K.S.LODHA, J. - (1.) THIS is a plaintiffs civil revision and arises under the following circumstances, - -The plaintiffs Manmal and others filed a suit for a permanent injunction against the defendant Bherukhan asking for a permanent injunction restraining the defendant from constructing a cinema house in Vyasji -ka -Nohra, Chopasani Road, Jodhpur and for a declaration that the no objection certificate granted to him in this respect was invalid and was liable to be cancelled. Along with the plaint, they also applied for a temporary injunction. The case of the plaintiffs was that the no objection certificate which was granted to the defendant was in contravention of the rules under the Rajasthan Cinemas Regulation Act (hereinafter called 'the Act.') in as much as the proposed cinema was within 200 meters of the Ummed Hospital which has a large indoor patient ward and two educational institutions, namely,. Tilak Bal Vidyalaya and the Children's Happy School were also within a distance of 200 meters from the proposed cinema house, ft was also their case that this cinema was being constructed in a residential locality, that there were already five cinema house in existence and the addition of one cinema more in that locality would create nuisance; that the area over which the cinema house is to be constructed is also less than the prescribed area; that the land on which the cinema house is being constructed does not belong to the defendant; that the construction of the cinema house will create problems of traffic and shall also vitiate the locality. The bouses in the surrounding area would be deprived of their air and light on account of the height of the cinema house and that it was also not specified as to what type of machinery etc. would be installed in the cinema house. In these circumstances, the construction of the cinema house should be restrained. The defendant contested the application and traversed almost all these grounds. After considering the material on record consisting of the affidavits of the parties as also other material, the learned trial court granted temporary injunction in favour of the plaintiffs on the main ground that the proposed cinema house was within a distance of 200 meters from Ummed Hospital and also the educational institutions referred to above. He did not accept the other contentions of the plaintiff. Aggrieved of this order of the learned Munsif dated 8 -11 -82, the defendant went up in appeal and the learned Civil Judge, Jodhpur, by his order dated 4 -6 83, accepted the appeal set aside the order of the learned Munsif dated 8 -11 -82 and vacated the temporary injunction. The plaintiffs have now come up in revision.
(2.) I have heard the learned Counsel for the parties and have gone through the record. A preliminary objection has been raised by the learned Counsel for the non -petitioner that the revision is not maintainable. The order passed by the learned Civil Judge was perfectly within his jurisdiction and does not suffer from any error of jurisdiction. Reliance was placed upon D.L.F. Housing etc. Co. v. Sarupsingh : [1970]2SCR368 , Hindustan Aeronautics v. Ajit Prasad : (1972)ILLJ170SC and a case decided by this Court Gopal lal v. Sheopat Singh, Civil Revision No. 233 of 1983 decided on 21 -7 -83. The learned Counsel for the petitioners, on the other hand, urged that the learned Civil Judge has decided the case by ignoring the relevant rules prevalent at the time of the grant of the no objection certificate and he has also ignored the affidavits of the parties and has based his judgment merely on the site inspection report made by the commissioner appointed by that court and, therefore, he has clearly committed an error of jurisdiction and, therefore, the revision is maintainable. In my opinion, this preliminary objection need not detain me because, as a matter of fact, the main consideration in this revision is about the applicability and complinace of the rules themselves and the court below has given a categorical finding at this stage about the substantial compliance of the Rules, which in my opinion, should not have been given at this stage, as it amounts to prejudging the suit itself, the revision deserves to be heard on merits. The cases relied upon by the learned counsel for the non -petitioner, in these circumstances, are not of much avail.
(3.) NOW , coming to the merits of the revision, it may at once be said that it is by now well settled that for the grant or refusal of a temporary injunction, three conditions, namely, prime facie case, balance of convenience and irreparable injury have to be taken into consideration and for grant of a temporary injunction, all these three conditions, not only one or two, must be in favour of the applicant. So far as the question of prima facie case goes, it, also, is well settled that prima facie case only means that there must be a serious and substantial question for trial at the suit and it does not necessarily mean that the plaintiff must establish, even prima facie, that he is likely to succeed in the suit. With this background, let me consider the' question of prima facie case in this matter.;