Case Note & Summary
The appeal arose from an order of the Civil Judge, Senior Division, Mapusa, dismissing an application for temporary injunction in a suit concerning a neon sign board. The appellant, an advertising company, had entered into an agreement with the respondent, a property owner, on 12th November 1998, to erect and display a neon sign on her property for five years, ending 31st December 2003, at an annual advance rent of Rs. 12,000. After expiry, the appellant sought renewal for a further five years at a 10% increase, but the respondent refused by letter dated 17th January 2004 and called upon the appellant to remove the board within seven days. The appellant filed a suit for injunction to restrain the respondent from acting on that notice and for mandatory injunction to allow reinstallation of a generator and diesel tank that were allegedly forcibly removed on 28th January 2004. A temporary injunction application was made, and initially, a status quo order was passed until May 2004. The trial court dismissed the temporary injunction application on 31st July 2004. On appeal, the High Court examined the agreement, which contained handwritten alterations. The respondent had added the words “at my discretion” to the renewal clause, while the appellant had added and then struck out “mutual consent”. The court observed that the respondent’s initials appeared only once on the lines where alterations were made, suggesting she had substituted the typed portion with her handwritten words and had not cancelled the latter; therefore, the appellant’s deletion of “my discretion” was suspect. This undermined the appellant’s claim of automatic renewal. The respondent also denied that the appellant had invested Rs. 12,00,000 in the sign board, asserting that it belonged to United Breweries Ltd. The court held that this factual dispute was a matter for trial. Crucially, the appellant had not used the sign board since January 2004, and by the date of the appeal in June 2005, over a year had passed without any use. The court found that this non-use indicated no urgency or irreparable injury, and thus no case for temporary injunction was made out. The appeal was accordingly dismissed.
Headnote
A) Civil Procedure - Temporary Injunction - Disputed Agreement and Prima Facie Case - Code of Civil Procedure, 1908 - The plaintiff sought injunction based on an agreement with a handwritten renewal clause. The defendant had added 'at my discretion' and the plaintiff attempted to strike it out. The court found that the defendant's initialling suggested she had substituted the typed clause with her handwritten words, and the plaintiff's deletion of those words without her initials rendered the clause ambiguous. Therefore, the plaintiff failed to show a clear prima facie case for automatic renewal. Held that the trial court's dismissal of temporary injunction was not erroneous. (Paras 3-4) B) Civil Procedure - Temporary Injunction - Non-use of Property and Balance of Convenience - Code of Civil Procedure, 1908 - The plaintiff had not used the neon sign board since January 2004, and at the time of the appeal in June 2005, the non-use had been for over a year. This indicated no irreparable injury and tipped the balance of convenience against granting interim relief. The dispute over ownership of the sign board was a triable issue to be decided at trial. Held that there was no question of granting temporary injunction. (Para 5)
Issue of Consideration
Whether the trial court was justified in dismissing the application for temporary injunction given the disputed renewal clause and the fact that plaintiffs had not used the sign board.
Final Decision
Appeal from order dismissed. The court found no error in the trial court's order refusing temporary injunction. The disputed alterations raised doubts about the renewal clause, and the plaintiff's non-use of the board since January 2004 indicated no urgency for interim relief.
Law Points
- temporary injunction
- balance of convenience
- prima facie case
- alteration of agreement
- use
- possession
