Case Note & Summary
The petitioners, original defendants in a suit for permanent injunction, challenged the order of the District Judge setting aside the temporary injunction granted by the trial court. The suit was filed by the respondents (original plaintiffs) seeking to restrain the petitioners from obstructing or encroaching upon suit land Gat No.437. The trial court had granted temporary injunction in favour of the petitioners based on their counterclaim, finding that they were in possession. The District Judge reversed this, holding that the trial court's finding was perverse because the plaint did not disclose how the plaintiff came into possession, and the mutation entry was in the plaintiff's name. The High Court upheld the appellate order, noting that the petitioners failed to establish a prima facie case, balance of convenience, or irreparable loss. The petition was dismissed.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - The trial court's finding that the petitioners were in possession based solely on mutation entry was perverse as the plaint was silent on how the plaintiff came into possession and the mutation entry was in favour of the plaintiff. The appellate court correctly held that the petitioners failed to establish prima facie case for injunction. (Paras 4-6)
B) Civil Procedure - Temporary Injunction - Balance of Convenience - Since the plaintiff's name was recorded in revenue records and the petitioners' claim of possession was not supported by evidence, the balance of convenience was in favour of the plaintiff. (Para 6)
C) Civil Procedure - Temporary Injunction - Irreparable Loss - The petitioners failed to show any irreparable loss as the plaintiff was in possession and the petitioners could be compensated by damages. (Para 6)
Issue of Consideration
Whether the learned District Judge was justified in setting aside the temporary injunction granted by the trial court in favour of the petitioners/original defendants.
Final Decision
The High Court dismissed the writ petition, upholding the order of the District Judge setting aside the temporary injunction. The rule was discharged with no order as to costs.
Law Points
- Temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- mutation entry not conclusive proof of possession
- perverse finding
- appellate court's power to reverse
Case Details
2011 LawText (BOM) (11) 78
WRIT PETITION NO. 4586 OF 2011
Mr. Prabhakar Jadhav for the Petitioners, Mr. Vinod Y Jadhav for the Defendant Nos.1 to 4 and 6
Gorakh Mahadev Survase and others
Narayan Balu Dhombe (since deceased) through legal heirs and others
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Nature of Litigation
Civil writ petition challenging appellate order setting aside temporary injunction in a suit for permanent injunction.
Remedy Sought
Petitioners sought to quash the order of the District Judge dated 23/2/2011 which set aside the temporary injunction granted by the trial court.
Filing Reason
The petitioners claimed that the appellate court erred in reversing the trial court's order granting temporary injunction in their favour.
Previous Decisions
Trial court (3rd Joint Civil Judge, Junior Division, Malshiras) granted temporary injunction to petitioners on 18/1/2010 in Regular Civil Suit No.549 of 2008. District Judge-1, Malshiras allowed Misc. Civil Appeal No.5 of 2010 on 23/2/2011, setting aside the trial court's order.
Issues
Whether the trial court's finding that the petitioners were in possession was perverse?
Whether the appellate court was justified in reversing the temporary injunction?
Submissions/Arguments
Petitioners argued that they were in continuous occupation and possession of the suit land and that the mutation entry in plaintiff's name was obtained by fraud.
Respondents contended that the plaint was silent on how the plaintiff came into possession and that the mutation entry was in their favour, thus they had a better title.
Ratio Decidendi
The trial court's finding of possession based solely on mutation entry was perverse as the plaint did not disclose how the plaintiff came into possession. The appellate court correctly held that the petitioners failed to establish a prima facie case for temporary injunction.
Judgment Excerpts
The trial court's finding that the petitioners were in possession was based on the mutation entry which was in favour of the plaintiff. The plaint was conspicuously silent as to how the plaintiff came into possession. Therefore, the finding of the trial court was perverse.
The appellate court was justified in reversing the order as the petitioners failed to establish a prima facie case, balance of convenience, or irreparable loss.
Procedural History
Respondents filed Regular Civil Suit No.549 of 2008 for permanent injunction. Trial court granted temporary injunction to petitioners on 18/1/2010. Respondents filed Misc. Civil Appeal No.5 of 2010, which was allowed by District Judge on 23/2/2011, setting aside the injunction. Petitioners filed the present writ petition on 22/11/2011.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
