Uttarakhand High Court
Divisional Manager And Another … vs Sharda Devi Saxena And Another on 31 July, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:6736
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 2404 of 2024
Divisional Manager and Another ...Petitioners
Versus
Sharda Devi Saxena and Another ...Respondents
Advocates : Mr. Ashish Joshi, Advocate for the petitioners.
Mr. M.C. Kandpal, Senior Advocate for respondent No. 1
Mr. Lalit Sharma, Advocate for Nagar Nigam/respondent No. 2
Hon'ble Manoj Kumar Tiwari, J.
1. Petitioners have challenged the order dated
26.04.2022 passed by learned Civil Judge (Senior
Division), Rudrapur, District Udham Singh Nagar in Civil
Suit No. 158 of 2021, whereby Temporary Injunction
Application filed by respondent No. 1, was allowed.
Petitioners have also challenged judgment dated
07.03.2024, rendered by 3rd Additional District Judge,
Rudrapur, District Udham Singh Nagar, in Civil Appeal
No. 19 of 2022, whereby Trial Court’s order was
affirmed.
2. Learned counsel for the petitioners submits that
respondent No. 1 filed a suit for permanent injunction
and declaration, in which Divisional General Manager
and Assistant Divisional Manager, Uttarakhand
Transport Corporation were added as defendant Nos. 1
and 2 and Municipal Corporation, Rudrapur was arrayed
as proforma defendant No. 3. He submits that
respondent No. 1, in her suit, did not claim that she is
owner of the property in question and she simply
stated that she is continuing in possession over the
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land in suit for more than 40 years. He submits that the
land in question is nazul land belonging to State
Government, which was allotted to Uttarakhand
Transport Corporation for construction of Inter State
Bus Terminal (ISBT) vide G.O. dated 04.10.2011;
however, due to temporary injunction granted in favour
of respondent No. 1, construction work of ISBT is
stalled.
3. Learned counsel for the petitioners further submits
that learned Trial Court as well as learned Appellate
Court have not considered whether plaintiff
(respondent No. 1 herein) has been able to make out
any prima facie case and without considering the said
aspect, temporary injunction was granted to her. He
submits that plaintiff could not show any prima facie
case, yet temporary injunction was granted in her
favour. He further submits that learned Courts below
erred in not considering whether temporary injunction
can be granted at the instance of trespasser against the
true owner of a property.
4. The order passed by learned Trial Court reveals
that petitioner mentioned in its objection that the land
in question was nazul land and State Government
allotted the same to Uttarakhand Transport Corporation
for setting up Inter State Bus Terminal, vide G.O. dated
04.10.2011. It further reveals that respondent no. 1 in
her plaint admitted that it is a government land and
Respondent No. 1 claimed that she applied for freehold
right to the State Government, however, she did not
add State of Uttarakhand as defendant in the suit.
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5. Stand taken by Nagar Nigam, Rudrapur is
considered and discussed in para 4 of Trial Court’s
order. Nagar Nigam stated that house of the plaintiff is
standing over nazul land, allotted to Uttarakhand
Transport Corporation; although plaintiff claimed that
she is in possession over the land in question since last
45 years, however, there is no evidence whatsoever to
support that claim; the land which is occupied by
plaintiff is under control of Uttarakhand Transport
Corporation and Nagar Nigam has nothing to do in the
matter, therefore, there is no cause of action available
to plaintiff against Nagar Nigam.
6. Learned counsel for the petitioners submits that
learned Trial Court has not considered relevant aspects
while granting temporary injunction in favour of the
plaintiff (respondent No. 1).
7. He submits that injunction was granted merely
because plaintiff claimed that she is in unauthorised
occupation of the land in question. He submits that
even if that claim is taken on its face value, then also,
the status of the plaintiff would be that of a trespasser
and law is well settled that no injunction can be
granted against the true owner of a property at the
instance of persons in unlawful possession.
8. He submits that in the absence of a strong prima
facie case, order of temporary injunction cannot be
passed; however, learned Trial Court granted
temporary injunction in favour of plaintiff in a
perfunctory manner without considering whether there
is any prima facie case in favour of the plaintiff.
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9. Learned counsel for petitioners placed reliance
upon judgment rendered by Hon’ble Supreme Court in
the case of Mahadeo Savlaram Shelke and others
Vs. Pune Municipal Corporation and Another,
reported in (1995) 3 SCC 33. In para 9 of the said
judgment, Hon’ble Supreme Court has observed that
“It is settled law that no injunction could be granted
against the true owner at the instance of persons in
unlawful possession”. Para 14 and 15 of the said
judgment are reproduced below:
“14. It would thus be clear that in a suit for perpetual (sic)
injunction, the court should enquire on affidavit evidence and
other material placed before the court to find strong prima facie
case and balance of convenience in favour of granting injunction
otherwise irreparable damage or damage would ensue to the
plaintiff. The court should also find whether the plaintiff could
adequately be compensated by damages if injunction is not
granted. It is common experience that injunction normally is
asked for and granted to prevent the public authorities or the
respondents to proceed with execution of or implementing
scheme of public utility or granted contracts for execution
thereof. Public interest is, therefore, one of the material and
relevant considerations in either exercising or refusing to grant
ad interim injunction. While exercising discretionary power, the
court should also adopt the procedure of calling upon the plaintiff
to file a bond to the satisfaction of the court that in the event of
his failing in the suit to obtain the relief asked for in the plaint,
he would adequately compensate the defendant for the loss
ensued due to the order of injunction granted in favour of the
plaintiff. Even otherwise the court while exercising its equity
jurisdiction in granting injunction has also jurisdiction and power
to grant adequate compensation to mitigate the damages caused
to the defendant by grant of injunction restraining the defendant
to proceed with the execution of the work etc. The pecuniary
award of damages is consequential to the adjudication of the
dispute and the result therein is incidental to the determination
of the case by the court. The pecuniary jurisdiction of the court
of first instance should not impede nor be a bar to award
damages beyond its pecuniary jurisdiction. In this behalf, the
grant or refusal of damages is not founded upon the original
cause of action but the consequences of the adjudication by the
conduct of the parties, the court gets inherent jurisdiction in
doing ex debito justitiae mitigating the damage suffered by the
defendant by the act of the court in granting injunction
restraining the defendant from proceeding with the action
complained of in the suit. It is common knowledge that
injunction is invariably sought for in laying the suit in a court of4
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lowest pecuniary jurisdiction even when the claims are much
larger than the pecuniary jurisdiction of the court of first
instance, may be, for diverse reasons. Therefore, the pecuniary
jurisdiction is not and should not stand an impediment for the
court of first instance in determining damages as part of the
adjudication and pass a decree in that behalf without relegating
the parties to a further suit for damages. This procedure would
act as a check on abuse of the process of the court and
adequately compensate the damages or injury suffered by the
defendant by act of court at the behest of the plaintiff.
15. Public purpose of removing traffic congestion was
sought to be served by acquiring the building for widening the
road. By orders of injunction, for 24 years the public purpose
was delayed. As a consequence execution of the project has
been delayed and the costs now stand mounted. The courts in
the cases where injunctions are to be granted should necessarily
consider the effect on public purpose thereof and also suitably
mould the relief. In the event of the plaintiffs losing the suit
ultimately, they should necessarily bear the consequences,
namely, escalation of the cost or the damages the Corporation
suffered on account of injunction issued by the courts. Appellate
court had not adverted to any of the material aspects of the
matter. Therefore, the High Court has rightly, though for
different reasons, dissolved the order of ad interim injunction.
Under these circumstances, in the event of the suit to be
dismissed while disposing of the suit the trial court is directed to
assess the damages and pass a decree for recovering the same
at pro rata against the appellants.”
10. Learned Senior Counsel appearing for respondent
No. 1 supports the order passed by Trial Court and the
Appellate Court and submits that Nagar Nigam,
Rudrapur is the owner of the land and not Uttarakhand
Transport Corporation. He submits that possession of
respondent no. 1 dates back to 1980 and the house
constructed by her is situated in Mohalla Darianagar,
Rudrapur, District Udham Singh Nagar, which is far
away from the land allotted to Uttarakhand Transport
Corporation.
11. Learned Senior Counsel further submits that
respondent no. 1 is having receipts of property tax and
electricity charges for the last several decades which
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prove her claim that her house is standing over the
land in question since 1980. He further submits that
conditional allotment of land was made in favour of
Uttarakhand Transport Corporation vide G.O. dated
04.10.2011; he refers to para 4 of the said G.O. where
it is mentioned that if the land is not utilised for the
purpose it was allotted within three years, then the
allotment shall stand cancelled and land will revert back
to the Housing Department of State Government. Thus
he submits that since the land was allotted in 2011 and
Uttarakhand Transport Corporation has not constructed
ISBT up till now, even after expiry of more than 13
years, therefore, allotment of land made in favour of
Uttarakhand Transport Corporation stood cancelled and
the land is now vested in the State Government.
12. The issues raised by learned Senior Counsel for
respondent No. 1 touch the merits of the suit,
therefore, any observation by this Court on the said
issues would not be warranted at this stage, as the suit
is yet to be decided by Trial Court.
13. Perusal of the order on temporary injunction
passed by Trial Court on 26.04.2022 reveals that
learned Trial Court has considered prima facie case in a
slipshod manner.
14. In the case of Dorab Cawasji Warden v. Coomi
Sorab Warden, reported in (1990) 2 SCC 117,
Hon’ble Supreme Court held as follows:
“16. The relief of interlocutory mandatory injunctions are
thus granted generally to preserve or restore the status
quo of the last non-contested status which preceded the
pending controversy until the final hearing when full relief
may be granted or to compel the undoing of those acts6
2025:UHC:6736
that have been illegally done or the restoration of that
which was wrongfully taken from the party complaining.
But since the granting of such an injunction to a party who
fails or would fail to establish his right at the trial may
cause great injustice or irreparable harm to the party
against whom it was granted or alternatively not granting
of it to a party who succeeds or would succeed may
equally cause great injustice or irreparable harm, courts
have evolved certain guidelines. Generally stated these
guidelines are:
(1) The plaintiff has a strong case for trial. That is,
it shall be of a higher standard than a prima facie
case that is normally required for a prohibitory
injunction.
(2) It is necessary to prevent irreparable or serious
injury which normally cannot be compensated in
terms of money.
(3) The balance of convenience is in favour of the
one seeking such relief.”
15. The expression ‘prima facie case’ was considered
and discussed by Hon’ble Supreme Court in the case of
Dalpat Kumar and another Vs. Prahlad Singh and
others, reported in (1992) 1 SCC 719. Para 5 of the
said judgment is reproduced below:-
“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 grant
injunction should exercise sound judicial discretion to find
the amount of substantial mischief or injury which is likely7
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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.
16. The discussion made by learned Trial Court on
prima facie case thus falls short on what is required by
law. Therefore, the order passed by learned Trial Court
as affirmed by Appellate Court, deserve to be set aside
and are hereby set aside. The matter is remitted back
to learned Trial Court to decide Temporary Injunction
Application, filed by respondent No. 1 afresh, as per
law within three weeks. Till disposal of Temporary
Injunction Application by the Trial Court, status quo,
qua possession over the land in question, as existing
today, shall be maintained.
(Manoj Kumar Tiwari, J.)
31.07.2025
Mahinder/
Digitally signed by MAHINDER SINGH
MAHINDER SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b8c2f031a92d1a18b08923c, postalCode=263001,
st=UTTARAKHAND,
serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35DC4626D305B1BC9EA4BABA43D2B8F,
cn=MAHINDER SINGH
Date: 2025.08.02 14:52:40 +05’30’
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