R.A.Sharma - (1.) PETITIONERS filed a suit for permanent injunction, in the court of learned Civil Judge, Nainital, for restraining the defendants (State Government and four others) from interfering with their possession on the land in dispute. In that suit the petitioners also made an application for interim injunction under Order 39 Rule 1 CPC so as to restrain the defendant-respondents from interfering with their possession over the property in dispute, during pendeney of the suit. The case set-up by the petitioners before the court below was that they are in possession of about 400 Acres of land of the Government for the last about eight to ten years and are entitled to continue in possession in view of the policy of the Government of allotting the land to the weaker section of the public. The defendants, while opposing the relief of the plaintiff-petitioners, controverted the allegations made by the petitioners and urged that the petitioners have formed a gang and are trying to usurp the land in dispute which is part of the reserve forest of the Government of U. P. In this connection the defendants have stated that there is vast agricultural land in the name of some of the petitioners in order to demonstrate that the petitioners do not belong to weaker section.
(2.) THE Trial Court by its order dated 30-3-1990 has rejected the application for interim relief of the petitioners on the ground interalia that the petitioners have no prima facie case in as much as the land in dispute is part of the reserve forest of the Government, over which the petitioners cannot lay any claim; that as the injunction can be granted against anybody excepting the true owner, no injunction can be granted at the instance of the petitioners against the Government, who is true owner of the land in dispute, that for obtaining equitable relief of injunction one must come with clean hands and good conduct which the petitioners are lacking- Appeal filed against the aforesaid order, by petitioners, has been dismissed by learned District judge, on 11-4-1990. It is against these two orders that this writ petition has been filed by the petitioners before this Court under Article 226 of the Constitution of India. It is well settled that no interim iniunction under Order 39 CPC can be granted in favour of the plaintiff unless he makes out (i) prima facie case, (ii) balance of convenience and (in) irreparable injury. In this connection reference may be made to a decision of Hon'ble Supreme Court in case of Hazarat Surat Shah Urdu Education Society v. Abdul Saheb. 1988 AWC 1485, where Hon'ble Supreme Court has laid down that, "No temporary injunction should be issued unless the three essential ingradients are made out, namely, (i) prima facie case, (ii) balance of convenience, (iii) irreparable injury, which could not be compensated in terms of money. If a party fails to make out any of the three ingradients he would not be entitled to the injunction and the Court will be justified in declining to issue injunction." In the instant case the trial court, after appreciating the evidence produced by both the parties, has recorded a finding that the plaintiff-petitioners have no prima facie case and this finding has been approved by the learned District Judge in appeal. Position that emerges out is that the petitioners have no prima facie case. One of the three essential ingradients for grant of interim injunction under Order 39 Rule ICPC being absent, the petitioners are not entitled to the interim injunction in as much as if a person fails to make out even one of the three ingradients. he cannot be granted interim injunction. No ground so as to interfere with the aforesaid finding of the courts below, by this court, under Article 226 of the Constitution of India, has been made out. Learned counsel for the petitioners has, however, argued that (i) once appeal is filed he is entitled to interim injunction as matter of course and for this proposition he has placed reliance on a decision of Hon'b e Supreme Court in case of Mool Chand Yadav v. Raza Buland Suga Co. Ltd., Rampur, 1983 AWC 121; (ii) petitioner cannot be evicted from the land in dispute, except in accordance with law, even if their possession is unlawful; (IIi) the land in dispute is not reserve forest land.
(3.) REGARDING the first plea of the learned counsel, it may be mentioned that as observed by the Hon'ble Supreme Court in the case of Hazarat Surat Shah (supra), unless all the three ingradients, namely, prima facie case, balance of convenience and irreparable injury, are established no interim injunction under Order 39 CPC can be granted. The case of Mool Chand (supra) does not lay down anything contra as is clear from its perusal. In that case the appeal was admitted and notice of motion was taken out for suspension of order under appeal. The appeal is only admitted when a good prima facie case is shown and by admission of the appeal prima facie case stands established. The balance of convenience, and irreparable injury were obviously in favour of appellant us the finding recorded was that Sri Mool Chand was in possession of accommodation which is to be vacated by him in pursuance of the order passed by the court below and as such the operation of the order having serious civil consequences require to be stayed by the Appellate Court during pendency of the appeal in as much as, as observed by Hon'ble Supreme Court, "...if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum contiguously taking place during pendency of the appeal." Mool Chand's case does not lay down that if three ingradients, mentioned hereinbefore and which are conditions precedent for issue of interim injunction, are not satisfied even then the court is bound to grant injunction in an appeal. Regarding the second plea of the learned counsel, it may be mentioned that the trial court has observed that no injunction can be issued against the true owner of the property. This view of the trial court, which stands affirmed by Appellate Court, appears to be fully justified. Relief of injunction is equitable relief and the court does not help a person who himself is guilty of doing wrongful things. This Court in Lakhan Lal v. Municipal Board, 1982 UP LB EC 349 has laid down that a plaintiff in unauthorised occupation of a property is not entitled to an order of injunction against Municipal Board so as to restrain it from interfering with his possession. The report further shows that against this judgment a Special Leave Petition was filed before Hon'ble Supreme Court, which was dismissed. The same proposition has been laid down in K.. V. Narayan v. S. Sharana Gowda, AIR 1986 Kart 77. In this case, after considering various authorities and the texts it was laid down that a trespasser in possession is not entitled to temporary injunction as against a true owner. In this connection distinction has to be made between the trespasser whose possession right from the beginning was unlawful and a person who entered into possession lawfully, but latter on on account of subsequent developments, his possession became unlawful. In the latter catagory of cases where the possession was initially valid, but subsequently became unlawul, courts have laid down that possession of such a person, though not "lawful possession" is "judicial possession", and is entitled to be protected by the courts. In this connection reference may be made to a case of M/s. Patil Exhibitors (Pvt.) Ltd. v. Bangalore City Corporation. AIR 1986, Kart. 194. The case of Ram Prasad v. State of U. P., 1988 RD 56 which has been relied upon by the learned counsel for the petitioners, cannot help the petitioners in as much as the land, in that case, was let-out in 1949 by Collector, Allahabad, as Manager of Court of Wards. The position of the petitioners in Ram Prasad's case cannot be said to be that of tank trespasser. In the instant case the petitioners are trespassers and bad no right or title in the land in dispute at my time. The only case set-up by them is that they are in its possession for the last 8 or 10 years and their possession is likely to be regularised in view of policy of the Government for the weaker section. The trial court after noting the case set-up by the parties and after considering evidence produced by both the parties, ha? rightly held that the petitioners have no right to the property in dispute and their possession, if any, is unauthorised, although the plea of possession does not appear to have been actually decided, and the case set-up by the petitioners has been presumed to be correct for deciding the application for interim injunction, seven though the defendants have denied possession of the petitioners and have alleged that under the garb of order of the court the petitioners want to enter into possession of the Government land. As the petitioners nave failed to prove one of the essential ingredients (prima faciei case) they are not entitled to interim injunction, specially in view of the fact that they cannot get injunction against the true owner. In view of the facts and circumstances of the case how and in what manner the petitioners should be evicted from their possession, was not a question to be decided when deciding an application for interim injunction. The question before the courts below was whether the interim injunction under Order 39 Rule I CPC be granted or not, and courts below have rightly held that no case for issue of interim injunction has been made out.;