Uttarakhand High Court
Court Has Restrained Them From Creating vs “4. Order 39 Rule 1(C) Provides That … on 21 August, 2025
2025:UHC:7393
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGE'S ORDERS
No.
and Registrar's
order with
Signatures
A.O. No.289 of 2025
with
A.O. No.290 of 2025
Hon'ble Alok Mahra, J.
Mr. Neeraj Garg, Mr. Rajendra Ara
and Mr. Yashpal Singh, Advocates for the
appellants.
Mr. Vikas Bahuguna, Advocate for
respondent no.1.
2. Heard learned counsel for the
parties.
3. Since common questions of law and
fact are involved in these Appeals,
therefore they were heard together and
are being decided by a common
judgment. However, for the sake of
brevity, facts of Appeal from Order
No.290 of 2025 alone are being
considered and discussed.
4. This is defendants’ Appeal under
Order 43 Rule 1 (r) C.P.C. against the
order dated 24.07.2025 passed by
learned 3rd Additional Civil Judge (Senior
Division), Dehradun in Original Suit
No.49 of 2023, whereby learned trial
Court has restrained them from creating
any third party interest over the suit
property and directed the parties to the
suit to maintain status quo over the suit
property and further directed not to
change the nature of the suit property,
till disposal of the suit.
5. Learned counsel for the appellants
submits that learned trial Court, while
passing the impugned order dated
2025:UHC:7393
24.07.2025, failed to appreciate the
provisions contained under Order 39 Rule
1 & 2 C.P.C., inasmuch as, there is no
finding in the order regarding prima facie
case, balance of convenience and
irreparable injury. In order to buttress
his argument, learned counsel for the
appellants placed reliance upon the
judgment rendered by the Hon’ble Apex
Court in the case of Dalpat Kumar and
another Vs. Prahlad Singh and others,
reported in (1992) 1 SCC 719.
Paragraph nos.4, 5 & 6 of the said
judgment are extracted hereunder:
“4. Order 39 Rule 1(c) provides that temporary injunction may be
granted where, in any suit, it is proved by the affidavit or otherwise,
that the defendant threatens to dispossess the plaintiff or otherwise
cause injury to the plaintiff in relation to any property in dispute in the
suit, the court may by order grant a temporary injunction to restrain
such act or make such other order for the purpose of staying and
preventing … or dispossession of the plaintiff or otherwise causing injury
to the plaintiff in relation to any property in dispute in the suit as the
court thinks fit until the disposal of the suit or until further orders.
Pursuant to the recommendation of the Law Commission clause (c) was
brought on statute by Section 86(i)(b) of the Amending Act 104 of 1976
with effect from February 1, 1977. Earlier thereto there was no express
power except the inherent power under Section 151 CPC to grant ad
interim injunction against dispossession. Rule 1 primarily concerned
with the preservation of the property in dispute till legal rights are
adjudicated. Injunction is a judicial process by which a party is required
to do or to refrain from doing any particular act. It is in the nature of
preventive relief to a litigant to prevent future possible injury. In other
words, the court, on exercise of the power of granting ad interim
injunction, is to preserve the subject matter of the suit in the status quo
for the time being. It is settled law that the grant of injunction is a
discretionary relief. The exercise thereof is subject to the court
satisfying that (1) there is a serious disputed question to be tried in the
suit and that an act, on the facts before the court, there is probability of
his being entitled to the relief asked for by the plaintiff/defendant; (2)
the court’s interference is necessary to protect the party from the
species of injury. In other words, irreparable injury or damage would
ensue before the legal right would be established at trial; and (3) that
the comparative hardship or mischief or inconvenience which is likely to
occur from withholding the injunction will be greater than that would be
likely to arise from granting it.
5. Therefore, the burden is on the plaintiff by evidence aliunde by
affidavit or otherwise that there is “a prima facie case” in his favour
which needs adjudication at the trial. The existence of the prima facie
right and infraction of the enjoyment of his property or the right is a
condition for the grant of temporary injunction. Prima facie case is not
to be confused with prima facie title which has to be established, on
evidence at the trial. Only prima facie case is a substantial question
raised, bona fide, which needs investigation and a decision on merits.
Satisfaction that there is a prima facie case by itself is not sufficient to
grant injunction. The Court further has to satisfy that non-interference
by the Court would result in “irreparable injury” to the party seeking
relief and that there is no other remedy available to the party except
one to grant injunction and he needs protection from the consequences
of apprehended injury or dispossession. Irreparable injury, however,
does not mean that there must be no physical possibility of repairing the
injury, but means only that the injury must be a material one, namely
one that cannot be adequately compensated by way of damages. The
third condition also is that “the balance of convenience” must be in
favour of granting injunction. The Court while granting or refusing to
2025:UHC:7393
grant injunction should exercise sound judicial discretion to find the
amount of substantial mischief or injury which is likely to be caused to
the parties, if the injunction is refused and compare it with that which is
likely to be caused to the other side if the injunction is granted. If on
weighing competing possibilities or probabilities of likelihood of injury
and if the Court considers that pending the suit, the subject matter
should be maintained in status quo, an injunction would be issued. Thus
the Court has to exercise its sound judicial discretion in granting or
refusing the relief of ad interim injunction pending the suit.
6. Undoubtedly, in a suit seeking to set aside the decree, the subject
matter in the earlier suit, though became final, the Court would in an
appropriate case grant ad interim injunction when the party seeks to set
aside the decree on the ground of fraud pleaded in the suit or for want
of jurisdiction in the Court which passed the decree. But the Court
would be circumspect before granting the injunction and look to the
conduct of the party, the probable injuries to either party and whether
the plaintiff could be adequately compensated if injunction is refused.
This case demonstrates (we are not expressing any opinion on the plea
of fraud or their relative merits in the case or the validity of the decree
impugned), suffice to state that the conduct of the respondent militates
against the bona fides. At present there is a sale deed executed by the
Court in favour of the first appellant. If ultimately the respondent
succeeds at the trial, they can be adequately compensated by awarding
damages for use and occupation from the date of dispossession till date
of restitution. Repeatedly the civil court and the High Court refused
injunction pending proceedings. For any acts of damage, if attempted to
be made, to the property, or done, appropriate direction could be taken
in the suit. If any alienation is made it would be subject to doctrine of lis
pendens under Section 52 of the Transfer of Property Act. The High
Court without adverting to any of these material circumstances held that
balance of convenience lies in favour of granting injunction with the
following observations, “keeping in mind the history, various facts which
have been brought to my notice, and looking to the balance of
convenience and irreparable loss, I think it will be in the interests of
justice to allow these appeals and grant temporary injunction that the
appellants may not be dispossessed from the suit property”. The
phrases “prima facie case”, “balance of convenience” and “irreparable
loss” are not rhetoric phrases for incantation, but words of width and
elasticity, to meet myriad situations presented by men’s ingenuity in
given facts and circumstances, but always is hedged with sound
exercise of judicial discretion to meet the ends of justice. The facts are
eloquent and speak for themselves. It is well nigh impossible to find
from facts prima facie case and balance of convenience. The
respondents can be adequately compensated on their success.”
6. Per contra, learned counsel for the
respondent no.1 submits that there is no
infirmity in the order passed by learned
trial Court and the order passed by
learned trial Court is just & proper; that
since there is long-drawn dispute
between the parties and to preserve the
suit property, order under challenge has
been passed and that the rights of the
appellants have not been affected in any
way.
7. As per the dictum of the Hon’ble
Apex Court rendered in the aforesaid
case, before granting interim injunction,
the Court should be satisfied and shall
record its finding regarding prima facie
2025:UHC:7393
case, balance of convenience and
irreparable injury. I have perused the
order under challenge. Perusal of the
same reveals that no finding has been
returned by the learned trial Court while
restraining the appellants from creating
any third party interest over the suit
property and directing the parties to the
suit to maintain status quo over the suit
property and further directing not to
change the nature of the suit property,
during the pendency of the suit.
8. In such view of the matter, the
impugned order dated 24.07.2025
deserves to be set aside.
9. Accordingly, the Appeals from Order
are allowed and the impugned order
dated 24.07.2025 is set aside. Learned
trial Court is requested to decide the
temporary injunction application of the
appellant/defendant no.3 (Paper
No.98C2) and Paper No.76C2 of the
plaintiff/respondent, after affording
opportunity of hearing to all the
concerned parties, within a period of two
weeks’ from the date of production of
certified copy of this order.
(Alok Mahra, J.)
21.08.2025
Arpan
ARPAN Digitally signed by ARPAN JAISWAL
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=eabb68a3895e41937c266c23964c0485365445e3a20dddb7393
JAISWAL
398f9fe45ba3e, postalCode=263001, st=UTTARAKHAND,
serialNumber=060FC17022BEAE3DE215D68D9D454C5109CB987446351
E4DF04AADAA2C2CEA66, cn=ARPAN JAISWAL
Date: 2025.08.21 17:08:16 +05’30’