- (1.) N. L. Ganguly, J. This First Appeal From Order is directed against the order, dated 20-4-1995 passed by the Civil Judge, Deoria refusing to grant injunction claimed under Order XXXIX, Rule 1, C. P. C. The plaintiff had claimed an injunction that the defendant be restrained from interferring with the possession over the house Nos. 463 and 463/1 Ward 7, Deoria and also not to transfer the property and maintain the house in the same condition and maintain status quo.
(2.) THE plaintiff pleaded that the defendant-plaintiff are real brothers, the property in dispute is ancestral THE parties are entitled to half share each, after the death of their father. THE plaintiff pleaded that the defendant got his name illegally mutated in his favour and the plaintiff has no knowledge about it. THE allegation is that the defendant is trying to usurp the entire ancestral property for himself. The defendant contested the injunction application pleaded that there have been a partition between the parties and some property had already been partitioned separately, some of the properties have been left joint between the two brothers. The court below, while considering the application for injunction, considered the scanty evidence adduced by the parties and arrived at a conclusion that the plaintiff has tailed to prove the prima facie case of possession and also failed to prove the balance of convenience in his favour and if injunction is not issued, irreparable loss would be caused to the plaintiff. After these findings, the application for injunction was refused. The learned counsel for the appellant Sri Swaraj Prakash, vehemently argued that at this stage, it would not bo required for the court below to enter into more detailed evidence but should have passed an order maintainging status quo and since such an order has not not been passed, the court below has committed a manifest error of law in refusing to grant injunction. The learned counsel for the appellant cited AIR 1993 SG 216 - Dalpat Kumar v. Prahlad Singh. The learned counsel placed emphasise over paragraph 5 and submitted that prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima fade 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
(3.) 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, how ever, 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. Lastly, the Apex Court while considering the question of the balance of convenience observed:- "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 other side if the injunction is granted. If on weighing competing pos sibilities or probabilities or 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, Thus, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit. " The learned counsel has not appreciated the observations given by the Hon'ble Supreme Court in the said case where the Hon'ble Supreme Court itself observed that after quoting the facts of the said case where the vendee had entered into agreement to purchase a house, getting the sale deed;