High Court · 2025

Mr. Neeraj Garg, Mr. Raj endra Ara and Mr. Yashpal Singh, Advocat es for t he appellant s. Mr. Vikas Bahuguna, Advocat e for respondent no.1.

2. Heard part ies. learned counsel t he involved

3. Since com m on quest ions of law and fact are t hese Appeals, t herefore t hey were heard t oget her and com m on are being decided by a t he sake of j udgm ent . However, brevit y, from Order No.290 of 2025 alone are being considered and discussed. fact s of Appeal is defendant s’ Appeal under 4. This Order 43 Rule 1 ( r) C.P.C. against t he order dat ed 24.07.2025 passed by learned 3 rd Addit ional Civil Judge ( Senior Division) , Dehradun in Original Suit No.49 of 2023, whereby learned t rial Court has rest rained t hem from creat ing any t hird part y int erest over t he suit propert y and direct ed t he part ies t o t he suit t o m aint ain st at us quo over t he suit propert y and t o change t he nat ure of t he suit propert y, t ill disposal of t he suit . furt her direct ed not

5. Learned counsel for t he appellant s subm it s t hat learned t rial Court , while im pugned order dat ed passing t he failed t o appreciat e t he 24.07.2025, provisions cont ained under Order 39 Rule 1 & 2 C.P.C., inasm uch as, t here is no finding in t he order regarding prim a facie case, balance of convenience and irreparable inj ury. I n order t o but t ress his argum ent , learned counsel for t he appellant s placed t he j udgm ent rendered by t he Hon’ble Apex Court in t he case of Dalpat Kum ar and anot her Vs. Prahlad Singh and ot hers, report ed 719. t he said Paragraph nos.4, 5 & 6 of j udgm ent are ext ract ed hereunder: reliance upon 1 SCC ( 1992) “ 4 . Order 39 Rule 1( c) provides t hat t em porary inj unct ion m ay be grant ed where, in any suit , it is proved by t he affidavit or ot herwise, t hat t he defendant t hreat ens t o dispossess t he plaint iff or ot herwise cause inj ury t o t he plaint iff in relat ion t o any propert y in disput e in t he suit , t he court m ay by order grant a t em porary inj unct ion t o rest rain such act or m ake such ot her order for t he purpose of st aying and prevent ing … or dispossession of t he plaint iff or ot herwise causing inj ury t o t he plaint iff in relat ion t o any propert y in disput e in t he suit as t he court t hinks fit unt il t he disposal of t he suit or unt il furt her orders. Pursuant t o t he recom m endation of t he Law Com m ission clause ( c) was brought on st at ut e by Sect ion 86( i) ( b) of t he Am ending Act 104 of 1976 wit h effect from February 1, 1977. Earlier t heret o t here was no express power except t he inherent power under Sect ion 151 CPC t o grant ad int erim inj unct ion against dispossession. Rule 1 prim arily concerned wit h t he preservat ion of t he property in disput e t ill legal right s are adj udicat ed. I nj unct ion is a j udicial process by which a party is required t o do or to refrain from doing any part icular act . I t is in t he nat ure of prevent ive relief t o a lit igant t o prevent fut ure possible inj ury. I n ot her words, t he court , on exercise of t he power of grant ing ad int erim inj unct ion, is t o preserve t he subj ect m at t er of t he suit in t he st at us quo for t he t im e being. I t is set t led law t hat t he grant of inj unct ion is a t he court discret ionary relief. The exercise sat isfying t hat ( 1) t here is a serious disput ed quest ion t o be t ried in t he suit and t hat an act , on t he fact s before t he court , t here is probabilit y of his being ent it led t o t he relief asked for by t he plaint iff/ defendant ; ( 2) t he court 's int erference is necessary t o protect t he part y from t he species of inj ury. I n ot her words, irreparable inj ury or dam age would ensue before t he legal right would be est ablished at t rial; and ( 3) t hat t he com parat ive hardship or m ischief or inconvenience which is likely t o occur from wit hholding t he inj unct ion will be great er t han t hat would be likely t o arise from grant ing it . is subj ect t hereof 5 . Therefore, t he burden is on t he plaint iff by evidence aliunde by affidavit or ot herwise t hat t here is “ a prim a facie case” in his favour which needs adj udicat ion at t he t rial. The exist ence of t he prim a facie right and infract ion of t he enj oym ent of his property or the right is a condit ion for t he grant of t em porary inj unct ion. Prim a facie case is not t o be confused wit h prim a facie t it le which has t o be est ablished, on evidence at t he t rial. Only prim a facie case is a subst ant ial quest ion raised, bona fide, which needs invest igat ion and a decision on m erit s. Sat isfact ion t hat t here is a prim a facie case by it self is not sufficient t o grant inj unct ion. The Court furt her has t o sat isfy t hat non- int erference by t he Court would result in “ irreparable inj ury” t o t he part y seeking relief and t hat t here is no ot her rem edy available t o t he part y except one t o grant inj unct ion and he needs prot ect ion from t he consequences of apprehended inj ury or dispossession. I rreparable inj ury, however, does not m ean t hat t here m ust be no physical possibilit y of repairing t he inj ury, but m eans only t hat t he inj ury m ust be a m at erial one, nam ely one t hat cannot be adequat ely com pensat ed by way of dam ages. The t hird condit ion also is t hat “ t he balance of convenience” m ust be in favour of grant ing inj unct ion. The Court while grant ing or refusing t o grant inj unct ion should exercise sound j udicial discret ion t o find t he am ount of subst ant ial m ischief or inj ury which is likely t o be caused t o t he part ies, if t he inj unct ion is refused and com pare it wit h t hat which is likely t o be caused t o t he other side if t he inj unct ion is grant ed. I f on weighing com pet ing possibilit ies or probabilit ies of likelihood of inj ury and if t he Court considers that pending t he suit , t he subj ect m at t er should be m aint ained in st at us quo, an inj unct ion would be issued. Thus t he Court has t o exercise it s sound j udicial discret ion in grant ing or refusing t he relief of ad int erim inj unct ion pending t he suit . 6 . Undoubt edly, in a suit seeking t o set aside t he decree, t he subj ect m at t er in t he earlier suit , t hough becam e final, t he Court would in an appropriat e case grant ad int erim inj unct ion when t he part y seeks t o set aside t he decree on t he ground of fraud pleaded in t he suit or for want of j urisdict ion in t he Court which passed t he decree. But t he Court would be circum spect before grant ing t he inj unct ion and look t o t he conduct of t he part y, t he probable inj uries t o eit her part y and whet her t he plaint iff could be adequat ely com pensat ed if inj unct ion is refused. This case dem onst rat es ( we are not expressing any opinion on t he plea of fraud or t heir relat ive m erit s in t he case or t he validit y of t he decree im pugned) , suffice t o st at e t hat t he conduct of t he respondent m ilit at es against t he bona fides. At present t here is a sale deed execut ed by t he Court in favour of t he first appellant . I f ult im at ely t he respondent succeeds at t he t rial, t hey can be adequat ely com pensat ed by awarding dam ages for use and occupat ion from t he dat e of dispossession t ill dat e of rest it ut ion. Repeat edly t he civil court and t he High Court refused inj unct ion pending proceedings. For any act s of dam age, if at t em pt ed t o be m ade, t o t he propert y, or done, appropriat e direct ion could be t aken in t he suit . I f any alienat ion is m ade it would be subj ect t o doctrine of lis pendens under Sect ion 52 of t he Transfer of Property Act . The High Court wit hout advert ing t o any of t hese m at erial circum st ances held t hat balance of convenience lies in favour of grant ing inj unct ion wit h t he following observat ions, “ keeping in m ind t he hist ory, various fact s which have been brought t o m y not ice, and looking to t he balance of convenience and irreparable loss, I t hink it will be in t he int erest s of j ust ice t o allow t hese appeals and grant t em porary inj unct ion t hat t he appellant s m ay not be dispossessed from t he suit propert y” . The phrases “ prim a facie case” , “ balance of convenience” and “ irreparable loss” are not rhetoric phrases for incant at ion, but words of widt h and elast icit y, t o m eet m yriad sit uat ions present ed by m en's ingenuit y in is hedged wit h sound exercise of j udicial discret ion t o m eet t he ends of j ust ice. The fact s are eloquent and speak for t hem selves. I t is well nigh im possible to find facie case and balance of convenience. The respondent s can be adequat ely com pensat ed on t heir success.” fact s and circum st ances, but always fact s prim a

6. Per cont ra, learned counsel for t he respondent no.1 subm it s t hat t here is no infirm it y in t he order passed by learned t he order passed by t rial Court and learned t rial Court is j ust & proper; t hat disput e bet ween t he part ies and t o preserve t he suit propert y, order under challenge has been passed and t hat t he right s of t he appellant s have not been affect ed in any way. long- drawn t here

7. As per t he dict um of t he Hon’ble Apex Court rendered in t he aforesaid case, before grant ing int erim inj unct ion, t he Court should be sat isfied and shall record it s finding regarding prim a facie convenience and case, balance of irreparable inj ury. I have perused t he order under challenge. Perusal of t he sam e reveals t hat no finding has been ret urned by t he learned t rial Court while rest raining t he appellant s from creat ing any t hird part y int erest over t he suit propert y and direct ing t he part ies t o t he suit t o m aint ain st at us quo over t he suit t o propert y and change t he nat ure of t he suit propert y, during t he pendency of t he suit . furt her direct ing not I n such view of t he m at t er, t he 24.07.2025 dat ed

8. im pugned deserves t o be set aside.

9. Accordingly, t he Appeals from Order im pugned order t he are allowed and dat ed 24.07.2025 is set aside. Learned t rial Court is request ed t o decide t he t em porary inj unct ion applicat ion of t he ( Paper appellant / defendant No.98C2) and Paper No.76C2 of t he affording plaint iff/ respondent , opport unit y of hearing t he concerned part ies, wit hin a period of t wo weeks’ from t he dat e of product ion of cert ified copy of t his order. t o all aft er no.3 ( A l o k M a h r a , J.)

21.08.2025 Arpan ARPAN JAISWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eabb68a3895e41937c266c23964c0485365445e3a20dddb7393 398f9fe45ba3e, postalCode=263001, st=UTTARAKHAND, serialNumber=060FC17022BEAE3DE215D68D9D454C5109CB987446351 E4DF04AADAA2C2CEA66, cn=ARPAN JAISWAL