Munsiff cannot be upheld. Similarly, the impugned appellate order is also void of any reason why the order of the Munsiff had to be stayed. I am of the opinion, it is not at all necessary to allow the proceeding to continue before the appellate Court and further delay the proceeding. The proceedings in Misc. Appeal No. 2 of 1983, now pending in the Court of Assistant District Judge, Sonitpur, Tezpur is also quashed as it has become infructuous in view of the present order.

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