KOKJE, J. - (1.) THIS is an application for revision of an Order Under Order 39 Rules 1 & 2 of the Code of Civil Procedure (for short 'the CPC' hereinafter), granted by the trial Court and affirmed by the appellate Court. The claim in the suit is rather unusual. The non-applicant - plaintiff is a telephone subscriber. On a general change of telephone numbers in the locality, his original telephone number 25656 was changed to 529656. According to the plaintiff if the common pattern of change of numbers had been followed he would have got 525656 as the changed number and not 529656. The plaintiff also alleges that he was not given the number 525656 malafidely only to benefit one of the defendants who was given that number. A temporary injunction was claimed directing the Union of India and its Telecommunication Department to allot telephone number 525656 to the plaintiff during the pendency of the suit.
(2.) THE learned counsel for the petitioner submitted that both the lower courts have dealt with the matter as if it was being decided finally and granted the final relief to the plaintiff ignoring the principles on which a temporary mandatory injunction could be granted. According to the learned counsel the claim in suit was based on conjecture and surmises and not on a specific legal right. THE case of the plaintiff was presumptuous and both the lower courts had fallen pray to the baseless hypothesis that the plaintiff had a vested right to allotment of a particular number despite a clear provision in Rule 418 of the Telegraph Rules (for short 'the Rules' hereinafter ). According to the learned counsel there was neither a primafacie case, nor the balance of convenience was in favour of plaintiff and there was no question of irreparable injury being suffered by the plaintiff because of non allotment of a particular number while changing the numbers. On the other hand the contention of the learned counsel for the non-petitioner plaintiff was that the concurrent decision of the Courts could not be interfered with in view of the limited scope of Sec. 115 of the C. P. C. According to him the trial Court had jurisdiction to grant the temporary injunction and the appellate Court had jurisdiction to decide the appeal and therefore this Court cannot interfere with the temporary injunction granted to the plaintiff. Decisions of the Supreme Court in the Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another vs. Ajit Prasad Tarway, Manager, Hindustan Aeronautics Ltd. Balanagar, Hyderabad (1), the Municipal Corporation of Delhi vs. Suresh Chandra Jaipuria and Anr. (2), Engineer-in-Chief Ltd. General, Army Headquarters, New Delhi and Another vs. Asi Reddy and Ors. (3) and National Power Transmission Corporation Ltd. vs. Corporate Executive Association of NTPC (CEAN), New Delhi and Ors (4) as also of this Court in Ramchandra Tanwar vs. M/s. Ram Rakhmal Amichand and Anr. (5) were cited at the Bar but the law on the point being settled there is no need to discuss these cases in detail. I have heard the learned counsel and perused the Orders of the lower Courts. There is considerable force in the contention of the learned counsel for the petitioner that the courts below have dealt with the matter as if the suit itself was being finally disposed of. In paragraphs 8 and 9 of its Order, the appellate Court has almost finally decided that the plaintiff was entitled to telephone number 525656. The appellate court has also observed that while effecting change in telephone numbers only figure 5 was added at the beginning of most of the numbers and therefore, the same thing should have been done while changing the plaintiffs telephone number. There is no foundation for such a sweeping remark and the list of changed numbers does not bear out this. Moreover, t|he appellate Court has found the discriminatory treatment was meted out to the plaintiff without any material. Even according to the appellate Court the plaintiff was not the only person in whose case the number was not changed by adding 5 before the earlier number as it had noted that in most of the cases the pattern was followed meaning thereby that in many cases it was not followed. The appellate Court was not justified in drawing such hasty conclusion at an interim stage of the litigation. Perusal of orders of both the Courts below shows that they have presumed too much in favour of the plaintiff. When there was no right to have a particular telephone number, the only question to be examined at the trial of the suit is about the discriminatory treatment alleged in the matter of allotment of changed telephone number. In the face of Rs. 418 of the Rules, it cannot be said that telephone number once allotted could not be changed or on change of numbers a particular pattern will have to be followed. The only challenge could be and which is in this case is that there was a general pattern followed in the allotment of changed telephone numbers and that has been deviated from mala fide, arbitrarily and discriminatingly depriving the plaintiff of the number which would otherwise have been allotted to him as per normal patter. At an interim stage it cannot be presumed that the action was arbitrary, discriminatory or malafide. This has to be decided after the evidence on merits is recorded in the case at the time of finally deciding the case. There cannot be a presumption that the Public Authorities act malafide or arbitrarily. The presumption has to be otherwise. On the question of balance of convenience also both the Courts below have ignored the fact that in any case the original telephone number was to be changed and whatever inconvenience had to be suffered by the plaintiff on that account had to be suffered by him. It is too much to presume that all those who deal with the plaintiff and would like to telephone him would not take the trouble of enquiring about the changed number but only work on the presumption that they had to add the figure 5 only before the earlier number to get the changed number. After all the earlier number had been in existence since 1991 only and not for decades. How much popular a telephone number could become in three years time? Assuming that the number had received wide publicity and popularity that would have been because of the popularity of the plaintiff and the need of the people for the services rendered by him to them and not because of a particular telephone number. No doubt, change in telephone number causes inconvenience to the subscribers but the same cannot be said about non-allotment of a particular telephone number as the changed number. Just as one changed telephone number has to be communicated to all concerned, another number could be communicated. The entire approach of both the Courts below to the question of balance of convenience also was thus presumptive.
(3.) THE appellate court has not at all addressed itself to the question of any irreparable injury likely to be caused to the plaintiff and the trial court got rid of the point by simply observing that the plaintiff would suffer more irreparable injury than defendant No. 2 as if just like convenience, irreparable injury was also to be compared. THE approach again was totally wrong. The trial Court has granted a mandatory injunction without even discussing as to why it was doing so. Admittedly, number 529656 had been allotted in place of number 25656. There was no basis for granting a mandatory injunction which amounted to grant of the full relief to which the plaintiff would have become entitled after trial in case he succeeded in the suit. Moreover, in case ultimately the suit is dismissed, the numbers would again have to be changed and this would also involve defendant No. 2. In such a case, therefore, status-quo as it stood at the date of filing of the suit had to be maintained till the final disposal of the suit. For the aforesaid reasons, I find that the courts below have committed material irregularity in deciding the application/appeal and the impugned orders deserve to be set aside. The temporary injunction if allowed to stand would occasion a failure of justice as what could be suffered only after loosing in the suit ultimately would have to be suffered by the defendants even before the suit was decided. ;