(1.)Instant petition filed under Art. 227 of the Constitution of India, lays challenge to judgment dated 23.7.2020 passed by learned Additional District Judge(2) Shimla, District Shimla, HP in Civil Misc. Appeal no. 15-S/14 of 2020, affirming order dated 13.7.2020 passed by learned Senior Civil Judge, Court No. (2), Shimla, District Shimla, H.P. in C.M.A. No. 36/6 of 2020 (Civil Suit No. 65-1 of 2020), whereby an application under Order XXXIX, rules 1 and 2 CPC having been filed by the petitioner/appellant/plaintiff (hereinafter, 'plaintiff'), praying therein to restrain the respondent/defendant (hereinafter, 'defendant') from doing any kind of digging/excavation or construction work of any kind over the suit land, came to be dismissed.
(2.)Briefly stated the facts of the case, as emerge from the record, are that the plaintiff filed a suit for permanent prohibitory injunction, restraining the defendant from raising any kind of construction and changing nature of the suit land, as described in the plaint and also for grant of injunction directing the defendant to remove the construction, if any, found to have been raised by her and to restore the suit land to its original position. Alongwith aforesaid suit, plaintiff also filed an application under Order XXXIX, rules 1 and 2 CPC for restraining the defendant from doing any sort of digging, excavation or construction work over any portion of suit land, directly or indirectly in any manner, personally or through her agents, servants, family members and contractors etc. Learned trial Court, vide order dated 23.7.2020 held that since requisite ingredients for grant of injunction are not existing in favour of the plaintiff, application deserves dismissal. Feeling aggrieved and dissatisfied with aforesaid order refusing restraint order passed by the trial court, plaintiff preferred an appeal under Order XLIII, rule 1(r) CPC before learned Additional District Judge(2), Shimla, District Shimla, Himachal Pradesh, praying therein to set aside the aforesaid order and to restrain the defendant from raising any sort of construction during the pendency of the suit. However, the fact remains that learned appellate court vide judgment dated 23.7.2020, dismissed the appeal, as a consequence of which, order dismissing interim application, came to be affirmed. In the aforesaid background, plaintiff has approached this Court in the instant proceedings.
(3.)Before adverting to the factual matrix of the case vis -vis prayer made in the petition at hand, this Court deems it proper to delve upon the factors and principles to be borne in mind by the court, while considering application seeking injunction order. It is well settled that before grant of injunction, court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is in its favour. Besides above, while granting injunction, if any, court is also required to consider that whether the refusal to grant injunction would cause irreparable loss to such a party. Apart from aforesaid well established parameters/ingredients, conduct of the party seeking injunction is also of utmost importance, as has been held by Hon'ble Apex Court in case M/S Gujarat Bottling Co.Ltd. and Ors. v. The Coca Cola Co. and Ors., 1995 AIR(SC) 2372. In case a party seeking injunction fails to make out any of the three ingredients, it would not be entitled to injunction. Phrases, "prima facie case", "balance of convenience" and "irreparable loss", have been beautifully interpreted/defined by Hon'ble Apex Court in case Mahadeo Savlaram Shelke v. The Puna Municpal Corpn., 1995 2 JT 504 (S.C.) relying upon its earlier judgment in Dalpat Kumar v. Prahlad Singh, 1992 1 SCC 719 has held as under:
"...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. The existence of prima fade right and infraction of the enjoyment of him property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. 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. The balance of convenience must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."