Law on

INTERIM INJUNCTIONS
S.S. Upadhyay
Former District & Sessions Judge/
Former Addl. Director (Training)
Institute of Judicial Training & Research, UP, Lucknow.
Member, Governing Body,
Chandigarh Judicial Academy, Chandigarh.
Former Legal Advisor to Governor
Raj Bhawan, Uttar Pradesh, Lucknow
Mobile : 9453048988
E-mail : [email protected]
Website: lawhelpline.in

1. “Injunction” meaning of?: ‘Injunction’ means- an order of court to do or not

to do something.

1.1 Laws relating to injunctions are as under:

(i) Sections 36, 37, 38, 39, 40, 41, 42 of the Specific Relief Act, 1963
(ii) Section 94(c) CPC
(iii) Order 39, rules 1, 2, 3, 4 CPC
(iv) Section 151 CPC
(v) Order 43, rule 1(r) CPC (Misc. Appeal)

1.2 Sources of power of court to grant interim injunction: There are two
sources of powers of court to grant interim injunction:
(i) Section 94(c) CPC
(ii) Section 151 CPC

2. Difference between sections, orders and rules of CPC : CPC has been
divided into sections and rules under various orders. Sections create
jurisdiction and power of the court while rules indicate the manner in which
the said jurisdiction and power is to be exercised. Power to grant temporary
injunction u/s 94(c) CPC can be exercised only if the circumstances under
Order 39, Rules 1 & 2 CPC are existing. See : Vareed Jacob vs. Sosamma
Geevarghese, (2004) 6 SCC 378

3. Object of granting interim injunction: The object of the interlocutory

injunction is to protect the plaintiff against injury by violation of his right for
which he could not be adequately compensated in damages recoverable in the
action if the uncertainty were resolved in his favour at the trial. See: Zenit
Mataplast P. Ltd. vs. State of Maharashtra, 2009(6) Supreme 584

3.1 Nature of interim injunction is equitable: A finding on ‘prima facie case’

would be a finding of fact. However, while arriving at such finding of fact,

1
 the court not only must arrive at a conclusion that a case of trial has been
made out but also that other factors requisite for grant of injunction exist.
Under Section 94 CPC r/w Order 39 of the CPC, jurisdiction of the court to
interfere with an order of interlocutory or temporary injunction is purely
equitable and, therefore, the court, on being approached, will, apart from
other considerations, also look to the conduct of the party invoking the
jurisdiction of the court, and may refuse to interfere unless his conduct was
free from blame. Since the relief is wholly equitable in nature, the party
invoking the jurisdiction of the court has to show that he himself was not at
fault and that he himself was not responsible for bringing about the state of
things complained of and that he was not unfair or inequitable in his dealings
with the party against whom he is seeking relief. His conduct should be fair
and honest. These considerations will arise not only in respect of the person
who seeks an order of injunction u/o 39, rules 1 or 2 of the CPC but also in
respect of the party approaching the court for vacating the ad-interim or
temporary injunction order already granted in the pending suit or
proceedings. See :
(i) Neon Laboratories Ltd. vs. Medical Technologies Ltd. (2016) 2 SCC
672(Para 6)
(ii) K.R. Jadeja vs. Maruti Corporation, 2009 (107) RD 265 (SC)
(iii) M. Gurudas vs. Rasaranjan, 2006 (65) ALR 331 (SC)
(iv) Transmission Corp. of A.P. Ltd. vs. Lanco Kondapalli Power (Pvt.)
Ltd., (2006) 1 SCC 540
(v) M/s. Gujarat Bottling Co. Ltd. vs. Coca Cola Company, AIR 1995 SC
2372
(vi) U.P. Avas Evam Vikash Parishad vs. N.V. Rajgopalan Acharya, AIR
1989 All 125 (D.B.)

4. Kinds of injunctions: Injunctions are of following two kinds:

(i) Prohibitory injunction (Sections 36, 37, 38, 41 of the S.R. Act, 1963)
(ii) Mandatory injunction (Section 39 of the S.R. Act, 1963)

4.1 Kinds of injunctions stage-wise: As per Section 37 of the Specific Relief

Act, 1963, according to their stages, injunctions are of following kinds:
(a) Permanent prohibitory injunction: is passed at the end of the trial in the
judgment when the suit is decreed.
(aa) Temporary, interim or ad interim prohibitory injunction: is passed
under Section 94(c) CPC read with Order 39, rules 1, 2, 3 CPC or
under Section 151 CPC at any stage during the pendency of the suit but
before judgment.
(b) Permanent mandatory injunction: is passed only at the end of the trial
in the judgment when the suit is decreed.

2
 (bb) Temporary, interim or ad interim mandatory injunction: is passed
under Section 94(c) CPC read with Order 39, rules 1, 2, 3 CPC or
under Section 151 CPC at any stage of the suit but before judgment.

5. Pre-conditions for grant of injunctions: Before grant of injunction,

following pre-conditions must be fulfilled:
(i) Prima facie case
(ii) Irreparable loss
(iii) Balance of convenience

6.1 Injunction when not to be granted?: Injunction will be refused under the
following circumstances even when all the above three conditions are
fulfilled:
(1) when an equally efficacious or alternative remedy is available in law to
the plaintiff for redressal of his grievances (Section 41(h) of the
S.R.Act,1963)
(2) when the loss to be caused to the plaintiff in the absence of injunction is
ascertained or capable of being ascertained in terms of money and he can
be compensated by way of money.(Clauses (b) and (c) to sub-section (3)
of Section 38 of the S.R.Act,1963). For example: loss or damage to any
movable property like crops, fruits, fish, animal, furniture or any similar
thing but not to any immovable property like land, building or trees
standing on land.
(3) when plaintiff has concealed from court any material fact relating to the
case (Section 41(i) of the S.R.Act,1963).
(4) when plaintiff has tried to mislead the court by playing fraud on it
(Section 41(i) of the S.R.Act,1963).
(5) when plaintiff’s own conduct is responsible for his grievance ((Section
41(i) of the S.R.Act,1963).
(6) when plaintiff seeks to restrain operation of some law or against exercise
of a power conferred on an officer or person by some law
(7) when the suit itself is barred by some law
(8) when the plaintiff seeks an injunction as an interim protection which he
has not asked for as permanent injunction in the plaint
(9) an ad interim or ex-parte injunction against statutory bodies, Government
or government officers, educational institutions and local bodies is
generally not granted without providing them opportunity of objection
and hearing.
(10) when plaintiff seeks injunction to restrain some infrastructure project or
activity related to it. (Section 41(ha) of the S.R.Act,1963)
w.e.f..1.10.2018.

3
 (11) an injunction is generally not granted against construction of public
projects like road, drainage system, building for public office, bridge or
similar other projects of public utility or importance.
(12) a mandatory injunction as an interim protection whether ex-parte or
temporary
(13) an interim injunction which grants the final relief asked for in the plaint
or finally decides the suit.
(14) when grant of injunction is prohibited by some law.

6.2. No injunction if the disputed property is not identifiable: In view of the

provisions of Order 7, rule 3 CPC and Order 20, rule 9 CPC, injunction cannot
be granted if the disputed immovable property is not identifiable. See: Smt.
Phoolmati Devi vs. ManikLal, 2005 (2) AWC 1823 (All) (LB).

6.3. Prohibition of injunction under Order 39, rule (2), sub-rule (2), Proviso
as inserted in Uttar Pradesh w.e.f. 01.01.1977: Under the above amendment
in Order 39 CPC, grant of temporary injunction has been prohibited in the
State of Uttar Pradesh in the following matters:
(a) Where no perpetual injunction could be granted in view of the
provisions of Section 38 and Section 41 of the Specific Relief Act,
1963. or
(b) to stay the operation of an order for transfer, suspension, reduction in
rank, compulsory retirement, dismissal, removal or otherwise
termination of service of, or taking charge from, any employee of the
Government, or
(c) to stay, any disciplinary proceeding pending or intended, or the effect
of any adverse entry, against any employee of the Government, or
(d) omitted by U.P. Act No. 17 of 1991 w.e.f. 15.01.1991,
(e) to restrain any election, or
(f) to restrain, any auction intended to be made, or the effect of any
auction made, by the Government unless adequate security is
furnished, or
(g) to stay the proceedings for the recovery of any dues recoverable as
land revenue unless adequate security is furnished, or
(h) in any matter where a reference can be made to the Chancellor of
University unless any enactment for the time being in force, and any
order for injunction granted in contravention of these provisions shall
be void.

7. Principles Governing Grant of Interim Injunction: Following conditions

must be fulfilled before grant of ad interim injunction under Order 39, rules
1& 2 CPC :

4
 (1) Prima facie case
(2) Balance of convenience
(3) Irreparable loss
(4) Bona fide conduct of the party seeking injunction. See:
(i) Makers Development Services Private Limited vs. M.
Visvesvaraya Industrial Research and Development Center,
(2012)1 SCC 735.
(ii) Moradabad Development Authority vs. Sai Sidhi Developers, AIR
2019 All 196.(Para 25).

7.1 “Prima facie case” not to be confused with “prima facie title”: Prima
facie case is not to be confused with prima facie title which has to be
established on evidence at the trial. Prima facie case is a substantial question
raised bona fide which needs investigation and a decision on merits.
Satisfaction of court that there is a prima facie case by itself is not sufficient
to grant injunction. See: Dalpat Kumar vs. Prahlad Singh, AIR 1993 SC 276.

7.2 Irreparable injury: Prima facie case alone is not sufficient for grant of
injunction. The court has to further satisfy that non-interference by court
would result into irreparable injury to the party seeking relief and that there
is no other remedy available to the party except the one to grant injunction
and he needs protection from the consequences of the 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 material one, namely one that cannot be adequately
compensated by way of damages or money. See: Dalpat Kumar vs. Prahlad
Singh, AIR 1993 SC 276.

7.3 Balance of convenience: The third condition is that the balance of

convenience must be in favour of grant of interim injunction. The court
while granting or refusing to grant injunction should exercise sound judicial
discretion to find the amount of substantial mischief of injury which is likely
to be caused to the parties if the injunction is refused and compare it with that
what 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, the
court considers that pending the suit, the subject matter should be maintained
in status quo, an injunction would be issued. See:
(i) Dalpat Kumar vs. Prahlad Singh, AIR 1993 SC 276
(ii) U.P. Avas Evam Vikash Parishad vs. N.V. Rajgopalan Acharya, AIR
1989 All 125 (DB)
(iii) Maria Margarida Sequeira Fernandes vs. Erasmo Jack De Sequeira,
(2012) 5 SCC 370

5
 Note: It was a suit for specific performance of agreement for sale which was
decreed by the trial court and sale deed was also executed by the executing
court. Thereafter a separate suit to set aside that decree was filed and during
the pendency of the suit, the High Court granted temporary injunction which
was set aside by the Supreme Court by holding that the High Court was not
right in granting the temporary injunction.

7.4 Meaning of “prima facie case”: The principles upon which injunction is
granted is well settled. Party to the litigation who seeks an injunction must
satisfy the court that there is a serious question to be tried at the hearing of
the suit and every probability tilts in his favour for the relief sought for i.e.
prima facie case is in his favour. However, at this juncture, it is made clear
that prima facie case may not be confused in prima facie success but simply
if there is a serious question to be tried, the test of prima facie case is
satisfied and further court interference is necessary without which a right
accrued in favour of the party concerned cannot be protected from species of
injury which is known as irreparable injury and comparative mischief which
is likely to be caused in the absence of the injunction will be greater and not
compensable, thus the balance of convenience also tilts in his favour.
Broadly, these principles apply where injunction is sought by the party. See:
Smt. Shefali Roy vs. Hero Jaswant Dass, AIR 1992 All 254 (DB)

7.5 Party seeking interim injunction in property must show proprietary

interest in subject matter of dispute : Ordinarily, a party seeking interim
injunction under Order 39, rules 1 & 2 CPC must have proprietary interest in
the subject matter of dispute. See : Margaret Almeida vs. Bombay Catholic
Co-operative Society Limited, (2013) 6 SCC 538.

7.6 Mere making out a prima facie case by party not enough for grant of
temporary injunction: Only making out a prima facie case by plaintiff is
not sufficient for grant of injunction. It must be shown that the injury suffered
by the plaintiff in case of refusal of temporary injunction would be
irreparable. See:
(i) Best Sellers Retail India Private Limited vs. Aditya Birla Nuvo
Limited, AIR 2012 SC 2448.
(ii) Moradabad Development Authority vs. Sai Sidhi Developers, AIR
2019 All 196.

7.7 No interim injunction in the absence of prima facie case even if the other
requirements are fulfilled: Interim injunction u/o 39, rules 1 & 2 CPC
cannot be granted when the party is unable to prove prima facie case in his
favour even if such party makes out a case of balance of convenience and

6
 irreparable injury. See: Kashi Math Samsthan vs. Shrimad Sudhindra Thirtha
Swamy, AIR 2010 SC 296.

8. Ex-parte ad interim injunction---when to be granted?: (Section 94 r/w

Order 39, rule 3 CPC): Ex-parte injunction can be granted only under
exceptional circumstances. The Supreme Court has enumerated following
principles and factors which should weigh with the court for grant of ex-parte
injunction:
(1) whether irreparable or serious mischief will ensue to the plaintiff;
(2) whether the refusal of ex-parte injunction would involve greater injustice
than the grant of it would involve;
(3) the court will also consider the time at which the plaintiff first had notice
of the act complained of so that the making of improper order against a
party in his absence is prevented;
(4) the court will consider whether the plaintiff had acquiesced for some
time and in such circumstances it will not grant ex-parte injunction;
(5) the court would expect a party applying for ex-parte injunction to show
utmost good faith in making the application;
(6) even if granted, the ex-parte injunction would be for a limited period of
time;
(7) general principles like prima facie case, balance of convenience and
irreparable loss would also be considered by the court. See:

(i) Bombay Dyeing & Manufacturing Co. Ltd. vs. Bombay

Environmental Action Group, (2005) 5 SCC 61
(ii) Morgan Stanley Mutual Fund vs. Kartickdas, (1994) 4 SCC 225

8.1 Duty of judicial officers while granting ex-parte ad interim injunction

order : In order to grant or refuse injunction, the Judge must carefully
examine the entire pleadings and documents with utmost care and seriousness.
The safe and better course is to give a short notice on the injunction
application and pass an appropriate order after hearing both the sides. In case
of grave urgency, if it becomes imperative to grant an ex-parte ad interim
injunction, it should be granted for a specified period, such as, for two weeks.
In those cases, the plaintiff will have no inherent interest in delaying disposal
of injunction application after obtaining an ex-parte ad interim injunction.
See: Bombay Dyeing & Manufacturing Co. Ltd. vs. Bombay Environmental
Action Group, (2005) 5 SCC 61

9. Effect of non-compliance with the Proviso to Order 39, Rule 3 CPC: Ex-
parte injunction cannot be granted unless Rule 3 of order 39 CPC is complied
with. It is of utmost importance to note that an ex-parte order of injunction is

7
 an exception, the general rule being that order be passed only after hearing
both the parties. It is only in rare cases where the court finds that object of
granting injunction would be defeated by the delay, the court can issue an
injunction ex-parte but that too only after recording reasons therefor. See:
(i) Shiv Kumar Chaddha vs. Municipal Corpn. of Delhi, (1993) 3 SCC 161
(ii) Road Flying Carrier vs. The General Electric Company of India Ltd., AIR
1990 All 134 (D.B.)

9.1 Consequences of non-compliance of Order 39, rule 3 CPC: If a party, in

whose favour an order was passed ex-parte, fails to comply with the duties
which he has to perform as required by the Proviso to Rule 3 of Order 39
CPC, he must take the risk. Non-compliance with such requisites on his part
cannot be allowed to go without any consequence and to enable him to have
only the advantage of it. The consequence of the party (who secured the
order) for not complying with the duties he is required to perform is that he
cannot be allowed to take advantage of such order if the order is not obeyed
by the other party. A disobedient beneficiary of an order cannot be heard to
complain against any disobedience alleged against another party. See:
(i) A. Venkatasubbiah Naidu vs. S. Chellappan, AIR 2000 SC 3032
(ii) Road Flying Carrier vs. The General Electric Company of India Ltd., AIR
1990 All 134 (D.B.)

9.2 Consequences of non-compliance of Order 39, rule 3 CPC: If the ex-parte

ad interim injunction granted by court is subsequently confirmed after
hearing both parties, the question of non-compliance by the plaintiff with the
provisions of Proviso to Rule 3 of Order 39 CPC loses its significance.
Otherwise for non-compliance with the aforesaid provisions, the court may
proceed under Order 39, rule 4 CPC to discharge, vary or set aside the ex-
parte ad interim injunction granted by it. See: U.P. Pasi Jagriti Mandal,
Lucknow vs. Devi Dayal Chauhan, 1997 (1) JCLR 5 (All) (LB).

9.3 Consequences of non-disposal of injunction application on merits within

30 days from the date of grant of ex-parte ad-interim injunction: (Order
39, Rule 3-A CPC has been omitted in the State of U.P. vide Allahabad High
Court’s Notification No. 103/IV-h-360, dated 3.2.1981): When an ex-parte
temporary injunction is granted by a judicial officer u/o 39, rule 3 CPC but he
fails to dispose of the temporary injunction application on merits within 30
days from the date of grant of ex-parte temporary injunction, the aggrieved
party shall be entitled to right of appeal notwithstanding the pendency of the
application for grant or vacation of the temporary injunction, against the
order remaining in force. The appellate court shall, then, be obliged to take
note of the omission of the subordinate court in complying with the

8
 provisions of Order 39, Rule 3-A CPC. In appropriate cases, the appellate
court, apart from granting or vacating or modifying the order of such
injunction, may suggest suitable action against the erring judicial officer,
including recommendation to take steps for making adverse entry in his
ACR. Failure to decide the injunction application or to vacate the ex-parte
temporary injunction shall, for the purpose of the appeal, be deemed to be the
final order passed on the application for temporary injunction on the date of
expiry of 30 days mentioned in Rule 3-A. See: A. Venkatasubbiah Naidu vs.
S. Chellappan, AIR 2000 SC 3032

10. Status quo: legality of such interim injunctions: Issuing direction to

maintain status quo in relation to the disputed property is a well-known
method and the usual order made during the pendency of a dispute for
preserving the property and protecting the interest of the true owner till the
adjudication is made. A change in the existing situation is fraught with the
danger of prejudicing the rights of the true owner, yet to be determined as the
maintenance of status quo during the pendency of the suit is necessary so that
the disputed property can be handed over to its true owner found entitled to it
after decision of the suit. See:
(i) M. Ismail Faruqui vs. Union of India, AIR 1995 SC 605 (Five- Judge
Constitution Bench)—Known as Ram Janma Bhumi and Babri Masjid
dispute at Ayodhya.
(ii) Julien Educational Trust vs. Sourendra Kumar Roy, (2010) 1SCC 379.

10.1 Consent, waiver or acquiescence of parties cannot confer jurisdiction on

court: No amount of consent, waiver or acquiescence can confer jurisdiction
on a court which it inherently lacks or where none exists. See: Vithalbhai (P)
Ltd. vs. Union Bank of India, (2005) 4 SCC 315.

11. Recording of reasons mandatory while granting or refusing injunction:

Recording of reasons for granting or refusing injunction is mandatory. See:
(i) Rayat Shikshan Sanstha vs.Sneel Shiva Gaikwad, (2010)15 SCC 539.
(ii) Moradabad Development Authority vs. Sai Sidhi Developers, AIR 2019
All 196.
(iii) Shiv Kumar Chaddha vs. Municipal Corpn. of Delhi,(1993) 3 SCC 161
(iv) Road Flying Carrier vs. The General Electric Company of India Ltd., AIR
1990 All 134 (D.B.)

12. Merit not to be adjudicated at interim stage : At the interim stage of

proceedings, issues touching upon merits of the case cannot be adjudicated .

9
 See : Prasar Bharti Vs. Board of Control for Cricket in India, (2015) 6 SCC
614.

12.1 Mini trail of suit not permissible u/o 39, rules 1 & 2 CPC : Court should
not proceed for mini- trial of the suit while granting or refusing an
application under Order 39, rules 1 & 2 CPC. See : Amir Alam Khan vs.
Lucknow Development Authority, Lucknow, 2011 (29) LCD 1695 (All)
(DB)(LB)

13. Affidavit sufficient for grant of temporary injunction: For temporary

injunctions under Order 39, rule 1 & 2 CPC, plaintiff can prove the three
ingredients, i.e. (i) Prima facie case, (ii) Balance of convenience and (iii)
irreparable injury on affidavits. The power given to courts to act on affidavits
is not subject to the provisions of Order 19, rules 1 & 2 CPC. See: Satya
Prakash vs. Ist ADJ, Etawah, AIR 2002 All 198.

14. Interim injunction beyond the scope and parties to the suit cannot be
granted: An interim or interlocutory order ought not to be made beyond the
scope of the suit nor against the parties who are not before the court. See:
(i) Ritona Consultancy Pvt. Ltd. vs. Lohia Jute Press, (2001) 3 SCC 68
(ii) Sree Jain Swetambar Terapanthi vs. Phundan Singh, (1999) 2 SCC 377

14.1 Relief not claimed in plaint not to be granted: A relief larger than the one
claimed by plaintiff in the suit cannot be granted by court. It is not open to
the court to grant a relief to the plaintiff on a case for which there is no basis
in the pleadings. See:
(i). M. Siddiq (Ram Janmabhumi Temple Vs. Suresh Das, (2020) 1 SCC 1 at
pages 737 & 738 (Para 1228) ( Five-Judge Bench).
(ii) Meena Chaudhary Vs. Commissioner of Delhi Police, (2015) 2 SCC 156.
(iii) Rajendra Tewary vs. Basudeo Prasad, 2002 (46) ALR 222 (SC)
(iv). Om Prakash Vs. Ram Kumar, (1991) 1 SCC 441 (Para 4).
(v).Srinivas Ram Kumar Vs. Mahabir Prasad, AIR 1951 SC 177 (Three-Judge
Bench)
(vi). Venkataramana Devaru Vs. State of Mysore, AIR 1958 SC 255 ( Five-
Judge Bench) ( Para 14).

14.2 Temporary injunction can be granted only in terms of the permanent

injunction sought in the plaint : An interim relief ( interim injunction) can
be granted only in aid of and as ancillary to the main relief. If the final relief

10
 cannot be granted in the terms sought for, a temporary relief of the same
nature cannot be granted. See: Cotton Corporation of India Ltd. Vs. United
Industrial Bank Ltd., AIR 1983 SC 1272

14.3 Temporary injunction not to be granted beyond the terms of the prayer
for permanent injunction asked for in the plaint: Temporary injunction
u/o 39, rules 1, 2, 3 CPC can be granted in the term of the prayer for
permanent injunction in the suit and not on different terms. If the plaintiff did
not pray for permanent injunction in the plaint, he cannot seek temporary
injunction on the same terms by means of application. See :
(i) Meena Chaudhary Vs. Commissioner of Delhi Police, (2015) 2 SCC 156.
(ii) V.D. Tripathi vs. Vijai Shanker Dwivedi, AIR 1976 All 97

14.4 Interim injunction of a different kind than the one sought in the plaint
cannot be granted: When the suit is for permanent injunction of one kind,
interim injunction of a different kind cannot be granted. See: Zandaram vs.
Prahlad Rao, AIR 1963 Gujarat 160.

14.5 Interim relief not to be granted if final relief in the same terms cannot be
granted: (Sections 38 & 41 of the S.R. Act, 1963 r/w. Or. 39, rule 2, sub-rule
2, U.P. Amendment, proviso, clause (a) CPC): If the relief of permanent
injunction claimed in the plaint is barred by Sec. 38 or 41 of the Specific
Relief Act, 1963, no temporary injunction of the same nature or term can be
granted by the court in view of the bar of law contained under Or. 39, rule 2,
sub-rule 2, U.P. Amendment, proviso, clause (a) CPC. Even by exercising
inherent power of the court u/s 151 CPC, no interim relief or interim
injunction can be granted by court if the final relief in the same terms cannot
be granted. See: Dilip Kumar vs. Spl. Judge, Barabanki, 1992 (10) LCD 13
(All—L.B.)
14.6. Relief claimed in plaint but not discussed in judgment and not grated in
writing must be deemed to have been declined: Relief claimed in plaint but
not discussed in judgment and not grated in writing must be deemed to have
been declined. If a decree is silent as regards any relief claimed by the
plaintiff in the plaint, Explanation V to Section 11 CPC declares that such
relief must be treated as refused. See: Yashwant Sinha Vs. CBI, (2020) 2
SCC 338( Three-Judge Bench).

15. Obtaining injunction by playing fraud or misleading the court (Section 41

(i), S.R. Act, 1963 r/w Order 39, rule 2, sub-rule 2, U.P. Amendment, Proviso,
Clause “a”): Equitable conduct of the party is must for temporary injunction:
Under Order 39 of the CPC, jurisdiction of the Court to interfere with an order
of interlocutory or temporary injunction is purely equitable and, therefore, the

11
 Court, on being approached, will, apart from other considerations, also look to
the conduct of the party invoking the jurisdiction of the Court, and may refuse
to interfere unless his conduct was free from blame. Since the relief is wholly
equitable in nature, the party invoking the jurisdiction of the Court has to
show that he himself was not at fault and that he himself was not responsible
for bringing about the state of things complained of and that he was not unfair
or inequitable in his dealings with the party against whom he was seeking
relief. His conduct should be fair and honest. These considerations will arise
not only in respect of the person who seeks an order of injunction u/o 39, rules
1 or 2 of the CPC, but also in respect of the party approaching the Court for
vacating the ad-interim or temporary injunction order already granted in the
pending suit or proceedings .A person who had kept quiet for a long time and
allowed another to deal with the property exclusively, ordinarily would not be
entitled to an order of injunction. See:
(i) Mandali Ranganna vs. T. Ramchandra,AIR 2008 SC 2291.
(ii) M/s. Gujarat Bottling Co. Ltd. vs. Coca Cola Company, AIR 1995 SC
2372

15.1 Falsehoods etc.: In the case of falsehood and fraud by a party to a litigation,
Court has inherent power to protect itself and further stop the perpetuation of
fraud. Nicety of law and the Court’s reception to it are for those who come
clean. Such parties may seek redressal of their actionable claims and the
academics of legal or statutory interpretations. Parties harbouring falsehoods
and deceit are to be shown the door out of Court. This is for the protection of
the Court. Otherwise, the people will be loosing faith in public justice system
when in the case of fraud the Courts will listen to judicial polemics. Thus,
notwithstanding anything contained in Order 39, rule 2 of the CPC as
applicable in U.P., let no person indulge in falsehood and fraud and then say
that a Court will not protect itself under its inherent powers by passing such
orders as may be deemed necessary. See: Naresh Chandra vs. District
Magistrate, Nainital, AIR 1990 All 188

15.2 Conduct of Plaintiff and Temporary Injunction:Equitable relief of

Injunction cannot be granted to plaintiff guilty of inequitable conduct. Note:
In this case, the plaintiff had abused process of law by instituting different
cases at different fora to evade his eviction under orders from lower court to
High Court and had ultimately filed an injunction suit against his eviction just
to frustrate the eviction decree. See: Kauchusthabam Satyanarayana vs.
Namuduri Atchutramayya, 2005 (2) AWC 1239 (SC).

15.3 In case of fraud, concealment of material facts or misrepresentation etc.,

temporary injunction is to be refused even if all the three ingredients are

12
 fulfilled: No interim injunction can be granted in favour a party concealing
from court some material facts, playing fraud and misrepresentations etc.
even if all the three legally required conditions for grant of interim
injunctions (prima facie case, balance of convenience & irreparable loss) are
fulfilled and if already granted, the same should be vacated by the court. See:
(i) The National Textile Corporation U.P. Ltd. vs. Swadeshi Cotton Mills
Ltd., 1987 ALJ 1266 (All) (D.B.)
(ii) Shivnath vs. District Judge, Nainital, 1991 AWC 30 (All)
(iii) Naresh Chandra vs. D.M., Nainital, AIR 1990 (All) 18

15.4. Complaint u/s 195 (1) (a) (i) CrPC in the event of fraud, concealment of
fact, misrepresentation etc: Furnishing false information with intent to
cause public servant to use his lawful power to the injury of another person
is an offence punishable u/s 182 IPC. Cognizance of such offence can be
taken by court once a proper complaint as per Section 195 (1) (a) (i) CrPC is
filed. Any person who makes attempt to deceive the court interferes with the
administration of justice and can be held guilty of contempt of court. Anyone
who takes recourse to fraud deflects the course of judicial proceedings or if
anything done with oblique motive or any publication with intent to deceive
the court or made with intention to defraud, same is contempt as it would
interfere with the administration of justice. Concealment of material facts is
jugglery, manipulation, manoeuvring or misrepresentation, which has no
place in prerogative jurisdiction. If the applicant does not disclose all material
facts fairly and truly but states them in distorted manner and misleads the
court, then court has inherent power to protect itself and prevent abuse of its
process and refuse further examination of case on merits. If the court does not
reject the petition on that ground, it is failing in its duty. Such application
requires to be dealt with as contempt of court for abusing process of court.
See: ABCD Vs. Union of India, (2020) 2 SCC 52.

15.5. Misleading the court: Where the plaintiff in the suit for injunction against
defendants restraining them from interfering with the construction of wall in
a passage, obtained an ex-parte interim injunction wrongly by misleading the
Court in as much as the sale deed on the basis of which the plaintiff claimed
ownership of the suit property was not placed before the Court and the
defendants were not heard before passing the order of interim injunction, and
after obtaining the order the plaintiff completed the construction of the wall
and then applied for withdrawal of the suit and prayed for dismissal of
injunction application as not pressed, the order passed by Court u/s 151 CPC
for demolition of wall would be justified even if Section 144 CPC is not
applicable, Sec. 151 CPC is there to undo the wrong done by the Court on

13
 being satisfied that the order was passed on being misled by the party. See:
Rakesh Singhal vs. Vth ADJ, Bulandshhar, AIR 1990 All 12

15.6. Delayed request for interim injunction: It will be inequitable conduct on the
part of the party who seeks the relief of interim injunction after much delay
and the grant of the interim injunction would not be proper. Grant of
injunction is an equitable relief. A person who had kept quiet for a long time
and allowed an other person to deal with the property exclusively, ordinarily
would not be entitled to an order of injunction. See:
(i) K.R. Jadeja vs. Maruti Corporation, 2009 (107) RD 265 (SC)
(ii) Sheoraj vs M/s Accord Infrastructure Pvt. Ltd., 2011 (2) ALJ
501(All)(DB)

16. Power of court to grant injunction u/s 151 CPC: Even if in a given case,
circumstances do not fall within the ambit of Order 39 CPC, the courts have
inherent jurisdiction to issue temporary injunction u/s 151 CPC if the court is
of the opinion that interest of justice requires issue of such interim injunction.
Even otherwise also, it is settled law that u/s 151 CPC, the court has got
inherent power to protect the rights of the parties pending the suit. See:
(i) Vareed Jacob vs. Sosamma Geevarghese, (2004) 6 SCC 378
(ii) State of Maharashtra vs. Admane Anita Moti, AIR 1995 SC 350
(iii) Shiv Ram Singh vs. Smt. Mangara, 1988 ALJ 1516 (All)
(iv) Ram Chand & Sons Sugar Mills vs. Kanhyalal Bhargava, AIR 1966 SC
1899
(v) Manohar Lal Chopra vs. Seth Hira Lal, AIR 1962 SC 527
(vi) Rajnibai vs. Kamla Devi, AIR 1996 SC 1946.

16.1 Power of court to grant interim injunction u/s 151 CPC: Once the
legislature prescribes the cases in which an order of temporary injunction is
to be granted and the cases in which such an injunction cannot be granted, the
Court should respect the legislative intent as reflected by the statutory
provisions. The legislative intent may be either express or may be clear by
necessary implication. As long as the intention of the legislature could be
gathered from the provisions and it is clear, inherent power of Section 151
CPC should not be exercised to nullify or stultify such a provision. Grant of
temporary injunction by court in exercise of its inherent powers u/s 151 CPC
is permissible in cases which do not fall under Order 39, rule 1 CPC. See:
Smt. Shakunthalamma & Others Vs. Smt. Kanthamma & Others, AIR 2015
Karnataka 13 (Full Bench).

16.2 Power of court to grant interim injunction u/s 151 CPC: As regards the
exercise of inherent powers of the court u/s 151 CPC for purposes of granting

14
 interim injunction or any other relief, the Supreme Court in the case of State
of U.P. vs. Roshan Singh, 2008 (71) ALR 1 (SC), has ruled as under:
(i) Inherent powers of court u/s 151 CPC are not to be used for the
benefit of a party or litigant who has remedy under CPC similar in the
position vis-à-vis other statute.
(iii) Object of inherent powers u/s 151 CPC is to supplement and not to
replace the remedies provided for in the CPC. Section 151 CPC will
not be available when there is alternative remedy.
(iv) Section 151 CPC cannot be invoked when there is express provision
under which relief can be claimed by the aggrieved party.
(v) Inherent powers of court u/s 151 CPC are in addition to the powers
specifically conferred on the court.

16.3 Distinction between power of court to grant injunction u/s 94 CPC r/w
Order 39, rules 1 & 2 CPC and u/s 151 CPC: CPC has been divided into
sections and rules under various orders. Sections create jurisdiction of the
court while rules indicate manner in which jurisdiction is to be exercised.
Power to grant injunction u/s 94 CPC can be exercised only if the
circumstances under Order 39, rules 1 & 2 CPC are existing. Even if in a
given case, circumstances do not fall within the ambit of Order 39 CPC, the
courts have inherent jurisdiction to issue temporary injunction u/s. 151 CPC
if the court is of the opinion that interest of justice requires issue of such
interim injunction. See: Vareed Jacob vs. Sosamma Geevarghese, (2004) 6
SCC 378

16.4 Court cannot grant interim injunction u/s 151 CPC: A Division Bench of
the Allahabad High Court has held that powers u/s 151 CPC cannot be
invoked to deal with an application for which there is a statutory provision
and temporary injunction in that event can be granted under Order 39, rules 1
& 2 CPC and not u/s 151 CPC. See: Satya Prakash Tiwari vs. Civil Judge
(J.D.), Etawah, 2006 (62) ALR 431 (All) (DB)
16.5 Grant of temporary injunction u/s 151 CPC after rejection of application
for interim injunction under Order 39, rules 1 & 2 CPC: Temporary
injunction cannot be granted under Order 39, rules 1 & 2 CPC if the
imperative THREE conditions (1. prima facie case, 2. irreparable injury and
3. balance of convenience) or any of them is missing. But even after rejection
of the application under Order 39, rules 1 &2 CPC, plaintiff can move fresh
application for temporary injunction u/s 151 CPC and the court can grant
temporary injunction u/s 151 CPC in the interest of justice if it is found to be
imperative in the interest of justice, even if the three ingredients or any of
them as required under Order 39, rules 1 & 2 CPC are missing. See:

15
 (i) Vareed Jacob vs. Sosamma Geevarghese, (2004) 6 SCC 378 (Three-
Judge Bench)
(ii) Satya Prakash vs. First Additional District Judge, Etah, AIR 2002
Allahabad 198.

17. Injunction order of civil court binding over order of executive magistrate
passed u/s 145 CrPC: Where the plaintiff was not allowed to participate in
the proceedings before the executive magistrate u/s 145 CrPC and the civil
court had granted injunction, interlocutory or final, in favour of the plaintiff to
protect her possession over the property, it has been held by the Supreme
Court that the order of the executive magistrate u/s 145 CrPC was not binding
on the plaintiff and the grant of injunction by the civil court in favour of the
plaintiff was proper. See: Shanti Kumar Panda vs. Shakuntala Devi, AIR 2004
SC 115.

17.1 Writ petition under Article 226 not to be entertained when alternative
remedy by way of civil suit or proceeding u/s 145 CrPC is available: In
the case noted below, a petition under Article 226 of the Constitution of India
was filed before the High Court seeking relief of possession over the disputed
flat. The Supreme Court held that remedy to the petitioner was available
before the civil court in the form of a civil suit or before the criminal court
u/s 145 CrPC and the extraordinary jurisdiction of High Court under Article
226 of the Constitution could not have been invoked by the petitioner. See:
Roshina T. Vs. Abdul Azeez K.T., AIR 2019 SC 659.

18. Temporary injunction cannot be passed against a third party or stranger

or a non-party to the suit: It is well settled principle of law that either
temporary or permanent injunction can be granted only against the parties to a
suit. Interim injunction order under Order 39, rules 1 & 2 CPC cannot be
passed against non-party or third party or stranger. Further the consent order
passed in terms of Order 39 CPC is only binding as against parties to the suit.
See : West Bengal Housing Board Vs. Pramila Sanfui, (2016) 1 SCC 743
(Three-Judge Bench).

18.1 Effect of non-impleadment of third party likely to be adversely affected

by temporary injunction: If a third party whose interest is to be adversely
affected by the grant of injunction is not impleaded as party to suit or in the
application for interim injunction, the application for interim injunction
would not be maintainable and no injunction can be granted by court in the
event of such non-impleadment. See: Mashkoor Hasan Khan Vs. Zila
Parishad, Muzaffar Nagar, 1977 AWC 640 (All) (DB)

16
18.2 Execution of eviction decree & injunction suit by third party: Separate
injunction suit by third party claiming independent rights in decretal property
is not maintainable in view of the bar contained u/s 47 CPC and Order 21,
Rule 97 to 101 CPC. Such rights of third party can be decided in the case of
execution of eviction decree itself and interim injunction cannot be granted.
See:
(i) Raghunath Prasad vs. Jang Jeet Singh, AIR 2008 (NOC) 49 (All)
(ii) 2003 AIR SCW 6458
(iii) Dhurandhar Prasad Singh vs. Jai Prakash University, AIR 2001 SC
2552
(iv) Silverline Forum Pvt. Ltd. vs. Rajiv Trust, AIR 1998 SC 1754

19. Interim injunction in representative suit : Where interim relief in the form
of interim injunction under Order 39, rule 1 & 2 CPC is likely to affect large
number of persons but the suit was not filed in representative capacity, it has
been held by the Supreme Court that there was need for plaintiffs to at least
constitute simple majority of affected persons. See : Margaret Almeida Vs.
Bombay Catholic Co-operative Society Limited, (2013) 6 SCC 538

19.1 Pendente lite transfers not to affect the rights of parties specially of
plaintiff: During pendency of the litigation, some more transactions took
place in relation to the house in suit. The Supreme Court held that such
transactions were directly hit by the principle of lis pendens as contemplated
by Section 52 of the Transfer of Property Act and, therefore, the same were
of no consequence so far as the litigation between the parties to the suit was
concerned. In other words, these transactions were not binding on the parties
to the lis much less on the plaintiff. Such parties would be, therefore, at
liberty to now work out their inter se rights in accordance with law as a fall
out of the judgment of the Supreme Court. See: Nadiminti Suryanarayan
Murthy (Dead) through Legal Representatives Vs. Kothurthi Krishna
Bhaskara Rao & Others, (2017) 9 SCC 622 (para 32).

20. No injunction or stay order to be granted against public projects or

schemes etc of the Government regarding:
(i) Public Policy
(ii) Economic Policy
(iii) Public schemes
(iv) Public Projects
(v) Electricity Sub-station on Private Land
(vi) No ex-parte relief by way of injunction or stay especially with respect
to public projects, public schemes or economic policies or schemes of Govt.

17
 should be granted unless there is likelihood of irreparable damage. See:
BALCO employees Union vs. Union of India, AIR 2002 SC 350

20.1. Infrastructure projects not to be restrained: As per sub-section (ha) of

Section 41 of the Specific Relief Act, 1963 inserted w.e.f. 01.10.2018, an
injunction cannot be granted if it would impede or delay the progress or
completion of any infrastructure project or interfere with the continued
provision of relevant facility related thereto or services being the subject
matter of such project.

20.2. No interim injunction even when a public Electricity Sub-station being

constructed on private land: In the present case, the plaintiffs had claimed
temporary injunction to restrain the Electricity Board from interfering with
the possession of the plaintiffs over the land in suit. In earlier round of
litigation, the predecessor in title of the plaintiffs had failed to establish her
title which had attained finality. The plaintiffs had failed to prima-facie
establish possession over the suit land. The Electricity Sub-station was fully
constructed on the suit property to provide electricity to the population of one
lakh. Balance of convenience was in favour of the defendant Electricity
Board. The plaintiffs were entitled to compensation u/s 67(3) of the
Electricity Act, 2003 in the event they proved their title and possession. No
hardship or prejudice was likely to be caused to the plaintiffs. The Supreme
Court held that the plaintiffs were not entitled to temporary injunction under
Order 39, Rules 1 & 2 CPC. See: State of Jharkhand Vs. Surendra Kumar
Srivastava, AIR 2019 SC 231.

20.3. Injunction to restrain construction of commercial complex held

improper: Where construction of a commercial complex by the housing
board under self-financing scheme was restrained by the court by an interim
injunction, the Supreme Court held the grant of injunction improper and
observed thus:” Time has come when the courts should be slow in interfering
at interim stage with schemes which are based on costing. India is having
cost-push economy. In a self-financing scheme based on costing, an interim
injunction has a cascading effect. Failure on the part of even one contributory
in contributing the amount to the cost results in total failure of the project.
The developer, like the housing board, makes an initial investment by
borrowing funds from the market. Therefore, an interim injunction at the
initial stage of the project would result in the total collapse of the entire
project.” See: M.P. Housing Board vs. Anil Kumar Khiwani, AIR 2005 SC
1863.

18
21. Interim Mandatory Injunction: (Section 39, Specific Relief Act, 1963 r/w
Section 94(c) and Order 39, rules 1 & 2 CPC): An interim mandatory
injunction which virtually grants final relief asked for in the plaint cannot be
granted at the interim stage. See:
(i) State of U.P. vs. Ram Sukhi Debi, 2005 (25) AIC 328 (SC)
(ii) Bombay Dyeing & Manufacturing Co. Ltd. vs. Bombay Environmental
Action Group, (2005) 5 SCC 61
(iii) Dattaraj vs. State of Maharashtra, (2005) 1 SCC 590
(iv) B. Singh vs. Union of India, (2004) 3 SCC 363
(v) Deoraj vs. State of Maharashtra, (2004) 4 SCC 697
(vi) Union of India vs. Modilutf Ltd., (2003) 6 SCC 65
(vii) State of U.P. vs. Vishweshar, 1995 (suppl.) 3 SCC 590
(viii) Bharatbhushan vs. Abdul Khalik, 1995 (suppl.) 2 SCC 593
(ix) Shiv Shankar vs. Board of Directors, 1995 (suppl.) 2 SCC 726
(x) Commissioner vs. Ashok Kumar Kohli, JT 1995 (8) SC 403
(xi) Morgan Stanley Mutual Fund vs. Kartickdas, (1994) 4 SCC 225
(xii) Assistant Collector vs. Dunlop India Ltd., 1985 (1) SCC 260

21.1 Interim mandatory injunction: The interim relief granted to the plaintiffs
by the appellate Bench of the High Court in the present case is a mandatory
direction to hand over possession to the plaintiffs. Grant of mandatory interim
relief requires the highest degree of satisfaction of the court; much higher than
a case involving grant of prohibitory injunction. It is, indeed, a rare power,
the governing principles whereof would hardly require a reiteration inasmuch
as the same which had been evolved by the Supreme Court in Borab Cawasji
Warden, (1990) 2 SCC 117, quoted herein, has come to be firmly embedded
in our jurisprudence. See : Mohd. Ehtab Khan & Others Vs Khushnuma
Ibrahim Khan & Others, (2013) 9 SCC 221.

21.2 Interim order granting final relief not to be passed: Interim relief or interim
order which virtually grants final relief in the case, cannot be granted. See:
(i) Indore Development Authority vs. Mangal Amusement Pvt. Ltd., AIR 2011
SC 199.
(ii) Union of India vs. Modilutf Ltd., (2003) 6 SCC 65.

22. Interim injunction in favour of defendant in a suit filed by plaintiff: An

interim injunction in favour of defendant in a suit filed by plaintiff can be
granted by court even u/s 151 CPC and the court is not bound in such cases by
the limitations u/o 39, rules 1 & 2 CPC. However such interim injunctions
should be granted in very rare and exceptional circumstances. See: Shiv Ram
Singh vs. Smt. Mangara, 1988 ALJ 1516 (All).

19
22.1 Interim injunction in favour of defendant in a suit filed by plaintiff: In a
suit filed by the plaintiff, it is open to the defendant to file an application only
u/O 39, Rule 1(a) of CPC seeking temporary injunction and the Court on
being satisfied that a case is made out for grant of such injunction, can grant
the same in its discretion. See: Smt. Shakunthalamma & Others Vs. Smt.
Kanthamma & Others, AIR 2015 Karnataka 13 (Full Bench).

22.2 Plaintiff alone, and not the defendant, can maintain application for
temporary injunction under clauses (b) & (c) of Order 39, rule 1 CPC:
The relief under Order 39, Rule 1(b) and (c) is available only to the plaintiff
and the defendant cannot maintain an application for the said reliefs in a suit
filed by the plaintiff, irrespective of the fact that his right to such relief arises
either from the same cause of action or a cause of action that arises
subsequent to filing of the suit. However, it is open to the defendant to
maintain a separate suit against the plaintiff and seek relief provided under
Order 39, Rule 1(b) and (c) of the Code. See: Smt. Shakunthalamma &
Others Vs. Smt. Kanthamma & Others, AIR 2015 Karnataka 13 (Full Bench).

23. Objection by defendant to decide any of the following matters before

hearing and disposal of temporary injunction application:
(i) Maintainability of suit
(ii) Jurisdiction
(iii) Valuation
(iv) Court Fee
(v) Limitation
(vi) Res judicata
(vii) Non impleadment of party

23.1 Objection as to jurisdiction: Objection as to jurisdiction to be decided by

the court as a preliminary issue would not prevent the court from passing
interim orders while the decision on question of jurisdiction is pending if
called for in the facts and circumstances of the case. Any violation of such
interim order would be punishable under Order 39, rule 2-A CPC even if later
on the court holds that it had no jurisdiction to entertain the suit. See:
Tayabbhai M. Bagasarwalla vs. Hind Rubber Industries Pvt. Ltd., (1997) 3
SCC 443.

23.2 Valuation, Court Fee or maintainability of suit: When there is challenge to

jurisdiction, valuation or sufficiency of court fee or maintainability of suit,
the court is to first decide these issues and then to decide the application for
temporary injunction and other matters. See: Arun Kumar Tiwari vs. Smt.
Deepa Sharma, 2006 (1) ARC 717 (All) (DB).

20
23.3 Non-impleadment of party: A disputant is entitled to an interim order
provided he is a party thereto. If for one reason or the other, he cannot be
impleaded as a party to the proceeding, the court would have no jurisdiction
to pass any interim order in his favour. If the impleadment application is not
maintainable, it is required to be dismissed in limine. It cannot be entertained
only for pressing an interim order. Law does not contemplate exercise of
such a jurisdiction by a court of law. Any such order passed is coram non
judice. See: Shyamali Das vs. Illa Chowdhary, (2006) 12 SCC 300.

23.4 Jurisdiction/ maintainability/ limitation/ valuation/ court fee/ res

judicata: It is settled law that an issue concerning res judicata is an issue of
law and therefore there is no impediment in treating and deciding such an
issue as a preliminary issue. Such like issues can be treated and decided as
issues of law under Order 14, rule 2(2) CPC. Similarly, the other issues
concerning limitation, maintainability, court fee can always be treated as
preliminary issues as no detailed evidence is required to be led. Evidence of a
formal nature even with regard to a preliminary issue has to be led because
these issues would either create a bar in accordance with law in force or they
are jurisdictional issues. See:
(i) Hari Das vs. Usha Rani Banik, (2006) 4 SCC 78
(ii) Pandurang Dhoni Chougule vs. Maruti Hari Jadhav, AIR 1966 SC 153
(Five- Judge Bench) = (1966) 1 SCR 102.

24. Section 38 & 41 of Specific Relief Act, 1963 and ad interim injunction:
For grant or refusal of ad interim injunction, court has to take into
consideration the provisions of Section 38 and 41 of the Specific Relief Act,
1963 read with Order 39, rule 2, sub-rule (2), clause (a) to Proviso thereto as
added in U.P. w.e.f. 1.1.1977. See:
(i) M/s. Bagla Advertising Pvt. Ltd. vs. U.P. SIDC Corp. Ltd., 2007 (67)
ALR 334 (All)(D.B.)
(ii) Dalpat Kumar vs. Prahlad Singh, 1992 (1) CCC 73 (SC)
(iii) Shiv Sharan Goel vs. M/s. Kedarnath, Omprakash, 1989 (1) ARC 351
(iv) Municipal Corporation Delhi vs. Suresh Chandra Jaipuria, AIR 1976
SC 2621
24.1 Mandatory injunction to enforce specific performance of agreement for
sale not to be granted : Where the plaintiff had filed suit for mandatory
injunction to direct the defendant to take balance consideration and execute
the sale deed as promised in the agreement for sale, it has been held by the
Supreme Court that proper relief to the plaintiff was to file a suit for specific
performance of contract, and not the suit for mandatory injunction. See: Atma
Ram Vs. Charanjit Singh, (2020) 3 SCC 311.

21
24.2 Injunction in a suit for specific performance of contract: Grant of
temporary injunction in a suit for specific performance of contract for sale is
not proper when there are doubts as to the existence of a concluded contract
and there is delay in instituting the suit. Grant of relief in a suit for specific
performance is itself a discretionary remedy and a plaintiff seeking
temporary injunction will therefore have to establish a strong prima facie
case on the basis of undisputed facts. The conduct of the plaintiff will also be
a very relevant consideration for purposes of injunction. See: Ambalal
Sarabhai Enterprise Limited Vs. KS Infrastructure LLP Limited,
(2020) 5 SCC 410

24.1 Writ petition under Article 227 of the Constitution against refusal of
interim injunction maintainable: A writ petition under Article 227 of the
Constitution of India against an order passed by the civil court refusing to
grant interim injunction under Order 39, rules 1 & 2 CPC is maintainable.
See: State of Jharkhand Vs. Surendra Kumar Srivastava, AIR 2019 SC 231.

24.2 Writ Petition under Article 226 not to be entertained when alternative
remedy by way of civil suit or proceeding u/s 145 CrPC is available: In
the case noted below, a petition under Article 226 of the Constitution of India
was filed before the High Court seeking relief of possession over the disputed
flat. The Supreme Court held that remedy to the petitioner was available
before the civil court in the form of a civil suit or before the criminal court
u/s 145 CrPC and the extraordinary jurisdiction of High Court under Article
226 of the Constitution could not have been invoked by the petitioner. See:
Roshina T. Vs. Abdul Azeez K.T., AIR 2019 SC 659.

25. License by Municipal Board & injunction: No injunction regarding

cancellation of licence granted by municipal board can be granted by civil
court as Section 61 of the Uttar Pradesh Municipalities Act, 1916 provides
for complete mechanism for redressal of such disputes and Section 41(h) of
the Specific Relief Act, 1963 bars the jurisdiction of civil courts. See:
Chhedilal vs. Rajaram, AIR 2008 (NOC) 334 (All).

26. Revival of temporary injunction on restoration of suit: Upon restoration of

suit which had been dismissed for default, the interim injunction granted
earlier stands automatically revived unless the court expressly or impliedly
excludes its operation. See:
(i) Vareed Jacob vs. Sosamma Geevarghese, AIR 2004 SC 3992 (Three-
Judge Bench)
(ii) Ishrat Jahan vs. V ADJ, Hardoi, 2005(2) AWC 1762 (All) ( LB).

22
26.1 Restoration of writ petition and revival of interim order passed therein:
Relying upon the case of Vareed Jacob vs. Sosamma Geevarghese, (2004) 6
SCC 378, the Lucknow Bench of the Hon'ble Allahabad High Court has held
that: "This Court has taken note of the fact that the writ petition was
dismissed in default on 4.02.2004 and within four days i.e. on 08.02.2004, an
application for restoration was submitted by the learned Counsel for the
petitioner No. 1 which remained pending for about two years and ultimately
on 27.09.2006, the said restoration application was allowed and the writ
petition was restored to its original number. The writ petition was restored in
toto. Applying the principle of law laid down by Hon'ble the Supreme Court
of India (Three Judges Bench) in the case of Vareed Jacob (supra), this Court
is also of the view that after restoration of the writ petition, the interim order
granted by a Division Bench of this Court on 30.09.1985 has become
operative and the petitioner ought to have been allowed to continue as
Principal of the Institution immediately after 27.09.2006". (Para 27). See:
Mrs. Saroj Chaudhary Vs. State of UP, 2007 (25) LCD 765 (Lucknow
Bench).

26.2 Temporary injunction not to be granted unless the suit is restored:

Where the suit wherein temporary injunction was granted was dismissed in
default and during the pendency of proceedings of the restoration application,
an application for grant of temporary injunction was made, it has been held
by the Allahabad High Court that no temporary injunction can be granted
unless the suit is restored as the temporary injunction can be issued only in
suit and not after the disposal of the suit. See:
(i) Jagdhari vs. Vth ADJ, Azamgarh, 1992 AWC 1152 (All)
(ii) Mohammad Ibrahim Khan vs. Pateshari Prasad Singh, AIR 1960 All
252 (D.B.)

26.3 Extension of already discontinued interim injunction or stay order: An

interim injunction order or stay order when extended to a particular date but
not extended further beyond that particular date would be presumed to have
ceased from the date of non-extension. See: Ashok Kumar vs. State of
Haryana, AIR 2007 SC 1411.

26.4 Discharge of temporary injunction: In view of the second Proviso added to

Rule 4 of Order 39 CPC in the State of U.P. since 1.2.1977, the court shall set
aside the order of injunction if the party in whose favour the interim order of
injunction was granted, appears to be dilating the proceedings or otherwise
abuses the process of the court.

23
27. Declaratory suit and injunction: In the cases noted below, the Supreme
Court has held that in a suit for declaration of title simpliciter, the court has
power under Order 39, rules 1 and 2 CPC or even under Section 151 CPC to
grant ad interim injunction pending the suit. See:
(i) Ramji Rai Vs. Jagdish Mallah, AIR 2007 SC 900
(ii) Smt. Rajnibai vs. Smt. Kamla Devi, AIR 1996 SC 1946.

27.1 Suit for mere permanent injunction without seeking declaration of title
maintainable: A suit for decree of perpetual injunction restraining the
defendant from interfering with the possession of plaintiff without seeking
relief of declaration of title is maintainable and interim injunction can be
granted in such suit. See: Corporation of City of Bangalore vs. M. Papaiah,
AIR 1989 SC 1809.

27.2 Declaration of title alongwith injunction when necessary?: In a suit for

injunction claiming the relief of declaration of title when or when not would
be necessary has been clarified by the Supreme Court in the case noted below
as under:
(i) Where a cloud is raised over plaintiff’s title and he does not have
possession, a suit for declaration and possession, with or without a
consequential injunction, is the remedy. Where the plaintiff’s title is
not in dispute or under a cloud, but he is out of possession, he has to
sue for possession with a consequential injunction. Where there is
merely an interference with plaintiff’s lawful possession or threat of
dispossession, it is sufficient to sue for an injunction simpliciter.
(ii) As a suit for injunction simpliciter is concerned only with possession
normally the issue of title will not be directly and substantially in issue.
The prayer for injunction will be decided with reference to the finding
on possession. But in cases where dejure possession has to be
established on the basis of title to the property, as in the case of vacant
sites, the issue of title may directly and substantially arise for
consideration, as without a finding thereon, it will not be possible to
decide the issue of possession.
(iii) But a finding on title cannot be recorded in a suit for injunction, unless
there are necessary pleadings and appropriate issue regarding title [
either specific or implied as noticed an Annaimuthu Thevar (Supra)].
Where the averments regarding title are absent in a plaint and where
there is no issue relating to title, the court will not investigate or
examine or render a finding on a question of title in a suit for
injunction. Even where there are necessary pleadings and issue, if the
matter involves complicated questions of fact and law relating to title,
the court will relegate the parties to the remedy by way of

24
 comprehensive suit for declaration of title, instead of deciding the issue
in a suit for mere injunction.
(iv) Where there are necessary pleadings regarding title, and appropriate
issue relating to title on which parties lead evidence, if the matter
involved is simple and straight forward the court may decide upon the
issue regarding title, even in a suit for injunction. But such cases, are
the exception to the normal rule that question of title will not be
decided in suits for injunction. But persons having clear title and
possession suing for injunction, should not be driven to the costlier and
more cumbersome remedy of a suit for declaration, merely because
some meddler vexatious or wrongfully makes a claim or tries to
encroach upon his property. The Court should use its discretion
carefully to identify cases where it will enquire into title and cases
where it will refer plaintiff to a more comprehensive declaratory suit,
depending upon the facts of the case. See: Anathula Sudhakar Vs. P.
Buchi Reddy, 2008(2) AWC 1768 (SC).

27.3 Declaratory suit and interim injunction: In a suit for mere declaration, no
ad-interim injunction can be granted. See: Mohammad Ibrahim Khan vs.
Pateshwari Prasad Singh, AIR 1960 All 252 (DB).

28. Natural resources like forest, tanks, ponds, hillocks and mountains etc.
must be protected against any sort of construction activity or
encroachment or allotment etc.: Forests, tanks, ponds, hillocks and
mountains etc.are nature's bounty. They help maintain the delicate ecological
balance and need to be protected for that reason. The High Court proceeded
to hold that considering the report of the SDO the area of 10 biswas only
could be allotted and the remaining five biswas of land which have still the
character of a pond, could not be allotted. It is difficult to sustain the
impugned order of the High Court. There is a concurrent finding that a pond
exists and the area covered by it varies in the rainy season. In such a case no
part of it could have been allotted to anybody for the purpose of house
building or any allied purposes. The material resources of the community like
forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They
maintain delicate ecological balance. They need to be protected for a proper
and healthy environment which enables people to enjoy a quality life which
is the essence of the guaranteed right under Article 21 of the Constitution.
The government, including the Revenue Authorities i.e. Respondents 11 to
13, having noticed that a pond is falling in disuse, should have bestowed their
attention on developing the same which would, on one hand, have prevented
ecological disaster and on the other provided better environment for the
benefit of the public at large. Such vigil is the best protection against knavish

25
 attempts to seek allotment of non-abadi sites. Natural resources,
Conservation of--Water bodies/resources--Artificial tanks--Preservation of--
Right to--Entitlement to--Held, though natural water storage resources must
be protected and restored if fallen in disuse, this principle cannot be applied
in relation to artificial tanks--Tank in question not a natural one--Only rain
water could be collected in it--It was in a dilapidated condition for a long
time and had been used as a dumping yard and sewage collection pond--No
shortage of water in village where said tank existed--Held, it was not a case
where resurrection of said tank should be directed--However, direction made
to State and Gram Panchayat to see that other tanks in or around the village
were properly maintained, there was no water shortage and ecology was
preserved. See:
(i) Hinch Lal Tiwari Vs. Kamla Devi & Others, (2001) 6 SCC 496
(ii) Susetha Vs. State of T.N. & Others, (2006) 6 SCC 543
(iii) Intellectuals Forum Vs. State of A.P., (2006) 3 SCC 549
(iv) Animal and Environment Legal Defence Fund Vs. Union of India, AIR
1997 SC 1071= (1997) 3 SCC 549
(v) M.C. Mehta (Badkhal and Surajkund Lakes Matter) Vs. Union of
India, (1997) 3 SCC 715.
(vi) People United for Better Living in Calcutta Vs. State of W.B., AIR
1993 Cal 215
(vii) T.N. Godavarman Thirwulpad (99) Vs. Union of India, (2006) 5 SCC
47
(viii) L. Krishnan Vs. State of T.N., AIR 2005 Mad 311
(ix) Bombay Dyeing & Mfg. Co. Ltd (3) Vs. Bombay Environment Action
Group, (2006) 3 SCC 434

29. Public parks/play grounds and temporary injunction against conversion

thereof: Interpreting the provisions of Section 13 of the U.P. Urban
Planning and Development Act, 1973 and Section 2 of the U.P. Parks,
Play Grounds and Open Spaces (Preservation and Regulation) Act, 1975,
it has been held that the development authority or even the State Government
cannot make any constructions upon public parks, play grounds, stadium etc.
and any such illegal constructions thereon can be ordered by the court to be
dismantled. See:

(i) D.D. Vyas vs. Ghaziabad Development Authority, 1993 ALJ 86

(All)(D.B.)
(ii) Bangalore Medical Trust vs. B.S. Mudappa, AIR 1991 SC 1902
(iii) Arun Kumar vs. Nagar Mahapalika, Allahabad, 1987 All. LJ 1038
(D.B.)

26
 (iv) Ram Das Shenoy vs. Chief Officers, Town Municipal Council Udipi,
AIR 1974 SC 2177

30. Roadside land and injunction against removal of encroachment thereon:

No temporary injunction can be granted against encroachment against
removal of encroachment by construction of temporary kiosks, Gumties and
shops on roadside land. See:
(i) Town Area Committee, Naraini Banda vs. SSP Banda, 1998 (33) ALR
322 (All)(D.B.)
(ii) Raj Mani vs. State of U.P., 1995 (25) ALR 281 (All)(D.B.)

30.1 Public road and injunction against removal of encroachment thereon:

No temporary injunction can be granted against removal of encroachment
over public road as no person has right to occupy the public roads. Public
road is meant for traffic only and for no other purpose. Footpaths,
pavements, and the land in between the public road and the houses
alongside such public roads are public property and not the land for private
use. Existence of dwelling on pavements is unquestionably a source of
nuisance and injunction cannot be granted against removal of such
encroachments are nuisances. See:
(i) Durga Prasad vs. State of U.P., 1999 (36) ALR 64 (All)(D.B.)
(ii) Sushil Kumar Agarwal vs. Executive Engineer, PWD, Moradabad,
1998 (1) AWC 2(20) (NOC) (All)(D.B.)
(iii) Raj Mani vs. State of U.P., 1995 (25) ALR 281 (All)(D.B.)
(iv) Bala Din Yadav vs. Ramdulare, AIR 1990 All 19

30.2 Observance of principles of natural justice not necessary if the

encroachment on public land is of recent origin: The Constitution does not
put an absolute embargo on the deprivation of life of personal liberty but such
a deprivation must be according to the procedure in the given circumstances
fair and reasonable. To become fair, just and reasonable, it would not be
enough that the procedure prescribed in law is a formality. It must be
pragmatic and realistic one to meet the given fact-situation. No inflexible rule
of hearing and due application of mind can be insisted upon in every or all
cases. Each case depends upon its own backdrop. The removal of
encroachment needs urgent action. But in this behalf what requires to be done
by the competent authority is to ensure constant vigil on encroachment of the
public places. Sooner the encroachment is removed when sighted, better
would be the facilities or convenience for passing or re-passing of the
pedestrians on the pavements or footpaths facilitating free flow of regulated
traffic on the road or use of public places. On the contrary, the longer the
delay, the greater will be the danger of permitting the encroachers claiming

27
 semblance of right to obstruct removal of the encroachment. If the
encroachment is of a recent origin the need to follow the procedure of
principle of natural justice could be obviated in that no one has a right to
encroach upon the public property and claim the procedure of opportunity, of
hearing which would be a tardious and time-consuming process leading to
putting a premium for high-handed and unauthorised acts of encroachment
and unlawful squatting. On the other hand, if the Municipal Corporation
allows settlement of encroachers for a long time for reasons best known to
them and reasons are not far to seek then necessarily a modicum of reasonable
notice for removal, say two weeks or 10 days, and personal service on the
encroachers or substituted service by fixing notice on the property is
necessary. If the encroachment is not removed within the specified time, the
competent authority would be at liberty to have it removed. That would meet
the fairness of procedure and principle of giving opportunity to remove the
encroachment voluntarily by the encroachers. On their resistance, necessarily
appropriate and reasonable force can be used to have the encroachment
removed. See: Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab
Khan, AIR 1997 SC 152 (Para 9).

30.3 License of tehbazari on roadside land and injunction against removal

thereof: No public authority has any right to issue license encouraging
encroachment over public road or public land. License to conduct business
on roadside land by payment of tehbazari does not confer any right upon the
person paying tehbazari and doing business and temporary injunction can
not be issued against the eviction of such persons. See:
(i) Leela Dhar Joshi vs. State of U.P., 1998 ALJ 986 (All)(D.B.)
(ii) Sushil Kumar Agarwal vs. Executive Engineer, PWD, Moradabad,
1998 (1) AWC 2(20) (All) (NOC)
(iii) Raj Mani vs. State of U.P., 1995 (25) ALR 281 (All) (D.B.)

31. Injunction by inferior court restraining judicial proceeding before

superior court: Court has no jurisdiction either u/s 41(b) of the Specific
Relief Act, 1963 or u/s 151 CPC to grant temporary injunction restraining a
person from instituting any proceeding which such person is otherwise
entitled to institute in a court not subordinate to that from which the
temporary injunction is sought. If final relief asked for cannot be granted, the
temporary injunction can hardly be granted. See: Cotton Corporation of India
Ltd. vs. United Industrial Bank Ltd., AIR 1983 SC 1272.

32. Educational institutions and temporary injunctions in the administration

of internal affairs of university: Order 39, rule 2, sub-rule 2, U.P.
Amendment, Proviso, clause (h) CPC). In a matter touching either the

28
 discipline or the administration of the internal affairs of a University, Courts
should be most reluctant to interfere. They should refuse to grant an
injunction unless a fairly good prima facie case is made out for interference
with the internal affairs of educational institutions. See: Varanaseya Sanskrit
Vishwavidyalaya vs. Dr. Rajkishore Tripathi, AIR 1977 SC 615.

32.1 Declaration of result of examination: Direct intervention by court in the

matter of university regarding declaration of result (LL.M. Examination) may
lead to serious and disastrous results and repercussions. It would be proper to
leave such matters to expert wisdom of the university authorities. See: Satpal
Singh vs. Vice-Chancellor, Chaudhary Charan Singh University, Meerut,
1999 (1) AWC 2(17) (NOC) (All).

32.2 Revaluation of answer books: In deciding the matters relating to orders

passed by authorities of educational institutions, the Court should normally
be very slow to pass orders in its jurisdiction because matters falling within
the jurisdiction of educational authorities should normally be left to their
decision and the Court should interfere with them only when it thinks it must
do so in the interest of justice. See: Bhushan Uttam Khare vs. The Dean, B.J.
Medical College, AIR 1992 SC 917.

32.3 Issue of admit card or appearance in examination: Court cannot grant

either interim prohibitory injunction against the authorities of the educational
institution by restraining them from precluding the examinee from appearing
in the examination nor can issue direction for issuing admit card. See:
Council for ISCE, New Delhi vs. District Judge, Agra, 1999 (35) ALR 221
(All).

32.4 Admission in University (Order 39, rule 2, sub-rule 2, U.P. Amendment,

proviso, clause (h) CPC): In view of the alternative remedy for agitating the
matter before the Chancellor u/s 68 of the U.P. State Universities Act, 1973,
injunction to grant admission cannot be issued. See: Satyaprakash Singh vs.
Vice-Chancellor, Dr. Bhimrao Ambedkar Vishwavidhalaya, Agra, AIR 1998
All 66.

33. Co-owners and temporary injunction: Interference into possession of co-

sharer by co-sharer. Possession of one co-owner is always possession of all
co-owners. If the disputed land is in joint possession of both parties or of all
co-owners, no injunction can be granted against interference into possession
of one co-owner by another co-owner. See:
(i) Bauram vs. Munni, 2008 (26) LCD 1220 (All)
(ii) Jahar Singh vs. Board of Revenue, 2005 (3) AWC 2877 (All)

29
 (iii) Ajai Pal Singh vs. Shitla Bux Singh, 2005 (2) AWC 2001 (All) (LB)

33.1 Transfer/eviction/construction/demolition by co-owner: No injunction can

be granted in favour of a co-sharer and against other co-sharer of an
undivided property except:
(a) against ouster or eviction of co-sharer by one or more co-sharers,
(b) against construction or demolition of undivided property by one or more
co-sharers,
(c) against transfer or sale etc. of undivided immovable property by one or
more co-sharers. See:
(i) Deepali Bhattacharya vs. Ramji, 1990 (16) ALR 609 (All)
(ii) Vidyamati Mandir, Ghaziabad vs. Rajindra Nath, 1991 AWC 786
(All)(D.B.)
(iii) Gangubai Vs. Sita Ram, AIR 1983 SC 742

33.2 Transferee-cum-co-sharer and temporary injunction: The suit property

was purchased originally by the father and mother of the appellant/plaintiff.
The superstructure on the land was constructed subsequent to the purchase.
After the death of the mother the appellant and his father as surviving joint
tenants came to own the entire property. Under as agreement the appellant
and his father, agreed to hold the same as tenants in common, each having as
equal undivided share therein so that each can disposal of his undivided share
in the property. Subsequently the appellant’s father transferred his undivided
half share in the suit property infavour of his another son. Thus the appellant
and his brother came to hold and equal undivided one half share each, as
tenants in common in respect of the said property. Appellants brother died
intestate. His widow and his two minor sons sold their undivided one-half
share in he said property to the vendee. The appellant filed a suit against
vendors i.e. his brother wife and her sons u/s 33 of TP Act. The suit was filed
on the ground that the suit property was a dwelling house belonging to an
undivided family, that there has not been any division of the said property at
any time, that the appellant-plaintiff and his deceased brother during his
lifetime were for convenience occupying different portions, the plaintiff
occupying the first floor while the deceased brother was occupying the
ground floor. After the death of brother his wife and sons continue to be in
occupation of that portion which was in the occupation of brother. In the
circumstances the vendee a stranger to the family has no right to have joint
possession or common enjoyment of the property alongwith the plaintiff on
the basis of the purchase of the undivided share. On this ground the
appellant-plaintiff claimed the suit property he has also claimed the interim
injunction restraining the vendors from parting with possession of the said
property or any part thereof and/or inducting the vendee into the suit property

30
 or any part or portion thereof and a similar injunction restraining the vendee
from entering into or taking possession and/or remaining in possession or
enjoyment of the suit property or part thereof. Held, that some notions of
coparcenary property of a Hindu joint family which may not be quite
accurate in considering Section 44 but what is relevant for the purpose of
these proceedings was whether the selling house belonged to an undivided
family. Even if the family is divided in status in the sense that they were
holding the property as tenants in common but undivided qua the property
that is the property had not been divided by metes and bounds it would be
within the provisions of Section 44 of the Act. In the absence of a document
evidencing partition of absence of a document evidencing partition of the suit
house by metes and bounds and on the documentary evidence showing that
the property was held by the appellant and his brother in equal undivided
shares, it could be said that the plaintiff-appellant has shown a primafacie
case that the dwelling house belonged to an undivided family consisting of
himself and his brother. Primafacie, therefore, the transfer by the vendee
would come within the mischief of second paragraph of Sec.44. While Sec.
44 does not give a transferee of a dwelling hould belonging to an undivided
family a right to joint possession and confer a corresponding right on the
other members of the family to deny the right to joint possession to a stranger
transferee, Sec.4 of the Partition Act gives a right to a member of the family
who has not transferred his share to purchase the transferee’s share on a value
to be fixed in accordance with law when the transferee filed a suit for
partition. Both theses are valuable rights to the members of the undivided
family whatever may be the object or purpose for which they were conferred
on the right to joint possession is denied to a transferee in order to prevent a
transferee who is an outsider from forcing his way into a dwelling house in
which the other members of his transferee’s family have a right to live. In
considered to be illegal and the only right of the stranger purchaser is to sue
for partition. All these considerations would go only to show that denying an
injunction against a transferee in such cases would prima facie cause
irreparable injury to the other members of the family. See: Dorab Cawasji
Warden Vs. Coomi Sorab Warden, AIR 1990 SC 867.

33.3 Undivided share of co-parcener can be transferred but possession cannot

be handed over to him: An undivided share of co-parcener can be
transferred but possession cannot be handed over to vendee unless the
property is partitioned by metes and bounds either by decree of court in
partition suit or by settlement among co-sharers. See:
(i) Gajara Vishnu Gosavi Vs. Prakash Nanasahed Kamble, 2010 (2)
SCCD 1105 (SC)
(ii) Ramdas Vs. Sitabai, JT 2009(8) SC 224

31
 (iii) M.V.S. Manikayala Rao Vs Narasimhaswami, AIR 1966 SC 470
(iv) Sidheshwar Mukherjee Vs, Bhubneshwar Prasad Narain Sing, AIR
1953 SC 487

33.4 Interim injunction against transfer of immovable property can be

granted : Interim injunction against transfer of immovable property can be
granted by the court u/o 39, Rule 1 CPC. See: Paras Nath Singh Vs Smt.
Sirtaji Kunwari, 2012 (117) RD 143 (All) (LB).

33.5 Injunction when co-sharer having lost ownership rights: Where parties
were co-sharers and no suit for partition was filed by the plaintiff’s brother
and the plaintiff was not exercising ownership rights on the suit property, it
has been held that the plaintiff was not entitled to the relief of injunction
restraining defendant from raising construction on the property. See: Sheoraj
Vs. M/s Accord Infrastructure Pvt. Ltd., 2011 (2) ALJ 501(All) (DB).

34. Suit for declaration of matrimonial status maintainable before Family

Court and not before Civil Court: A suit for declaration regarding
matrimonial status of a person has to be filed only before the Family Court
and not before the Civil Court, be it affirmative declaration or negative
declaration. It is wrong to say that negative declaration is not within the
jurisdiction of the Family Court. See: Balram Yadav Vs. Phulmaniya Yadav,
AIR 2016 SC 2161.

34.1 Second marriage and temporary injunction: General law in CPC i.e.
Order 39, rules 1 & 2 CPC can be resorted to, even ex-parte, to restrain party
from contracting or performing void Act, i.e., second marriage under the
Hindu Marriage Act, 1955, though being a special statute, does not provide
for grant of interim injunction. See: Km. Kirti Sharma vs. Civil Judge (Senior
Division), Etah, 2005 (2) AWC 1741 (All).

34.2 Child marriage and injunction by judicial magistrate under the

Prohibition of Child Marriage Act, 2006: The Child Marriage Restraint
Act, 1929 has been repealed since 11.1.2007 and the new Act “The
Prohibition of Child Marriage Act, 2006” has come into force since
11.01.2007. Under the 2006 Act, “child” means a person who, if a male, has
not completed 21 years of age and if a female, has not completed 18 years of
age. Under Section 13 of The Prohibition of Child Marriage Act, 2006, a
Judicial Magistrate or Metropolitan Magistrate, on an application of the Child
Marriage Prohibition Officer or on receipt of an information through a
complaint or otherwise from any person, is competent to issue injunction
restraining the solemnization of child marriage. In case of any urgency, the

32
 Judicial Magistrate or Metropolitan Magistrate can issue an interim
injunction without giving any notice to the opposite parties.

35. Agreement for sale and temporary injunction: Where the purchaser/
plaintiff had sought for injunction restraining the seller/defendant from
alienating the property on the basis of agreement for sale, it has been held by
the Allahabad High Court that injunction cannot be granted by court on the
basis of agreement for sale in view of the provisions of Section 41(h) of the
Specific Relief Act ,1963 read with Order 39, rules 1 & 2 CPC as equally
efficacious relief can be obtained in suit for specific performance of contract.
See: Rajendra Kumar vs. Mahendra Kumar Mittal, AIR 1992 All 35 (DB).

35.1 Agreement for sale and temporary injunction to protect possession:

Plaintiff claimed to be in possession of property in part performance of
agreement to sell and claiming to have inducted tenant. Fact that was in
possession of suit property was undisputed. Interim Injunction by trial court
was granted against defendant not to evict the plaintiff without following due
process of law. Single Judge of the High Court reversed the order of the
Trial Court on the ground that the plaintiff had filed suit for injunction
without reserving his right to sue for relief of specific performance and,
therefore, the plaintiff was not entitled to injunction. The Supreme Court
held that the said view of the single judge of the High Court was improper
and that of the Trial Court was the correct view. The order of the High Court
was set aside. See: Lakshmi Vs E. Jayaram, AIR 2013 SC 2939.

35.2 Injunction restraining sale of property mentioned in agreement for sale:

In a suit for specific performance of agreement, the owner of the property
was trying to sell the property to third party. The trial court by way of interim
injunction directed the parties to maintain status quo with the condition that
the purchaser shall deposit the balance amount of consideration. The High
Court set aside the order of status quo passed by the trial court. But the
Supreme Court held that the High Court was not justified in setting aside the
order of status quo passed by the trial court and set aside the order of the
High Court by holding the order of the trial court valid. See: N. Srinivasa vs.
Kattukaran Machine Tools Ltd., AIR 2009 SC 2217.

36. Possession and injunction: If the plaintiff is in possession of the suit

property, he can, on the strength of his possession, resist interference from
defendant who has no better title than himself and get injunction restraining
the defendant from disturbing his possession. See: M. Kallappa Setty vs.
M.V. Laxminarayana Rao, AIR 1972 SC 2299

33
36.1 Party in lawful possession of property cannot be evicted without
applying due process of law: A party in lawful possession of the property
cannot be evicted without applying due process of law and such party is
entitled to ad interim injunction for protection of his lawful possession
pending the civil suit. See: N. Umapathy vs. B.V. Muniyappa, AIR 1997 SC
2467.

36.2 No injunction against dispossession if plaintiff not found in possession:

Injunction cannot be granted against dispossession if the party seeking
injunction is not found in possession. See:
(i) S.R. Batra Vs. Smt. Taruna Batra, 2007 (67) ALR 175 (SC).
(ii) Terene Traders vs.Ramesh Chandra Jamnadas, AIR 1987 SC 1492

36.3 Doubtful possession and injunction: When it is doubtful to come to the

conclusion that plaintiff has possession over the property, Order 39, rule 1(c)
CPC has no application and injunction cannot be granted. See: Dasnam Naga
Sanyasi vs. Allahabad Development Authority, Allahabad, AIR 1995 All
418.

36.4 Possession when must for injunction?: As a suit for injunction simpliciter
is concerned only with possession, normally the issue of title will not be
directly and substantially in issue. The prayer for injunction will be decided
with reference to the finding on possession. But in cases where de jure
possession has to be established on the basis of title to the property, as in the
case of vacant sites, the issue of title may directly and substantially arise for
consideration, as without a finding thereon, it will not be possible to decide
the issue of possession. See: Anathula Sudhakar Vs. P. Buchi Reddy, 2008(2)
AWC 1768 (SC).

36.5 No injunction to watchman/care taker/agent/servant/ licensee (lisensee)

being persons in gratuitous possession/permissive possession against
dispossession by owner of the premises : Suit for injunction by
watchman/care taker/agent/servant being persons in gratuitous
possession/permissive possession (licence) against dispossession by owner of
the premises is not maintainable. Such person holds property on behalf of
principal (owner) and acquires no right or interest therein irrespective of long
possession. Protection of courts can be granted or extended only to a person
who has valid subsisting rent agreement, lease agreement or license
agreement in his favour. See: A. Shanmugam Vs. Ariya Kshatriya Rajakula
Vamsathu Madalya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430.

34
36.6 Trespasser cannot seek injunction against true owner of property: It is
settled law that injunction would not be issued against the true owner of the
property. Issuance of injunction is absolutely a discretionary and equitable
relief. Injunction is personal right u/s 41(J) of the Specific Relief Act, 1963,
and for an injunction, plaintiff must have personal interest in the matter. Even
assuming that the party had any possession over the property but if his
possession is wholly unlawful possession of a trespasser then an injunction
cannot be issued in favour of a trespasser or a person who gained unlawful
possession as against the owner. Pretext of dispute of identify of the land
should not be an excuse to claim injunction against true owner. See: Premji
Ratansey vs. Union of India, 1994 III ADSC (C) 514 (SC).

36.7 Injunction against true owner of property: Where the party was put in
lawful possession of the property by Tehsildar after partition, grant of interim
injunction under Order 39, rules 1 & 2 CPC against such lawful owner of the
property has been held by the Supreme Court as improper. See:
Hanumanthappa vs. Muninarayanappa, 1997 (29) ALR 392 (SC).

36.8 No injunction against a party in lawful of property: Where the party was
in possession of the immovable property on the basis of sale certificate issued
by court in execution of decree, it has been held that the possession of the
party cannot be said to be that of a trespasser and injunction cannot be
granted against such party in possession. See: Anand Prasad Agarwalla vs.
Tarkeshwar Prasad, AIR 2001 SC 2367

36.9 Possession and injunction: Dispossession & injunction: Adverse

possession and injunction: A person claiming the title by virtue of adverse
possession can maintain a suit under Section 65 of the Limitation Act, 1963
for declaration of title or for a permanent injunction seeking protection of his
possession thereby retraining the defendant or for restoration of possession in
case of illegal dispossession. See:
(i).Ravinder Kaur Grewal Vs. Manjit Kaur, 2019 SCC Online SC975 (Three-
Judge Bench).
(ii).Narendra Kumar Tripathi Vs. Karuna Auddy, (2020) 3SCC 220

Note: Three contrary previous decisions of the Supreme Court by Two-

Judge Benches reported in (i) Gurudwara Sahab Vs. Gram Panchayat Village
Sirthala, (ii) State of Uttarakhand Vs.Mandir Shri Lakshmi Siddh Signature
Not Verified Maharaj and (iii) Dharampal Vs. Punjab Waqf Board have now
been over-ruled by the judgment in Ravinder Kaur Grewal’s case.

35
37. Contract of personal service and temporary injunction: An employee of a
private company cannot seek injunction under Order 39, rules 1&2 CPC
against his suspension as no civil suit is maintainable in relation to a contract
of personal service not enforceable u/s 14(b) of the Specific Relief Act, 1963.
See: Mahesh Chand Tyagi vs. Auric Styles Private Ltd., 1997 (29) ALR 258
(All).

38. Tender and temporary injunction: Where in a suit, there were strong
circumstances to show that the plaintiff was not competitively sound to make
competitive offer, it has been held that it was a good ground for not awarding
contract to him as no prima facie case was made out in favour of the plaintiff
and court was justified in not granting injunction in favour of the plaintiff.
See: Vikura Industries vs. G.M. Ordinance Factory, Kanpur, 2000 (3) AWC
2/31 (NOC) (All).

39. Damage to crops: Temporary injunction cannot be granted: Where a

brick kiln was situate near a mango grove, it has been held that if the damage
likely from the smoke of the brick kiln was only to the crops and not to the
trees or groves, the damages being ascertainable, interim injunction under
Order 39, rules 1 & 2 or u/s 151 CPC cannot be granted against running of
the brick kiln. See: Subhash Satya vs. Ram Narain, AIR 1994 All 120 (LB).

40. Eviction of tenant or lessee by landlord or lessor: Where plaintiff was a

lessee holding over and was in possession of the property for long and the
defendant lessor sought to evict the lessee forcibly after termination of the
lease , it has been held by the Allahabad High Court that the plaintiff could
be granted temporary injunction restraining the defendant from evicting the
plaintiff otherwise than in due course of law. See: Bhola Nath vs. Maharaj
Raja Saheb, Bundi State, AIR 1984 All 60.

40.1 Alteration/damage to building by tenant & injunction: If the tenant causes

any damage, alters materially, demolishes or destroys any portion of the
tenement, landlord cannot seek injunction against the tenant as the landlord
has got an alternative remedy against the tenant u/s 41(h) of the Specific
Relief Act, 1963 read with Order 39, rule 2, sub-rule 2, U.P. Amendment,
proviso, clause (a) CPC for the eviction of the tenant on aforesaid grounds.
See: Man Singh vs. Smt. Ganga Devi, 1982 All.L.J. 634 (All).

40.2 Public premises & injunction against eviction therefrom: A building

belonging to Govt. is a public premise u/s 2 of the U.P. Public Premises
(Eviction of Unauthorized Occupants) Act, 1972 and a retired Govt. Servant

36
 being an unauthorized occupant, cannot seek injunction against his eviction.
See: State of U.P. vs. Rooplal Sharma, 1997 (29) ALR 373 (SC).

42. Trademark & injunction: In case of use of a trade-name with deceptive

similarity under the provisions of Trade Marks Act, 1999 if once a case of
passing off is made out, the general practice to grant a prompt ex-parte
temporary injunction restraining the use of deceptive or identical trade-name
followed by appointment of a local commissioner has been held by the
Supreme Court as proper. See: Luxmi Kant V. Patel vs. Chetanbhat Shah,
2002 (46) ALR 324 (SC).

42.1 Trademark & injunction: Where there was common field of activity
between the two parties in respect of goods and trademarks sought to be used
by them were also identical and both the parties had applied for registration
of their respected trade u/s. 21(3) of the Trade and Merchandise Marks Act,
1958, it has been held by the Supreme Court that under the facts of the case
grant of interim injunction in favour of one of the parties was not proper. See:
Uniply Industries Ltd. vs. Unicorn Plywood Pvt. Ltd., AIR 2001 SC 2083.

42.2 Publication of article: In the case noted below, publication of an article in the
English news paper Indian Express was restrained by the lower court. The
Supreme Court while discontinuing the injunction order restraining
publication of the article held that continuation of injunction would amount
to interference with the freedom of press in the form of preventive injunction
and must therefore be based on reasonable grounds for the sole purpose of
keeping the administration of justice unimpaired. The article was allowed to
be published. See: Reliance Petrochemicals Ltd Vs. Proprietors of Indian
Express News Paper Bombay Pvt. Ltd., AIR 1989SC 190.

43. UPZA & LR Act, 1950 and UP Land Revenue Act, 1901 have been
repealed by the Uttar Pradesh Revenue Code, 2006 (UP Act No. 8 of
2012): The UPZA & LR Act, 1950 and the UP Land Revenue Act, 1901 and
30 other Acts relating to the lands and land revenue etc. in UP have now been
repealed by "The Uttar Pradesh Revenue Code, 2006" (UP Act No. 8 of
2012) = mRrj izns'k jktLo lafgrk] 2006.

43.1 Uttar Pradesh Revenue Code, 2006 has come into force w.e.f. 12.12.2012:
As per Section 1(3) of "The Uttar Pradesh Revenue Code, 2006", the said
Code shall come into force on such date as the State Government may, by
notification, appoint and different dates may be appointed for different areas
or for different provisions of this Code. The Uttar Pradesh Revenue Code,

37
 2006 has been assented to by the President of India on 29.11.2012 under
Article 201 of the Constitution. "The Uttar Pradesh Revenue Code, 2006"
has come into force vide UP Government's Notification No. -1044/79-V-1-
12-1(ka)33/06, Lucknow : dated December 12, 2012.

43.2 Section 229-B, 229-D, 331 of the UPZA & LR Act, 1950 and Power of
Civil Court to Grant Injunction: The UPZA & LR Act, 1950 and the UP
Land Revenue Act, 1901 and 30 other Acts relating to the lands and land
revenue etc. in UP have now been repealed by "The Uttar Pradesh Revenue
Code, 2006" (UP Act No. 8 of 2012) = mRrj izns'k jktLo lafgrk] 2006.

43.3 No injunction to plaintiff if his name is not recorded in the revenue

records over the agricultural land as its tenure holder: If the name of the
plaintiff is not recorded as tenure holder of the agricultural land in the
revenue records and question of declaration of title is involved, the
jurisdiction of the civil court to entertain injunction suit and grant interim
injunction would be barred u/s 331 of the U.P. Zamindari Abolition & Land
Reforms Act, 1951 as the civil court cannot direct for the expunction or
correction of the entries in revenue records and the same can be done only by
the revenue courts. The remedy of the plaintiff in respect of the agricultural
land under such facts and circumstances would be a suit for declaration of
title before the revenue court u/s 229-B of the UPZA & LR Act, 1951 and
interim injunction can also be granted by the revenue court u/s. 229-D of the
that Act. But where the name of the plaintiff is recorded in the revenue
records as tenure holder of the agricultural land and no question of
declaration of title is involved, the plaintiff can institute a suit in civil court
for injunction against the defendant for restraining him from transferring the
land, interfering with the possession of the plaintiff or demolishing any
constructions etc. on such land or cutting trees etc. standing thereon. See:
(i) Kamla Shankar vs. IIIrd ADJ, Mirzapur, 1998(89) R.D. 484 (All)
(ii) Magan Lal Chaturvedi vs. District Judge, Mathura, 1998 ALJ 2323
(All)
(iii) Deokinandan vs. Surajpal, 1996 ALJ 144 (SC)
(iv) Tej Bhan Singh vs. II ADJ, Jaunpur, 1995 ALJ 109 (All)
(v) Surya Narain Pandey vs. Addl. Civil Judge, Gyanpur, 1995 R.D. (H)
50 (All)
(vi) Jyoti Ram vs. District Judge, Saharanpur, 1995 RD 99 (All)
(vii) Tej Bhan Singh vs. IX ADJ, Jaunpur, 1994 R.D. 476 (All)
(viii) Indra Pal vs. Jagannath, 1993 ALJ 235 (All)
(ix) Bhagwat Prasad vs. Jitendra Narain, 1991 ALJ 971 (All)
(x) Chandra Deo Pathak vs. Swami Nath Pathak, 1987 R.D. 51 (All)
(xi) Vijai Singh vs. 2nd ADJ, Bulandshahr, 1982 ALJ 725 (All)

38
 (xii) 1980 R.D. 32 (Summary of Cases-43) (All—L.B.)
(xiii) Jai Singh vs. Hanumant Singh, 1979 ALJ 645 (All)
(xiv) Kishori Lal vs. Shambhoo Nath, 1978 ALJ 1273 (All)
(xv) Parsottam vs. Narottam, 1970 ALJ 505 (All—D.B.)

44. Cantonment Act, 1924 & injunction: Injunction cannot be granted to

protect any encroachment on any street or structure projecting into a drain
belonging to cantonment board otherwise the drains, streets and roads may
soon disappear. Injunction cannot be granted against the notice issued by the
cantonment board u/s 254(2) of the Cantonment Act, 1924 for demolition of
any unauthorized construction etc. See:
(i) Atul Kumar Jain vs. Cantonment Board, Meerut, AIR 2007 (NOC)
1499 (All)
(ii) Cantonment Board, Meerut vs. Narain Dass, AIR 1970 SC 105

45. Share Certificates & Injunction: The company recognizes no person except
one whose name is on the register of members, upon whom alone calls for
unpaid capital can be made and to whom only the dividend declared by the
company is legally payable. Of course, between the transferor and the
transferee, certain equities arise even on the execution and handing over of a
blank transfer, and among these equities is the right of the transferee to claim
the dividend declared and paid to the transferor who is treated as a trustee on
behalf of the transferee. These equities, however, do not touch the company,
and no claim by the transferee whose name is not in the register of members
can be made against the company, if the transferor retains the money in his
own hands and fails to pay it to him. The right of a transferee is only to call
upon the company to register his name and no more. No rights arise till such
registration takes place the completion of the transaction by having the name
entered in the register of members relates it back to the time when the
transfer was first made. So far as the question of rectification is concerned, it
is the company court alone which would have jurisdiction. But issues
regarding title or ownership etc. of the disputed shares will be decided by
civil court only. Power to refuse to register transfer of shares, without
assigning any reasons, or in the directors’ absolute and uncontrolled
discretion, is often found in the Articles of Association of a company. A
person aggrieved by the refusal to register transfer of shares has, since the
enactment of the Companies Act, 1956, two remedies for seeking relief under
the Companies Act; (1) to apply to the court for rectification of the register
u/s. 155 of the Companies Act, 1956, and (2) to appeal against the resolution
refusing to register the transfers u/s. 111 of the Companies Act, 1956.
Interpreting the provisions of Sec. 155 & 446 of the Companies Act, 1956, it
has been held by the Supreme Court (in AIR 1998 SC 3153) that the

39
 jurisdiction of the company court u/s. 155 of the Companies Act, 1956 is
summary in nature and the civil courts jurisdiction regarding rectification of
register of members is impliedly barred. See:
(i) Surendra Prakash Goyal vs. M/s. Goyal Industries Pvt. Ltd., 1980 Tax
L.R. 2007 (All)
(ii) M/s. A.S. Corporation (P) Ltd. vs. M/s. M.P. Containers Pvt. Ltd., AIR
1998 SC 3153
(iii) Life Insurance Corporation of India vs. Escorts Ltd. & others, AIR
1986 SC 1370
(iv) Harinagar Sugar Mills Ltd. vs. Shyam Sunder Jhunjhunwala, AIR
1961 SC 1669
(v) M/s. Howrah Trading Co. Ltd. vs. Commissioner of Income Tax,
Central, Calcutta, AIR 1959 SC 775

46. Scope of Order 39, rule 2-A CPC: In case of breach of temporary
injunction, court has power either to order detention of disobeying party or
attach his property. Both steps can be resorted to or one of them alone need
be chosen by court depending on facts in each case. See: Samee Khan vs.
Bindu Khan, AIR 1998 SC 2765.

46.1 Requisites to be proved under Order 39, rule 2-A CPC for holding the
contemnor guilty: In order to hold the defendant/contemnor liable under
Order 39, rule 2-A CPC, the following factors must be proved by the
plaintiff:
(i) That there was some injunction order passed by the Court.
(ii) That the injunction order was conveyed to or served on the
defendant/contemnor.
(iii) That the defendant/contemnor had time and means to obey the order.
(iv) That the disobedience or breach was deliberate and willful.

46.2 Violation of injunction must be proved to be willful to entail punishment

under Order 39, rule 2-A CPC: Violation of order of injunction, interim or
final, is serious matter. But unless there is clear evidence showing that the
party willfully violated the Court order, he cannot be punished under Order
39, rule 2-A CPC or under Order 21, rule 32(5) CPC. Allegation of breach of
injunction is in the nature of criminal liability and therefore has to be proved
to the satisfaction of the court that the disobedience was not mere a
disobedience but a willful disobedience. See:
(i) Ramasamy Vs. Venkatachalapathi, (2019) 3 SCC 544
(ii) U.C. Surendranath vs.Mambally Bakery, AIR 2019 SC 3799.

40
46.3 Liability for breach of temporary injunction when passed without
jurisdiction: A contemnor of breach of temporary injunction is liable to be
punished under Order 39, rule 2-A CPC even if the suit was not maintainable
and the interim injunction was passed without jurisdiction by the court or
when ultimately the suit was dismissed as not maintainable for want of
jurisdiction. See: Tayabbhai M. Bagasarwalla vs. Hind Rubber Industries
Pvt. Ltd., (1997) 3 SCC 443.

46.4 Contemnor of interim injunction can be punished under Order 39, rule
2-A CPC and not under the Contempt of Courts Act, 1971: Where an
injunction under Order 39, Rules 1 and 2 of the CPC is granted by a
subordinate Court, High Court cannot punish the contemnor. It is considered
a civil contempt punishable under O. 39, R. 2-A of the Code. It is outside the
purview of Section 2(b) of the Contempt of Courts Act, 1971 since the scope
of contempt of Court as contemplated under Order 39, R. 2-A(1) of CPC is
different and is narrower than the scope of civil contempt within the meaning
of Section 2(b) of the said Act, 1971. The provisions under Order. 39, R. 2-A
of CPC provides an elaborate and exhaustive provision for dealing with
breach of injunction order which is a serious matter since the Civil Court is
empowered to order to take away even the liberty of an individual by
detention of the person in a civil prison who has violated the order. So the
power is penal in nature and the burden is heavy on the person who alleges
disobedience to prove the ingredients of the offence beyond reasonable doubt
since there has to be a clear proof that the order so ordered was clear, distinct,
unambiguous and with full knowledge of the contemnor. See:
(i) Mgan Lal vs. Sajid Ali Khan, AIR 2019 (NOC) 567 (Allahabad).
(ii) AIR 2009 SC 2330.
(iii) AIR 1981 All 309.
(iv) Tapan Pal Vs. Pronab Pal, AIR 2019 Calcutta 139
(v) AIR 1982 Karnataka 182

46.5 Restoration of status quo ante: Where the defendant had demolished the
construction despite interim injunction issued by the court, it has been held
that the court can order for restoration of status quo ante. See: Satya Prakash
vs. Ist ADJ, Etawah, AIR 2002 All 198.

46.6 Liability of state for breach of temporary injunction: Officers of the state
breaching or disobeying the temporary injunction issued by court are liable to
be punished under Order 39, rule 2-A CPC. See: State of Bihar vs. Rani
Sonabati Kumari, AIR 1961 SC 221 (Five-Judge Bench).

41
46.7 Interim orders must be enforced: Interim orders of courts are an integral
element of judicial review. Interim directions issued on the basis of the prima
facie findings in a case are temporary arrangements till the matter is finally
decided. Interim orders ensure that the cause which is being agitated does not
become infructuous before the final hearing. The power of judicial review is
not only about the writs issued by superior courts or the striking down of
governmental action. Entrustment of judicial review is accompanied by a
duty to ensure that the judicial orders are complied with. Unless the orders
are enforced, citizens will lose faith in the efficacy of judicial review and in
the legal system that the faith of the citizens in the constitutional courts of the
country be maintained. See: K.S. Puttaswamy Vs. Union of India, (2019) 1
SCC 1 (Five - Judge Bench)(Para ZU).
46.8 Police aid for implementing temporary injunction & duty of court: Once
the court is satisfied that interim order passed by it is disobeyed, there could
be no justification for the court not to initiate proceedings for enforcement of
its order. Court cannot be merely a silent spectator while the order passed by
it is being violated with impunity and the party is left on the mercy of the so
called administration. It is not only an obligation but a solemn duty of the
court to enforce its order by all means and to ensure that the interim order
passed by it is complied with. To achieve the same, court should issue
necessary instructions to the police if facts so warrant. See:
(i) Board of Trustees of the Port of Mumbai Vs. Nikhil N. Gupta, (2015)
10 SCC 139.
(ii) Sree Ram vs. State Of U.P. 2011 (2) ALJ 187(All) (DB)
(iii) Smt. Jagannathiya vs. State of U.P., 2006 (64) ALR 330 (All) (DB)

Note: In the case of Smt. Jagannathiya, notedabove, the Division Bench of

the Allahabad High Court directed the civil court, Kaushambi to issue
necessary orders to the Superintendent of Police, Kaushambi to take all
measures to ensure compliance of the interim order passed by it at the
earliest. The following rulings have been relied upon by the Division Bench
in the case of Smt. Jagannathiya
(i) Rameshwarlal vs. Municipal Council, Tonk, (1996) 6 SCC 100
(ii) K.L. Viramani vs. III ADJ, 1992 (20) ALR 1065 (All)
(iii) State of Bihar vs. Rani Sonabati Kumari, AIR 1961 SC 221
(iv) Kochira Krishnan vs. Joseph Desouza, AIR 1986 Kerala 63
(v) Sita Ram vs. Ganesh Das, AIR 1973 All 449
(vi) Samee Khan vs. Bindu Khan, AIR 1998 SC 2765

46.9 Order 39, rule 2-A CPC & Contempt of Courts Act, 1971: Scope and
applicability: In case of disobedience of interim injunction orders, it has
been held by the Division Bench of the Allahabad High Court that the

42
 provision of O. 39, Rule 2-A CPC prevails over the provisions of Contempt
of Courts Act, 1971. See:
(i) Smt. Jagannathiya vs. State of U.P., 2006 (64) ALR 330 (All) (DB)
(ii) Dr. Alka Jaiswal Vs Fr. I. Farnandes, 1986 ALJ 133(All)
(iii) Anis Ahmad Khan Vs. State of UP, 1985 ALJ 30 (All)

46.10 Contempt of Court Act, 1971 not to apply when specific provisions for
the same are available in CPC: Normally, the general provisions made
under the Contempt of Courts Act are not invoked by the High Courts for
forcing a party to obey orders passed by its subordinate courts for the simple
reason that there are provisions contained in Code of Civil Procedure, 1908
to get executed its orders and decrees. It is settled principle of law that where
there are special law and general law, the provisions of special law would
prevail over general law. As such, in normal circumstances a decree holder
cannot take recourse of Contempt of Court Act else it is sure to throw open a
floodgate of litigation under contempt jurisdiction. It is not the object of the
Contempt of Courts Act to make decree holders rush to the High Courts
simply for the reason that the decree passed by the subordinate court is not
obeyed. See : E. Bapanaiah Vs. K. S. Raju, 2015 CrLJ 567 (SC).

46.11 Contempt of Courts Act, 1971 applies to breach of injunction despite the
remedy under order 39, rule 2-A CPC: Section 22 of Contempt of Courts
Act, 1971 provides that right to proceed under the said Act is an additional
right. Besides, power of High Court in respect of contempt stems not only
from Contempt of Courts Act, 1971 but also from Article 215 of the
Constitution of India. The said power under Article 215 cannot be abridged
or abrogated or cut down or controlled or limited by any statute or rules or
provision of CPC. Further, in view of Section 122 CPC, in case of any
conflict between provisions of CPC and rules framed by High Court, the
latter will prevail. Provisions of Order 39, rule 2-A CPC cannot override said
rules. Dismissal of contempt petition by High Court on ground that in view
of specific remedy being available under Order 39, rule 2-A CPC to meet the
contingency of breach of injunction orders, person complaining of breach of
injunction order should not be allowed to take up proceedings under
Contempt of Courts Act, 1971, was not proper. A party committing breach
of any order of court, whether interlocutory or final, is liable to be proceeded
against in respect of Contempt of Court. See : Welset Engineers & Another
Vs. Vikas Auto Industries & Others, (2015) 10 SCC 609.

46.12 Appeal against an order passed under Order 39, rule 2-A CPC: An order
passed by trial court u/o 39, r. 2-A CPC is appellable u/o 43, rule 1 (r) CPC.

43
 Such an appeal must be decided by the appellate court on its merits. See: G.
Kamala Rao vs. K. Jawahar Reddy, (2000) 9 SCC 231.

46.13 Tribunals have power to punish for contempt: Tribunals have power to
punish for contempt of Court. See: Madras Bar Association Vs. Union of
India, (2015) 8 SCC 583 (Five-Judge Bench).

46.14 Labour Court's decision not to be treated as Precedent: Labour Court is

not a Court of record hence creates no precedents. See: Rahimuddin & Others
Vs. Gossini Fashions Ltd., 2012 (2) SLJ 487 (Delhi High Court).

47. Temporary injunction against exhibition of T.V. serial held improper:

Where interim injunction was granted by court against the exhibition of
certain episodes of a T.V. serial entitled “Honi Anhoni”, the Supreme Court
interpreting the provisions of Order 39, r. 1 & 2 CPC, Article 19(1)(a) of the
Constitution and the provisions of Cinematograph Act, 1952, has held that as
no prima facie evidence was produced to show that the exhibition of the
serial was prejudicial to certain community or likely to cause any grave
prejudice to public generally or endanger public morality and therefore the
grant of interim injunction against the exhibition of the serial was held
improper. See: Odyssey Communications Pvt. Ltd. vs. Lokvidayan
Sabnghatana, AIR 1988 SC 1642

48. Election and Temporary Injunction: (See-- Order 39, rule 2, sub-rule 2,
U.P. Amendment, Proviso, clause (e) CPC): Once the electoral process has
commenced, there can be no judicial interference by courts into it and no
interim relief can be granted in relation thereto. Order 39, rule 2, sub-rule 2,
U.P. Amendment, Proviso, clause (e) CPC also bars grant of interim
injunction restraining any election. See:
(i) Swami Prakasananda vs. State of Kerala, 2006 (65) ALR 617 (SC)
(ii) Buddula Krishnaiah vs. State Election Commissioner A.P., AIR 1996
SC 1595
(iii) Mohinder Singh Gill vs. Chief Election Commissioner, AIR 1978 SC
851

48.1 Courts not to interfere in the election process during the mid of the
elections: Once an election process has been set in motion, though the High
Court may entertain or may have already entertained a writ petition under
Article 226 of the Constitution, it would not be justified in interfering with
the election process giving direction to the election officer to stall the
proceedings or to conduct the election process afresh particularly when the
election has already been held in which the voters were allegedly prevented

44
 to exercise their franchise as that dispute is covered by an election dispute
and remedy is thus available at law for redressal. In the circumstances, the
order passed by the High Court giving direction not to declare the result of
the election or to conduct fresh poll for 20 persons, though the writ petition
is maintainable, would be illegal. The High Court, pending writ petition,
would not be justified in issuing direction to stall the election process. See :
(i) Boddula Krishnaiah Vs. State Election Commissioner, A.P., AIR 1996
SC 1595 (Three-Judge Bench) (paras 11 & 12)
(ii) Lakshmi Charan Sen Vs. A. K. M. Hassan Uzzaman, AIR 1985 SC
1233 (Five-Judge Bench)(para 28)
(iii) State of U. P. Vs. Pradhan Sangh Kshettra samiti, (1995) Supp (2) SCC
305 (at page 331)

49. Grant of interim injunction during stay of proceedings of suit: An

interlocutory application or interim injunction application can be entertained
and interim injunction can be granted under Order 39, rules 1 & 2 CPC or u/s
151 CPC during the period of stay (including stay of suit u/s 10 CPC) of suit if
it does not affect the final decision of the suit on merits. See:
(i) Rameshwar vs. V ADJ, Basti, 1999 ALJ 22 (All)
(ii) Indian Bank vs. Maharashtra State Co-operative Marketing Federation
Ltd., AIR 1998 SC 1952
(iii) Radha Rani Cold Storage Pvt. Ltd. Vs. UP State Cold Storage Tribunal
& Others, 2009 (27) LCD 1391(All…D.B.)
(iv) Mool Chand Yadav Vs. Raza Buland Sugar Company Limited,
Rampur, 1982 (3) SCC 484
(v) Daroga & Another Vs. Commissioner, Gorakhpur & Others, 1996 (14)
LCD 506 (All) (D.B.)

49.1 Grant of interim injunction u/s 151 CPC during stay of proceedings of
suit: U/s 151 CPC, civil court can in exercise of its inherent powers grant
interim injunction even during the period of stay of the proceedings by the
superior court. See: Breach Candy Swimming Bath Trust Vs. Dipesh Mehta,
AIR 2016 (NOC) 167 (Bombay).

50. Religious matters and injunction: Where a group of Muslims was prevented
by other Muslims from loudly uttering “Aameen” in mosque, it has been
held by the Allahabad High Court that a Musalman is entitled to enter a
mosque dedicated to God and in the prayers utter the word “Aameen” loudly
but not with a malafide intention to disturb the peace of the congregation and
grant of injunction in such religious matters has been held proper. See: Syed
Farzand Ali vs. Nasir Beg, AIR 1980 All 342

45
 50.1 Worship of deity and interim injunction: Where a suit was filed to restrain
defendants from using land belonging to a deity by plaintiff as representing
the worshippers of the deity in the temple under Order 1, rule 8 CPC after
obtaining permission from court which was given after notice and contest, the
suit would be maintainable at the instance of the plaintiff when the
defendants failed to prove that the plaintiffs were Arya Samajists, i.e., non-
believers in worship of deity and the plaintiffs were descendants of persons
who had constructed the temple for the idol. Case law discussed. See: Vidya
Sagar Sharma Vs. Anand Swarup Dublish, AIR 1981 All 106
50.2 Injunction can be granted to perform "pooja" in a temple: Where the
dispute in a civil suit was in relation to a temple and the plaintiff had sought
interim injunction against the defendant restraining him from interfering in
the plaintiff's right to perform pooja in the temple, it has been held that if the
plaintiff was the the true owner of the property as claimed by him, he can
claim injunction against the defendant even if he was not performing pooja at
the relevant time. See: Bhairab Dutt Vs. Bala Dutt Bhatt, 2011(114) RD
199(Uttarakhand).

50.3 Mahanthship though a legal right but not heritable like ordinary
property: In the conception of Mahantship, as in shebaitship, both the
elements of office and property of duties and personal interest are blended
together and neither can be detached from the other. The personal or beneficial
interest of the Mahant in the endowments attached to an institution is
manifested in his large powers of disposal and administration and his right to
create derivative tenures in respect to endowed properties and these and other
rights of a similar character invest the office of the Mahant with the character
of proprietary right which, though anomalous to some extent, is still a genuine
legal right. However, the Mahantiship is not heritable like ordinary property.
See : The Commissioner, Hindu Religious Endowments, Madras Vs. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 (Seven-
Judge Bench)(para 11).

50.4 Civil and revenue courts have no jurisdiction in respect of waqf property:
In view of the provisions of the Waqf Act, 1995 as amended by Act of 2013,
Civil and Revenue Courts have no jurisdiction to decide suits in respect of the
waqf property. See: Lal Shah Baba Dargah Trust Vs. Magnum Developers,
AIR 2016 SC 381.

50.5 Civil court has jurisdiction to decide the suit if the plaintiff has not claimed
any personal right in the waqf property: In the case noted below, the issue
before the court was whether the disputed properties were properties of the
Dargah or not and not whether the properties were the waqf properties or not.

46
 The Supreme Court held that as the plaintiffs were not claiming any personal
right in the disputed properties but only rights of management over the
properties of the Dargah, the civil court had jurisdiction to decide the suit. See:
Sopanrao vs. Syed Mehmood, AIR 2019 SC 3113(Three-Judge Bench).

51. Invoking Bank Guarantee and Injunction: Court cannot restrain from
invoking bank guarantee given under a contract of supply of goods. See: The
State Trading Corporation of India Ltd. Vs. Jainsons Clothing Corporation, AIR
1994 SC 2778.

52. Anti-Suit Injunction: Principles governing grant of injunction under Order 39,
rules 1 & 2 CPC apply in relating to anti-suit injunctions also. It is well settled
principle that by agreement the parties cannot confer jurisdiction, where none
exists on a Court to which CPC applies, but this principle does not apply when
the parties agree to submit to the exclusive or non-exclusive jurisdiction of a
foreign Court; indeed in such cases the English Courts do permit invoking their
jurisdiction. Thus, it is clear that the parties to a contract may agree to have
their disputes resolved by a Foreign Court termed as a ‘neutral Court’ or ‘Court
of choice’ creating exclusive or non-exclusive jurisdiction in it. See: Modi
Entertainment Network vs. W.S.G. Cricket Pte. Ltd., AIR 2003 SC 1177

53.Restraining public servant from exercising his powers under law: No

injunction can be granted to restrain a public servant from exercising his powers
for doing some act for which he is otherwise empowered by some law to do.
See:
(i) Rajendra Kumar Singh vs. Munsif Kashipur Nainital, 1997(15) LCD 552
(All)—Case of grant of permit under MV Act, 1988
(ii) Cotton Corporation of India Ltd. vs. United Industrial Bank Ltd., AIR
1983 SC 1272—Case of T.I. restraining institution of proceeding in court.

54.Recovery of public dues and loans by financial institutions: (Order 39, rule 2,
sub-rule 2, U.P. Amendment, proviso, clause (g) CPC): No injunction can be
granted to restrain recovery of public dues like electric bill, telephone bill, taxes,
land revenue, bank loans or any other loans taken from financial institutions. See:
(i) Balram vs. State of U.P., 2002 (47) ALR 30 (All) (D.B.)
(ii) M/s Chandranand Packaging vs. U.P. Financial Corporation, ALR 1996
(27) 173 (All) (UPFC Loan)
(iii) Union of India vs. Shree Ganesh Steel Rolling Mills Ltd., 1996 (2)
CCC 225 (SC) (Revenue Dues)
(iv) Pawan Kumar Jain vs. I and I Corporation of U.P. Ltd., AIR 1998 All.
57 (Dues of financial corporation)

47
 (v) Mahesh Chandra vs. Zila Panchayat, Mainpuri, AIR 1997 All. 248
(Arrears recoverable as land revenue)
(vi) U.P. State Industrial Development Corporation Ltd. vs. C.R. Newar,
(1995) JCLR 27 All. (Industrial Loan)
(vii) Guru Nanak Beverages and Comp. vs. D.M., Allahabad, AWC 1996
All. 653 (Bank Loan)
(viii) Radha Krishna Bhatt vs. State of U.P., 1992 RD 1 (All.) (Recovery of
forest dues)

54.1 Disconnection of electricity and injunction: Where interim prohibitory

injunction was sought for by the plaintiff in a suit for injunction only for
restraining the electricity board from effecting disconnection without seeking
declaration of non-liability of dues, it has been held by the Allahabad High
Court that the suit was not maintainable and injunction against disconnection
of supply of electricity could not be granted. See:
(i) M/s. Geeta Pump (P) Ltd. vs. District Judge, Saharanpur, AIR 2000 All
58
(ii) M/s. Pilibhit Ispat (P) Ltd. vs. U.P. State Electricity Board, AIR 1996 All
329 (D.B.)
(iii) Sir Shadi Lal Enterprises Ltd. vs. State of U.P., 1995 ALJ 1517
(All)(D.B.)
(iv) Debi Dayal vs. U.P. State Electricity Board, 1988 Civil Law Journal 266
(All)
Note: Injunction against disconnection of supply of electricity cannot be
granted in view of the provisions u/s 4 & 5 of the U.P. Government
Electrical Under Taking (Dues Recovery) Act, 1958.

54.2 Bar of Section 145 of Electricity Act, 2003 against grant of Temporary
Injunction: According to Section 145 of the Electricity Act, 2003, no civil
court have jurisdiction to entertain any suit or proceeding in respect of any
matter which an assessing officer referred to in Section 126 or an appellate
authority referred to in Section 127 or the adjudicating officer appointed
under this Act is empowered by or under this Act to determine and no
injunction shall be granted by any court or other authority in respect of any
action taken or to be taken in pursuance of any power conferred by or under
this Act.

55. Appeal against order granting interim injunction: An appeal under Order
43, rule 1 (r) CPC lies against an order passed by court u/s 104 CPC r/w Order
39, rules 1 & 2, rule 2-A, rule 4 & rule 10 CPC. It cannot be contended that
the power to pass interim ex-parte orders of injunction does not emanate from
Order 39, rule 1. In fact, the said rule is the repository of the power to grant

48
 orders of temporary injunction with or without notice, interim or temporary,
or till further orders or till the disposal of the suit. Hence, any order passed in
exercise of the aforesaid powers in rule 1 would be appeallable as indicated in
Order 43 Rule 1 of the Code. The choice is for the party affected by the order
either to move the appellate Court or to approach the same Court which
passed the ex-parte order for any relief. See: A. Venkatasubbiah Naidu vs. S.
Chellappan, AIR 2000 SC 3032

55.1 Appeal does not lie against an order granting ex-parte temporary
injunction u/s 151 CPC: Appeal does not lie against an order granting ex-
parte temporary injunction u/s 151 CPC. See: Zila Parishad, Budaun Vs.
Brahma Rishi Sharma, AIR 1970 All 376 (Full Bench)
55.2 Appeal against an order passed under Order 39, rule 2-A CPC: An order
passed by trial court under Order 39, rule 2-A CPC is appellable under Order
43, rule 1 (r) CPC. Such an appeal must be decided by the appellate court on
its merits. See: G. Kamala Rao vs. K. Jawahar Reddy, (2000) 9 SCC 231.

56. Revision u/s 115 CPC against issue of notice under Order 39, rule 3 CPC:
Revision u/s 115 CPC against issue of notice by court under Order 39, rule 3
CPC is not maintainable. See:
(i) Lucknow Diocesan Trust Assn. vs. Sri B.C. Jain & others, 2006 (1)
ARC 153 (All)
(ii) Col. Anil Kak (Retd.) vs. Municipal Corp., Indore, 2006 (1) ARC 39
(SC)
(iii) Bhagwati Pd. Lohar vs. State of U.P., 2005 (99) RD 333 (All)
(iv) Gayatri Devi vs. Shashi Pal Singh, 2005 (1) SCJ 637
(v) Yashwant Sakhalkar vs. Hirabat Kamat Mhamai, (2004)6 SCC 71
(vi) Suryadeo Rai vs. Ram Chander Rai, (2003) 6 SCC 675
(vii) Rajendra Singh vs. Sri Brij Mohan Agarwal, 2003(1) ARC 270 (All)
(viii) Shiv Shakti Co-operative Housing Society vs. Swaraj Developers,
(2003) 6 SCC 659
(ix) Ravinder Kaur vs. Ashok Kumar, (2003) 8 SCC 289
(x) United India Insurance Co. Ltd. vs. Rajendra Singh, AIR 2000 SC 1165
(xi) Rajbir Singh vs. VII ADJ, Muzaffarnagar, 1998 RD 483 (All)
(xii) S.P. Chengal Varaya Naidu vs. Jagannath, AIR 1994 SC 853

Note: In compliance with the order of Hon’ble Allahabad High Court passed
in writ petition no. 802 (M/s) of 2007, Lalit Mohan Srivastava vs. Distt.
Judge, Ambedkar Nagar & others, C.L. No. 18/2007, dated 11.5.2007 and
the C.L. No. 15/Admin ‘G’ 2006, dated 3.5.2006 in compliance with the
directions issued in the case of Bhagwati Pd. Lohar vs. State of U.P., 2005
(99) RD 333 (All) circulated amongst the judicial officers of the State of U.P.

49
directs that revision u/s. 115 CPC against issue of notice u/o 39, r. 1, 2, 3
CPC being interlocutory is not maintainable.

******

50
 vUrfje fu"ks/kkKk ds uewuk vkns'k
Model Temporary Injunction Orders

1. vkns'k 39] fu;e 3 lhihlh ds vUrxZr flfoy U;k;ky; }kjk ikfjr

,di{kh; vUrfje O;kns'k dk uewuk
Ex parte ad interim injunction order under Order 39, rule 3
CPC
2. fu"ks/kkKk izkFkZuk&i= ij ,dIk{kh; vLFkk;h O;kns'k tkjh djus ds
ctk; izfroknhx.k dks uksfVl tkjh djuk
Issuing notice to defendants instead of passing ex parte ad
interim injunction under Order 39, rule 3 CPC
3. ,di{kh; fu"ks/kkKk izkFkZuk i= ij vkns'k tc ewyokn LFkk;h
U;k;ky; ls vUrfjr gksdj mlh fnu izkIr gqvk gks
Ex parte ad interim injunction when suit has been received by
transfer on its date of institution
4. ;FkkfLFkfr cuk;s j[kus grq ,di{kh; vLFkk;h O;kns'k
Ex parte temporary injunction to maintain status quo
5. fdjk;snkj dh csn[kyh ds fo:) ,di{kh; vLFkk;h O;kns'k
Ex parte ad interim injunction against forcible eviction of
tenant
6. tc ,di{kh; vLFkk;h O;kns'k fiNyh frfFk vFkok frfFk;ksa ij
foLrkfjr ugha fd;k x;k gks
Order when ex parte ad interim injunction discontinued due to
non-extension on previous date/ dates
7. mHk;i{k dh lquokbZ ds mijkUr xq.knks"k ds vk/kkj ij fu"ks/kkKk
izkFkZuk i= dk fuLrkj.k
Disposal of Interim Injunction Application on merits after
hearing both the parties

51
 ¼1½

¼vkns'k 39] fu;e 3 lhihlh ds vUrxZr flfoy U;k;ky; }kjk ikfjr

,di{kh; vUrfje O;kns'k dk uewuk½
U;k;ky; vij flfoy tt ¼twfu;j fMohtu½] d{k la[;k&28] bykgkckn
ewyokn la[;k% 218@2020

jke izrki flag ,oa vU; ---------------------------------------------------------------------------------------------------------oknhx.k

izfr

lqjs'k izrki flag ,oa vU;-------------------------------------------------------------------------------------------------izfroknhx.k

vkns'k
20-09-2020

oknhx.k jke izrki flag vkfn }kjk orZeku ewyokn LFkk;h fu"ks/kkKk gsrq izLrqr fd;k
x;k gSA oknhx.k us vkns'k 39] fu;e 1 o 2 lhihlh ds vUrxZr izkFkZuki= 6x2 bl vk'k;
dk izLrqr fd;k gS fd U;k;ky; izfroknhx.k ds fo:) ,di{kh; vUrfje fu"ks/kkRed O;kns'k
tkjh djsA oknhx.k ds fo}ku vf/koDrk dks lquk rFkk i=koyh dk voyksdu fd;kA

okni= rFkk vUrfje O;kns'k izkFkZuki= 6x2 e; 'kiFki= 7x2 esa oknhx.k dk dFku
gS fd oknhx.k fookfnr Hkwfe [kljk la[;k% 108] {ks=Qy% 8 fcLok] fLFkr xzke% QkQkeÅ]
tuin% bykgkckn ds Hkwfe/kj] Lokehx.k o v/;klhx.k gSa rFkk fookfnr Hkwfe ij mudk uke
jktLo vfHkys[kksa esa Hkwfe/kj ds :i esa v|ru vafdr gSA izfroknhx.k dk fookfnr Hkwfe esa
dksbZ vf/kdkj] v/;klu o lEcU/k ugha gSA fookfnr Hkwfe ij oknhx.k us fiNys yxHkx 10
o"kksaZ ls viuk V~;wcosy yxk j[kk gS rFkk fookfnr Hkwfe ds mRrj dh vksj viuh mijksDr
Hkwfe ds vUnj gh fdukjs ij iDdh ukyh cuok j[kh gS ftlls oknhx.k vius V~;wcosy dk
ikuh vius [ksrksa dh flapkbZ ds fy, ys tkrs gSaA izfroknhx.k oknhx.k dh mijksDr Hkwfe esa
fLFkr mDr ukyh dks /oLr djds mlds vUrxZr vkus okyh oknh dh Hkwfe dks ikl esa gh
fLFkr vius [ksr [kljk la[;k% 140 esa feyk ysuk pkgrs gSa vkSj blds fy, izfroknhx.k us
fnukad 12-09-2020 dks vkSj mlds ckn ls yxkrkj Lo;a rFkk vius etnwjksa ds lkFk oknhx.k
dh mijksDr Hkwfe ij vkdj iz'uxr ukyh dks /oLr djus dk iz;kl dj jgs gSa ftls
oknhx.k us vius dfri; xzkeokfl;ksa ds lg;ksx ls foQy dj fn;k ijUrq izfroknhx.k vHkh
Hkh mDr ukyh dks /oLr djds mlds vUrxZr vkus okyh oknhx.k dh Hkwfe dks vius [ksr esa
feyk ysus dh /kedh ns jgs gSa ftls fuf"k) fd, tkus gsrq oknhx.k us orZeku ewyokn okLrs

52
LFkk;h fu"ks/kkRed O;kns'k ;ksftr fd;k gSA lwphi= 10x2 ds ek/;e ls oknhx.k us fookfnr
Hkwfe dk v|ru [kljk o [krkSuh dkxt la[;k% 11x2 o 12x2 izLrqr fd;k gSA

oknhx.k us fookfnr Hkwfe [kljk la[;k% 108 rFkk mleas mRrj dh vksj fLFkr ikuh
dh iz'uxr ukyh ij vius v/;klu ds leFkZu esa viuk 'kiFki= 7x2 izLrqr fd;k gSA
fookfnr Hkwfe ij vius v/;klu ds leFkZu esa oknhx.k us [kljk dkxt la[;k% 11x2 Hkh
izLrqr fd;k gSA vr,o oknhx.k ds i{k esa ,di{kh; fu"ks/kkKk gsrq izFke n`"V;k dsl fo|eku
gSA izfroknhx.k }kjk fookfnr ukyh /oLr dj fn, tkus ls oknhx.k dks u dsoy viw.kZuh;
{kfr dkfjr gksxh vfirq orZeku ewyokn o fu"ks/kkKk izkFkZuki= dk mn~ns'; Hkh fu"Qy gks
tkosxkA mijksDr rF;ksa ,oa ifjfLFkfr;ksa esa lqfo/kk dk larqyu Hkh oknhx.k ds i{k esa gSA
vr~,o vUrfje O;kns'k izkFkZuki= 6x2 ds fo:) vkifRr vkeaf=r djrs gq, izfroknhx.k dks
fnukWad 27-09-2020 ds fy, vkns'k okgd ds ek/;e ls uksfVl okLrs vkifRr rFkk 6x2 dh
lquokbZ ds fy;s tkjh gSA bl chp fu;r frfFk 27-09-2020 rd iz'uxr ukyh dks /oLr
djus ls izfroknhx.k dks fuf"k) fd;k tkrk gSA oknhx.k vkns'k 39] fu;e 3 lhihlh ds
izko/kkuksa dk vuqikyu djuk vfoyEc lqfuf'pr djsaA i=koyh fu;r frfFk 27-09-2020 dks
okLrs vkifRr o lquokbZ 6x2 izLrqr gksA

vij flfoy tt ¼twfu;j fMohtu½

d{k la[;k&28] bykgkckn

53
 (1)

(Ex- parte ad interim injunction order under Order 39, rule 3 CPC)

OS No. 218/2020

Ram Pratap Singh & Others…………………………………………..………………Plaintiffs

Versus

Suresh Pratap Singh & Others ……………………...………………………………Defendants

ORDER

20.09.2020

Plaintiffs Ram Pratap Singh and others have instituted the present suit seeking permanent
injunction and have moved application 6C2 under order 39, rules 1 and 2 CPC seeking ex parte ad
interim injunction against the defendants. Heard the learned counsel for the plaintiffs and perused
the record.

As stated in the plaint, interim injunction application 6C2 and the accompanying affidavit
7C2, plaintiffs are the Bhumidhars and owners in possession of the disputed agricultural land
bearing khasra No. 108, measuring 8 viswas, situate in village: Phaphamau, district: Allahabad
and their names are recorded as such in the revenue records. Defendants have no right or
possession over the land in dispute. The plaintiffs have installed a tube well on their said land for
the last ten years and have got a drainage constructed towards north of their said land for
irrigating their fields. Defendants are threatening to dismantle the aforesaid drainage of the
plaintiffs and annex its land to their adjoining khasra No. 140 and have ever since 12.09.2020
attempting to dismantle the said drainage with the help of their labourers. The plaintiffs have
somehow managed not to allow the defendants to succeed in their said attempt but they are
throughout threatening to dismantle the aforesaid drainage and annex its land to their adjoining
field. The plaintiffs have filed up-to-date khasra and khatauni paper numbers 11C2 and 12C2 of
the disputed land vide list 10C2 and affidavit 7C2 in support of their aforesaid statements which
go to show a prima facie case in favour of the plaintiffs. In case an ex parte ad interim injunction
is not granted, then not only the very object of the suit and the injunction application will stand
frustrated but irreparable injury would also be caused to the plaintiffs. In view of the above facts
and circumstances of the case, balance of convenience is also found to be in favour of the
plaintiffs. So issue notice to the defendants inviting objections by fixing 27.09.2020 for hearing
on 6C2. The defendants are meanwhile restrained up to 27.09.2020 from dismantling the said
drainage and annexing the plaintiffs’ land to their adjoining field. Plaintiffs are directed to comply
with the provisions of the Proviso to rule 3 of Order 39 CPC forthwith.

Addl. Civil Judge (Junior Division)

Court No. 28, Allahabad

54
 ¼2½

¼fu"ks/kkKk izkFkZuk&i= ij ,dIk{kh; vLFkk;h O;kns'k tkjh djus ds ctk; izfroknhx.k dks
uksfVl tkjh djuk½

20-09-2020% oknh }kjk orZeku ewyokn iz;kxjkt fodkl izkf/kdj.k] iz;kxjkt ,oa vU; ds
fo:) LFkk;h fu"ks/kkRed O;kns'k ds fy, ;ksftr fd;k x;k gSA oknh us vkns'k
39] fu;e 3 lhihlh ds varxZr izkFkZuk&i= 9x2 izLrqr djds izfroknhx.k ds
fo:) ,di{kh; vLFkk;h O;kns'k tkjh djus dk vuqjks/k fd;k gSA oknh ds
vf/koDrk dks lquk rFkk i=koyh dk ifj'khyu fd;kA

okn&i=] fu"ks/kkKk izkFkZuk&i= 6x2 ,oa mlds leFkZu esa izLrqr fd;s x;s
'kiFk&i= 7x2 esa oknh dk dFku gS fd oknh us fookfnr Hkwfe xkVk la0&26]
{ks=Qy 200 oxZehVj] fLFkr dLck% >walh] rglhy% lnj] tuin% iz;kxjkt
fnukad 16-07-2017 dks iathd`r foØ; i= ds ek/;e ls mlds iwoZ Lokeh jes'k
pUnz ls Ø; fd;k Fkk vkSj rc ls oknh mDr Hkwfe ij mlds ,dek= Lokeh ds
:Ik esa dkfct gSA oknh us tc fiNys fnuksa viuh mDr Hkwfe ij edku cukus ds
fy, uhao dh [kqnkbZ djokuk izkjEHk fd;k rks iz;kxjkt fodkl izkf/kdj.k]
Ikz;kxjkt ds vf/kdkfj;ksa vkSj deZpkfj;ksa us ekSds ij vkdj oknh }kjk djok;s
tk jgs uhao dh [kqnkbZ ds dk;Z dks :dok fn;k vkSj rc ls oknh dks uhao dh
[kqnkbZ vkSj fuekZ.k dk;Z ugha djus ns jgs gSa tcfd izfroknhx.k dk mDr Hkwfe esa
dksbZ fof/kd vf/kdkj vFkok LokfeRo ugha gSA oknh us izkFkZuk&i= 9x2 izLrqr
djds vuqjks/k fd;k gS fd izzfroknhx.k ds fo:) ,dIk{kh; :Ik ls vLFkk;h
fu"ks/kkKk tkjh djrs gq, mUgsa fuf"k) fd;k tkos fd izfroknhx.k oknh }kjk mDr
Hkwfe esa djk;s tk jgs uhao dh [kqnkbZ rFkk edku fuekZ.k ds dk;Z esa gLr{ksi ugha
djsaA oknh us lwph i= 8x2 ds ek/;e ls mijksDRk foØ; Ik= dh izekf.kr izfr
izLrqr dh gS ftlls Li"V gksrk gS fd oknh us mDRk Hkwfe mlds iwoZ Lokeh jes'k
pUnz ls Ø; fd;k FkkA oknh dh vksj ls bl vk'k; dk dksbZ izek.k izLrqr ugha
fd;k x;k gS ftlls Li"V gksrk gks fd oknh us mDr Hkwfe ij edku cukus ds
fy, uhao dh [kqnkbZ rFkk fuekZ.k dk;Z izkjEHk djus ls iwoZ iz;kxjkt fodkl
izkf/kdj.k] Ikz;kxjkt ls uD'kk ikl djok;k gks vFkok mlls vuqefr izkIr dh
gksA okn ds rF;ksa o ifjfLFkfr;ksa esa oknh ds i{k esa izFke n`"V;k dsl rFkk
lqfo/kk dk larqyu tSls rF; fo|eku ugha gSa vkSj ,di{kh; :Ik ls vLFkk;h
fu"ks/kkKk tkjh ugha fd;s tkus dh n'kk esa oknh dks viw.kZuh; {kfr dkfjr gksus
dh Hkh laHkkouk ugha gSA mijksDr rF;ksa o ifjfLFkfr;ksa esa izfroknhx.k dks vkifRr
o lquokbZ dk volj fn;s fcuk ,di{kh; :Ik ls oknh ds i{k esa vLFkk;h
fu"ks/kkKk ikfjr fd;s tkus gsrq larks"kizn vk/kkj miyC/k ugha gSaA vr,o fnukad
26-09-2020 dh frfFk fu"ks/kkKk izkFkZuk i= 6x2 ds fo:) izfroknhx.k dh
vkifRr ,oa lquokbZ gsrq fu;r djrs gq, izfroknhx.k dks vkns'k okgd ds ek/;e
ls uksfVlsa tkjh gksaA oknh vko';d iSjoh vfoyEc iwjh djsA izkFkZuk i= 9x2
rn~uqlkj fuLrkfjr fd;k tkrk gSA

55
 vij flfoy tt ¼twfu;j fMohtu½
d{k la[;k&28] bykgkckn

(2)

(Issuing notice to defendants instead of passing ex- parte ad interim injunction

under Order 39, rule 3 CPC )
20.09.2020: Plaintiff has instituted the present suit for permanent prohibitory injunction against
the defendants. By means of application 9C2 moved under Order 39, rule 3 CPC,
plaintiff has sought for ex parte ad interim injunction against the defendants. Heard
the learned counsel for the plaintiff and perused the record.

As stated by the plaintiff in the plaint, temporary injunction application 6C2 and
the accompanying affidavit 7C2, plaintiff had purchased the disputed plot bearing
Gata No. 26, measuring 200 sq. meters, situated in Town: Jhunsi, Tehsil: Sadar,
District: Prayagraj from its erstwhile owner Ramesh Chandra by means of
registered sale deed dated 16.07.2017 and since then plaintiff alone is in
possession of the said land as its sole owner. A few days back, when the plaintiff
was digging in the said land for laying foundation and construction of his house,
officers of the Prayagraj Development Authority, Prayagraj appeared on the spot
and stopped the digging of foundation and since then they are not allowing the
plaintiff to carry out his said work of foundation and construction of his house.
Plaintiff has prayed for issuing ex parte ad interim injunction against the
defendants restraining them from interfering in the digging of the foundation for
construction of his house on his aforesaid land. Plaintiff has filed a certified copy
of the aforesaid sale deed vide list 8C2 which reveals that he had purchased the
said land from its previous owner Ramesh Chandra. Plaintiff has not produced any
document to show that he had got the map sanctioned or obtained the permission
of the Prayagraj Development Authority, Prayagraj before starting digging of
foundation for construction of his house on the said land. No prima facie case and
balance of convenience are thus found to be existing in favour of the plaintiff nor
any irreparable injury is likely to be caused to the plaintiff for want of an ex parte
ad interim injunction. In the facts and circumstances as above, there are no
satisfactory grounds for granting ex parte ad interim injunction in favour of the
plaintiff without providing opportunity of objections and hearing to the defendants
against the injunction application 6C2. So issue notices to the defendants fixing
26.09.2020 for objections and hearing on the injunction application 6C2. Plaintiff
is directed to take necessary steps forthwith. Application 9C2 moved by plaintiff
under Order 39, rule 3 CPC is disposed of accordingly.

Addl. Civil Judge (Junior Division)

Court No. 28, Allahabad

56
 ¼3½

¼,di{kh; fu"ks/kkKk izkFkZuk i= ij vkns'k tc ewyokn LFkk;h U;k;ky; ls vUrfjr gksdj

mlh fnu izkIr gqvk gks½

08-09-2020% ewyokn dh i=koyh U;k;ky; flfoy tt ¼twfu;j fMohtu½] if'peh]

bykgkckn ls vUrfjr gksdj vkt bl U;k;ky; esa izkIr gqbZ gSA oknh e;
vf/koDrk mifLFkr gSA oknh dh vksj ls ,di{kh; fu"ks/kkKk gsrq izkFkZuk i=
8x2 izLrqr fd;k x;k gSA lqukA i=koyh 8x2 ij vkns'k ds fy, fnukad 09-
09-2020 dks izLrqr gksA

vij flfoy tt ¼twfu;j fMohtu½

d{k la[;k&28] bykgkckn

(3)

Reserving order on ex-parte injunction application when suit

has been received by transfer from parent court the same day)

08.09.2020: Record of the present original suit has been received today in this court
by transfer from the court of the Civil Judge (Junior Division), West,
Allahabad. Plaintiff is present with his counsel. Plaintiff has moved
application 8C2 seeking ex-parte ad interim injunction against the
defendants who are yet not served. Heard the learned counsel for
plaintiff on 8C2. Fix 09.09.2020 for order on 8C2.

Addl. Civil Judge (J.D.)

Court No- 28, Allahabad

57
 (4)

(यथा थित बनाये रखने हेतु एकप ीय अ थाई ादे श)

ायालय अपर िसिवल जज (जू िनयर िडवीजन), कोट सं ा- 28, इलाहाबाद

मूलवाद सं ा- 218/2020

महावीरआिद........................................................................................................................................वादीगण

ित

रमेश कुमार आिद ...................................................................................................................... ितवादीगण

12.09.2020 : वादीगण ारा वतमान मूलवाद ितवादीगण के िव थाई िनषे धा क ादे श की

िड ी के िलए योिजत िकया गया है। वादीगण ने िनषे धा ा ाथना प 6ग2 मय शपथप 7ग2
ु त करके ितवादीगण के िव आदे श 39, िनयम 3 सीपीसी के अ गत एकप ीय
अ थाई िनषे धा क ादे श जारी करने का अनु रोध िकया है । वादीगण के अिधव ा को
सु ना तथा प ावली का प रशीलन िकया।

वादप , िनषेधा ा ाथना प 6ग2 तथा उसके समथन म ु त िकये गये शपथप 7ग2 म
वादीगण का कथन है िक वादीगण ामः रामपुर, परगना व तहसीलः चायल, जनपदः
इलाहाबाद के िनवासीगण ह जहाँ वादीगण का पैतृक मकान एवं खेती-बारी की जमीन थत
है। वादीगण के मकान के पास म ही ितवादीगण का मकान है। वादीगण के मकान के
सामने उनके सहन की भू िम, िजसे वादप के अ म िदये गये मानिच म अ र अ, ब, स, द
से दशाया गया है , के वादीगण ामीगण तथा अ ासीगण ह। वादीगण की उ सहन की
भू िम से ितवादीगण का कोई वा ा व सरोकार नही है पर ु िफर भी ितवादीगण वादीगण
के उ सहन की भूिम को अपने मकान के सामने थत अपने सहन की भू िम म िमला लेना
चाहते ह और इसके िलए बाउ ी का िनमाण करने के िलए मौके पर ितवादीगण ने ईंटा,
बालू आिद िनमाण साम ी भी एक कर ली है । ितवादीगण को यिद िनिष नही िकया
जाता तो ितवादीगण शी ही बाउ ी का िनमाण कराकर वादीगण के सहन को अपने सहन
की भू िम म िमला लगे िजससे वादीगण के प रवारजनों का िनकास-पैठास दू भर हो जाएगा।
अपने उपरो कथनों के समथन म वादीगण ने शपथ-प 7ग2 ु त िकया है । mijksDr
rF;ksa o ifjfLFkfr;ksa esa oknhx.k ds i{k esa izFke n`"V;k dsl fo|eku
gSA
वाद प के अ म वादीगण ारा िदये गये मानिच म उभयप के मकानों तथा उनके
सामने थत उनके अलग-अलग सहन की थित को दशाया गया है िजससे होता है िक
वादीगण के मकान के सामने थत भूिम का उपयोग वादीगण ारा अपने सहन के पम
िकया जाता है । ितवादीगण ारा वादीगण के मकान के सामने थत उनके सहन की
उपरो भू िम पर बाउ ीवाल बनाकर अपने सहन म स िलत कर िलए जाने की दशा म
u dsoy oknhx.k dks viw.kZuh; {kfr gksxh vfirq वतमान मूलवाद तथा
58
िनषे धा ा ाथना-प 6ग2 का उ े िन okn ds rF;ksa o
ल हो जाएगा।
ifjfLFkfr;ksa esa lqfo/kk dk larqyu Hkh oknhx.k ds i{k esa gSA vr,o
उपरो त ों व प र थितयों म एकप ीय ादे श िनगत िकये जाने हेतु पया आधार
उपल ह। अतएव िदनाँ क 19.09.2020 की ितिथ वा े आपि तथा सुनवाई िनषे धा ा
ाथना प 6ग2 िनयत करते ए ितवादीगण को आदे शवाहक के मा म से नोिटस जारी
हों। इस बीच उभयप को आदे िशत िकया जाता है िक उभयप उ िनयत ितिथ
19.09.2020 तक िववािदत स ि के संबंध म मौके पर यथा थित बनाये रख। वादीगण
आदे श 39, िनयम 3 सीपीसी के पर ुक के ावधानों का अनुपालन अिवलं ब सु िनि त कर।

अपर िसिवल जज (जू 0िड0)

कोट सं ा- 28, इलाहाबाद

59
 (4)

(Ex parte temporary injunction to maintain status quo)

Court of Addl. Civil Judge (Junior Division), Court No. 28, Allahabad
O.S. No.218/2020

Mahaveer and Others …………………………………..…………………………… Plaintiffs

Versus
Ramesh Kumar and Others …………………………..…………………………… Defendants

12.09.2020: Plaintiffs have instituted the present suit against the defendants for the decree of
permanent prohibitory injunction. Plaintiffs have moved application 6C2 along with
affidavit 7C2 seeking ex-parte ad interim injunction against the defendants. Heard the
learned counsel for plaintiffs and perused the record.

As has been stated by the plaintiffs in the plaint, injunction application 6C2 and the
accompanying affidavit 7C2 , plaintiffs are the residents of village: Rampur, Tehsil
and Pargana: Chayal, district: Allahabad and their ancestral houses and agricultural
property are situated there. Plaintiffs and defendants have their houses together with
their frontage adjacent to each other and use and occupy the same accordingly. The
sehan i.e. frontage of the plaintiffs’ house has been shown with the letters A, B, C,D
in the map given at the bottom of the plaint. Defendants have no concern with the
said sehan of the plaintiffs. But the defendants are trying to illegally occupy the
aforesaid sehan of the plaintiffs and to annex the same to their sehan by constructing
a boundary wall thereon and have collected building material like bricks and sand
etc. for the purpose. Plaintiffs have prayed to issue ex-parte temporary injunction
against the defendants restraining them from occupying the said sehan land of the
plaintiffs and constructing boundary wall thereon. Plaintiffs have filed affidavit 7C2
in support of their aforesaid statements and as such a prima facie case in favour of
the plaintiffs is found to be existing.

As has been shown in the map given at the bottom of the plaint, sehan i.e. frontage
of the houses of the plaintiffs and defendants are situate in front of their respective
houses under their separate use and occupation. In view of the above facts and
circumstances of the case, if the defendants occupy the said sehan land of the
plaintiffs and construct the boundary wall thereon, then not only the egress and
ingress of the plaintiffs over their sehan land will stand obstructed but the object of
the suit and the interim injunction application 6C2 as well would stand frustrated.
The necessary factors like irreparable loss and balance of convenience are thus found
to be existing for purposes of granting an ex parte ad interim injunction. So issue
notices to the defendants through process server fixing 19.09.2020 for objections and
hearing on the injunction application 6C2. Both the parties are meanwhile directed to
maintain status quo in respect of the aforesaid disputed sehan land till the date fixed
i.e. 19.09.2020. Plaintiffs are directed to comply with the provisions of the Proviso
to rule 3 of Order 39 CPC forthwith.

Addl. Civil Judge (J.D.)

Court No- 28, Allahabad

60
 ¼5½

¼fdjk;snkj dh csn[kyh ds fo:) ,di{kh; vLFkk;h O;kns'k½

U;k;ky; vij flfoy tt ¼twfu;j fMohtu½] d{k la[;k&28] bykgkckn
ewyokn la[;k% 218@2020

jke izrki flag ------------------------------------------------------------------------------------------------------------------------------oknh

izfr

lqjs'k izrki flag ----------------------------------------------------------------------------------------------------------------------izfroknh

20-09-2020% oknh jke izrki flag }kjk orZeku ewyokn izfrokn lqjs'k izrki flag ds fo:)
LFkk;h fu"ks/kkKk dh fMØh gsrq ;ksftr fd;k x;k gSA oknh us vkns'k 39] fu;e
1 o 2 lhihlh ds vUrxZr izkFkZuki= 6x2 bl vk'k; dk izLrqr fd;k gS fd
U;k;ky; izfroknh ds fo:) ,di{kh; vUrfje fu"ks/kkRed O;kns'k tkjh djsA
oknh ds vf/koDrk dks lquk rFkk i=koyh dk voyksdu fd;kA

okni=] vUrfje O;kns'k izkFkZuk&i= 6x2 rFkk mlds leFkZu esa izLrqr fd;s
x;s 'kiFki= 7x2 esa oknh dk dFku gS fd oknh edku la[;k 118@2]
flfoy ykbZUl] bykgkckn esa fiNys nks o"kZ ls fdjk;snkj ds :Ik esa jg jgk
gSA izfroknh mDr edku dk Lokeh vkSj Hkou Lokeh gSA oknh vkSj izfroknh ds
chp fnukad 12-08-2018 dks ,d fyf[kr fdjk;kukek lEiUu gqvk Fkk vkSj rc
ls oknh :0 1500@& izfrekg dh nj ls izfroknh dks fdjk;k nsrk vk jgk gS
ftldh jlhnsa Hkh izfroknh }kjk oknh dks nh tkrh jgh gSaA fdjk;sukes esa
r;'kqnk nks o"kZ dh vof/k lekIr gks tkus ij oknh us izfroknh ls vuqjks/k
fd;k fd og fdjk;s dh vof/k vxys ,d o"kZ ds fy, c<+k nsos rkfd mDr
vof/k esa oknh dksbZ nwljk mi;qDr edku <wa<+dj fdjk;s ij ys lds vkSj
izfroknh dk edku [kkyh dj nsos ijUrq izfroknh ,slk ugha djds oknh dks
cyiwoZd mlds fdjk;snkjh okys Hkkx ls fu"dkflr djus vkSj fctyh&ikuh
dk dusD'ku Hkh dkV nsus dh /kedh ns jgk gSA

oknh us vius mijksDr dFkuksa ds leFkZu esa 'kiFk&i= 7x2] fdjk;kukek

fnukafdr 12-08-2018 rFkk fiNys ckjg ekg ds fdjk;s dh jlhnsa izLrqr dh gSa
ftuds voyksdu ls Li"V gksrk gS fd oknh mijksDr edku esa mlds Hkou
Lokeh@izfroknh dk fdjk;snkj gS vkSj izfroknh dks fdjk;k nsrk vk jgk gS
vkSj fdjk;s dh vof/k lekIr gksus tkus ds ckn Hkh mijksDr edku esa fuokl

61
dj jgk gSA mijksDr rF;ksa ,oa dkxtkrksa ds vkyksd esa oknh ds i{k esa izFke
n`"V;k dsl fo|eku gksuk ik;k tkrk gSA fdjk;snkjh dh vof/k lekIr gksus
tkus ds ckn Hkh mDr edku esa oknh ds vkckn gksus ls lqfo/kk dk larqyu
oknh ds i{k esa gS vkSj ;fn mls izfroknh }kjk cyiwoZd fu"dkflr dj fn;k
tkrk gS rks blls u dsoy oknh dks viw.kZuh; {kfr dkfjr gksxh vfirq orZeku
fu"ks/kkKk okn rFkk fu"ks/kkKk izkFkZuk i= dk mn~ns'; Hkh fu"Qy gks tk;sxkA
dsl ds mijksDr rF;ksa o ifjfLFkfr;ksa esa izfroknh ds fo:) ,di{kh; :Ik ls
vLFkk;h fu"ks/kkRed O;kns'k tkjh djus ds fy, Ik;kZIr vk/kkj fo|eku gSaA
vr,o i=koyh fnukad 27-09-2020 dks fu"ks/kkKk izkFkZuk i= 6x2 dh lquokbZ
ds fy, izLrqr gksA izkFkZuk i= 6x2 ds fo:) izfroknh ls vkifRr vkeaf=r
gksA bl chp izfroknh dks fuf"k) fd;k tkrk gS fd izfroknh oknh dks
fookfnr fdjk;snkjh okys edku ls fcuk fof/kd izfØ;k viuk;s gq, cyiwoZd
fu"dkflr ugha djsA oknh vkns'k 39] fu;e 3 lhihlh ds ijUrqd ds izko/kkuksa
dk vuqikyu vfoyEc lqfuf'pr djsA

vij flfoy tt ¼twfu;j fMohtu½

d{k la[;k&28] bykgkckn

62
 (5)

(Ex parte ad interim injunction against forcible eviction of tenant)

OS No. 218/2020

Ram Pratap Singh ……………………………….……………………..………………Plaintiff

Versus
Suresh Pratap Singh ……………….……………...…………………………………Defendant

20.09.2020: Plaintiff Ram Pratap Singh has instituted the present suit against the defendant
Suresh Pratap Singh for a decree of permanent prohibitory injunction. Plaintiff has
filed application 6C2 under Order 39, rules 1 and 2 CPC and has also sought for
issuing an ex parte ad interim injunction against the defendant. Heard the learned
counsel for the plaintiff and perused the record.

As stated in the plaint, interim injunction application 6C2 and the accompanying
affidavit 7C2, plaintiff has been residing as tenant in house No. 118/2, Civil Lines,
Allahabad for the last two years. Defendant is the owner and landlord of the said
house. A written agreement of tenancy was executed on 12.08.2018 between the
plaintiff and the defendant. As agreed between the plaintiff and the defendant in
the said agreement of tenancy, plaintiff has been paying Rs. 1500/- per month as
rent to the defendant. After expiry of two years period of tenancy as agreed
between the parties, the plaintiff requested the defendant to further extend the
period of tenancy for one year but the defendant refused and is trying to forcibly
evict the plaintiff from the tenanted portion and is also threatening to obstruct the
water and electric supply to the tenanted portion.

In support of his aforesaid statements, plaintiff has filed his affidavit 7C2,
agreement of tenancy dated 12.08.2018 and the rent receipts issued by the
defendant to the plaintiff. As is revealed from the said affidavit, agreement of
tenancy and the rent receipts, plaintiff was residing in the said house as tenant of
the defendant and despite expiration of the period of tenancy, plaintiff is still
residing in the said house. In view of the aforesaid facts of the case and the
documents produced by the plaintiff, a prima facie case is found to be existing in
favour of the plaintiff. Since the plaintiff is still residing in the aforesaid house, the
balance of convenience also exists in his favour. In case the plaintiff is evicted
forcibly by the defendant from the said house, the plaintiff will have to suffer
irreparable injury and in the absence of an ad interim injunction, the very object of
the present suit and the injunction application would stand frustrated. So,
satisfactory grounds exist for granting ex parte ad interim injunction in favour of
the plaintiff and against the defendant. So invite objections from the defendant by
fixing 27.09.2020 for hearing on the injunction application 6C2. Defendant is
meanwhile restrained from evicting the plaintiff forcibly from the said house
without applying due process of law. Plaintiff is directed to comply with the
provisions of the Proviso to rule 3 of Order 39 CPC forthwith.

63
 Addl. Civil Judge (Junior Division)
Court No.28, Allahabad
¼6½

¼tc ,di{kh; vLFkk;h O;kns'k fiNyh frfFk vFkok

frfFk;ksa ij foLrkfjr ugha fd;k x;k gks½

22-09-2020% i=koyh izLrqr gqbZA iqdkj ij mHk;Ik{k ds vf/koDrkx.k mifLFkr gSaA okn
vkt oknh ds la'kks/ku izkFkZuk&i= 35d2 dh lquokbZ ds fy, fu;r gSA
izfroknhx.k ds vf/koDrk us 35d2 dh izfr izkIr djrs gq, 35d2 ds fo:)
vkifRr izLrqr djus ds fy, le; iznku fd;s tkus dk vuqjks/k fd;k gSA
vr,o i=koyh fnukad 25-10-2020 dks 35d2 dh lquokbZ ds fy, izLrqr gSA
izfroknhx.k mDr fu;r frfFk rd 35d2 ds fo:) viuh vkifRr;k¡ izLrqr
dj ldrs gSaA

oknh dh vksj ls vkt izkFkZuk&i= 36x2 bl vk'k; dk izLrqr fd;k x;k gS

fd oknh ds i{k esa iwoZ esa ikfjr fd;s x, ,di{kh; vLFkk;h O;kns'k dks
vfxzr fu;r frfFk rd ds fy, foLrkfjr fd;k tkosA 36x2 ds fo:)
izfroknhx.k ds vf/koDrk }kjk vkifRr dh xbZ gSA lqukA vkns'k&i=ksa ds
voyksdu ls Li"V gksrk gS fd U;k;ky; flfoy tt ¼twfu;j fMohtu½]
if'peh] bykgkckn }kjk fnukad 20-12-2019 dks izfroknhx.k ds fo:)
,di{kh; vLFkk;h O;kns'k tkjh fd;k x;k Fkk tks fofHkUu frfFk;ksa ij
foLrkfjr gksrk jgk ijUrq fnukad 05-05-2020 dks rFkk mlds ckn fu;r dh
xbZ frfFk;ksa ij mDr vLFkk;h O;kns'k foLrkfjr ugha fd;k x;k] ;|fi fd
oknh }kjk fnukad 05-05-2020 dks izkFkZuk&i= 32x2 vLFkk;h O;kns'k dks
foLrkfjr fd;s tkus ds fy, izLrqr fd;k x;k FkkA izkFkZuk&i= 32x2 ij
laHkor% Hkwyo'k fnukad 05-05-2020 dks vkns'k ikfjr ugha gks ldk FkkA vHkh
rd fu"ks/kkKk izkFkZuk&i= 6x2 dk xq.k&nks"k ds vk/kkj ij fuLrkj.k ugha gqvk
gS vkSj 6x2 vHkh Hkh lquokbZ o fuLrkj.k ds fy, yfEcr gSA mijksDr rF;ksa o
ifjfLFkfr;ksa dks fopkjxr djrs gq, izkFkZuk&i= 36x2 U;k;fgr esa Lohd`r
fd;k tkrk gSA oknh ds i{k esa iwoZ esa ikfjr ,di{kh; vLFkk;h O;kns'k vkt
ls vfxze fu;r frfFk 25-10-2020 rd ds fy, izHkkoh fd;k tkrk gSA

vij flfoy tt ¼twfu;j fMohtu½

d{k la[;k&28] bykgkckn

64
 (6)

(Order when ex parte ad interim injunction discontinued due to non-extension

on previous date/ dates)
22.09.2020: Case called out. Learned counsel for both the parties are present. Case is today
fixed for hearing on amendment application 35A2 moved by plaintiffs. Learned
counsel for defendants has received copy of 35A2 today and has sought for time to
file objections against 35A2. So fix 25.10.2020 for hearing on 35A2. Defendants
may file their objections against 35A2 by the date fixed.

Plaintiffs have today moved application 36C2 with the prayer to extend the ex
parte temporary injunction granted earlier in their favour. The learned counsel for
the defendants has opposed 36C2. Heard. It is revealed from perusal of the
previous order-sheets that ex parte temporary injunction was granted in favour of
the plaintiffs and against the defendants on 20.12.2019 by the court of Civil Judge
(Junior Division), West, Allahabad and the same was extended from date to date
but was not extended further on 05.05.2020 despite an application 32C2 having
been moved by the plaintiffs on 05.05.2020. It appears that no order could be
passed by the court on 32C2 extending the ex parte temporary injunction due to
oversight. Temporary injunction application 6C2 is still pending for hearing and
disposal on merits. Considering the aforesaid facts and circumstances, application
36C2 is allowed in the interest of justice. Ex parte temporary injunction granted
earlier is again made effective from today upto the next date fixed i.e. 25.10.2020.

Addl. Civil Judge (Junior Division)

Court No. 28, Allahabad

65
 ¼7½
mHk;i{k dh lquokbZ ds mijkUr xq.knks"k ds vk/kkj ij
fu"ks/kkKk izkFkZuk i= dk fuLrkj.k

U;k;ky; vij flfoy tt ¼twfu;j fMohtu½] d{k la[;k&5] cyjkeiqj

ewyokn la[;k% 218@2020

jke izrki flag ------------------------------------------------------------------------------------------------------------------------------oknh

izfr

lqjs'k izrki flag ,oa vU;-------------------------------------------------------------------------------------------------izfroknhx.k

varfje fu"ks/kkKk izkFkZuk i= 6x2 dk fuLrkj.k

vkns'k

22-12-2020% oknh jke izrki flag }kjk orZeku ewyokn izfroknx.k lqjs'k izrki flag ,oa
vU; ds fo:) LFkk;h fu"ks/kkKk dh fMØh gsrq ;ksftr fd;k x;k gSA oknh us
vkns'k 39] fu;e 1 o 2 lhihlh ds vUrxZr izkFkZuki= 6x2 e; 'kiFki= 7x2
bl vk'k; dk izLrqr fd;k gS fd U;k;ky; izfroknhx.k dks fuf"k/k dj nsos
fd izfroknhx.k orZeku ewy okn ds yfEcr jgus ds nkSjku oknh ds v/;klu
okyh fookfnr Hkwfe esa gLr{ksi ugha djs] vfrØe.k ugha djsa vkSj mlesa fdlh
izdkj dk fuekZ.k ugha djsaA

2- mHk;i{k ds fo)ku vf/koDrkx.k dks lquk rFkk i=koyh dk ifj'khyu

fd;kA

3- okni=] fu"ks/kkKk izkFkZuk i= 6x2 ,oa 'kiFk i= 7x2 esa vafdr oknh
ds dFkukuqlkj oknh fookfnr Hkwfe dk mi;ksx vius edku ds lgu ds
:Ik esa yEcs vjls ls djrk pyk vk jgk gSA fookfnr Hkwfe esa oknh dk
ifjokj mBrk&cSBrk gS vkSj mlesa mlds tkuojksa dh uk¡n rFkk NIij
dk cSBdk Hkh cuk gqvk gSA fookfnr Hkwfe dk mi;ksx oknh lgu ds
vfrfjDr vU; fofo/k :iksa esa Hkh djrk vk jgk gSA izfroknhx.k dk
edku Hkh oknh ds edku ls yxk gqvk mRrj dh vksj fLFkr gSA
izfroknhx.k dk fookfnr Hkwfe ls dksbZ lEcU/k o ljksdkj ugha gS] fQj
Hkh izfroknhx.k oknh ds lgu dh fookfnr Hkwfe esa oknh ds dCts esa
vuf/kd`r :Ik ls gLr{ksi djrs gSa vkSj mlesa vfrØe.k djds pgkj
fnokjh dk fuekZ.k djds mls vius lgu dh Hkwfe esa feyk ysuk pkgrs

66
 gSaA izfroknhx.k us blh mn~ns'; ls fiNys fnuksa ekSds ij bZaV] lhesUV
vkSj etnwj ,d= djds oknh ds lgu esa tcju pgkj fnokjh dk
fuekZ.k djuk pkgk ftldk fojks/k oknh }kjk fd;k x;kA xkao okyksa ds
gLr{ksi ds i'pkr~ ml fnu izfroknhx.k mijksDr fuekZ.k ugha dj lds
ijUrq izfroknhx.k yxkrkj bl iz;kl esa yxs gq, gSa fd og oknh dh
lgu dh mijksDr Hkwfe ij vfrØe.k djds pgkj fnokjh dk fuekZ.k
dj ysosa vkSj mls vius edku dh lgu dh Hkwfe esa lfEefyr dj
ysosaA oknh }kjk fu"ks/kkKk izkFkZuk i= 6x2 ds ek/;e ls vuqjks/k fd;k
x;k gS fd izfroknhx.k dks fuf"k) dj fn;k tkos fd izfroknhx.k
orZeku ewyokn ds yfEcr jgus dh vof/k esa oknh ds lgu dh iz'uxr
Hkwfe esa mlds v/;klu esa gLr{ksi ugha djs] mlesa vfrØe.k ugha djsa
vkSj ml ij pgkj fnokjh dk fuekZ.k ugha djsaA

4- izfroknhx.k us izfrokn i= ,oa vkifRr 18x2 e; 'kiFki= 19x2

izLrqr djds oknh ds mijksDr dFkuksa dk [k.Mu djrs gq, fu"ks/kkKk
izkFkZuk i= 6x2 dk fojks/k fd;k gSA izfroknhx.k dk dFku gS fd
mHk;i{k ,d gh iwoZt ds oa'kt gSaA oknh rFkk izfroknhx.k ds firk ds
e/; iwoZ esa bl vk'k; dk le>kSrk gqvk Fkk fd oknh vius edku ds
lkeus dh lgu dh Hkwfe dk fookfnr Hkkx izfroknhx.k ds firk dks ns
nsaxs vkSj mlds cnys esa izfroknhx.k ds firk oknh dks xzke% fcdk:iqj
fLFkr Hkwfe/kjh xkVk la[;k&42 esa mruh gh Hkwfe ns nsaxsA izfroknhx.k
ds firk us r;'kqnk mDr Hkwfe oknh dks ns fn;k ijUrq oknh us lgu dh
mijksDr fookfnr Hkwfe ij izfroknhx.k ds firk dk dCtk ugha gksus
fn;k vkSj vc tc izfroknhx.k vius fgLls dh mijksDRk fookfnr Hkwfe
dk v/;klu ysuk pkgrs gSa rks oknh vuqfpr :Ik ls mldk fojks/k
djrk gSA izfroknhx.k dk dFku gS fd fookfnr Hkwfe okLro esa
izfroknhx.k ds gh LoRo] LokfeRo o vf/kdkj dh Hkwfe gS ftlesa oknh
dk dksbZ LoRo o vf/kdkj fufgr ugha gSA

5- tgka rd izfroknhx.k dh bu vkifRr;ksa dk iz'u gS fd oknh rFkk

izfroknhx.k ds firk ds e/; iwoZ esa lEiUu gq, le>kSrs ds QyLo:Ik
oknh us fookfnr Hkwfe izfroknhx.k ds firk dks ns nh Fkh vkSj rc ls
fookfnr Hkwfe dk Lokeh oknh ugha vfirq izfroknhx.k ds firk vkSj
muds ckn izfroknhx.k gks x;s gSa rFkk oknh dk fookfnr Hkwfe esa dksbZ
LoRo] LokfeRo o vf/kdkj 'ks"k ugha jg x;k gS] ml lEcU/k esa Li"V
fd;k tkrk gS fd vUrfje fu"ks/kkKk izkFkZuk i= ds fuLrkj.k dh
voLFkk ij fookfnr Hkwfe esa i{kdkjksa ds LoRo] LokfeRo vFkok vf/kdkjksa
dk fofu'p; fd;k tkuk visf{kr ugha gS vfirq fookfnr Hkwfe ij dCts
ds vk/kkj ij gh fu"ks/kkKk izkFkZuk i= dk fuLrkj.k fd;k tk ldrk
gSA

67
6- okni=] fu"ks/kkKk izkFkZuk i= 6x2 ,oa mlds leFkZu esa izLrqr fd;s x;s
'kiFk 7x2 esa oknh dk Li"V dFku gS fd lgu dh mijksDr fookfnr
Hkwfe ij ,d ek= oknh dk gh dCtk dkQh vjls ls pyk vk jgk gS
ftldk mi;ksx oknh ,oa mldk ifjokj fofo/k :Ik esa djrk gSA vehu
vk;qDr }kjk fookfnr Hkwfe dk ekufp= fufeZr djrs gq, viuh fjiksVZ
29x2 izLrqr dh x;h gSA mDr ekufp= esa vehu }kjk fookfnr Hkwfe
dks oknh ds lgu njokts ds lkeus fLFkr gksuk n'kkZ;k x;k gS u fd
izfroknhx.k ds njokts ds lkeusA oknh }kjk okni= ds vUr esa fn;s
x;s ekufp= esa fookfnr Hkwfe dh tks fLFkfr ,oa prqlhZek,a n'kkZ;h x;h
gSa] mldh iqf"V vehu vk;qDr }kjk fufeZr ekufp= ls gksrh gSA Lo;a
izfroknhx.k }kjk Hkh viuh vkifRr 18x2 ,oa izfr 'kiFki= 19x2 esa
fd;s x;s dFkuksa ds vuqlkj fookfnr Hkwfe oknh ds gh v/;klu esa jgh
gS vkSj orZeku esa Hkh oknh dk gh ml ij dCtk gSA fookfnr Hkwfe ij
oknh dk v/;klu gksus ds dkj.k oknh ds i{k esa Li"V :Ik ls izFke
n`"V;k dsl fo|eku gSA

7- fookfnr Hkwfe ij oknh dk dCtk gksus ds dkj.k ;fn okn ds yfEcr

jgus dh vof/k esa izfroknhx.k }kjk ml ij vfrØe.k djds pgkj
fnokjh dk fuekZ.k dj fy;k tkrk gS rks mlls u dsoy lgu ds :Ik
esa fookfnr Hkwfe ds mi;ksx ls oknh o mldk ifjokj oafpr gks tk;sxk
vfirq mlls oknh rFkk mlds ifjokj dks vR;Ur vlqfo/kk dkfjr gksus
dh Hkh laHkkouk mRiUu gks tkosxhA vr,o lqfo/kk dk larqyu oknh ds
i{k esa gS u fd izfroknhx.k ds i{k esaA fookfnr Hkwfe esa i{kdkjksa ds
LoRo o LokfeRo ds fofu'p; ls iwoZ izfroknhx.k }kjk vfrØe.k djds
pgkj fnokjh dk fuekZ.k dj ysus ls oknh dks viw.kZuh; {kfr dkfjr
gksxhA

8- mijksDr foospu ds vkyksd esa Li"V gS fd varfje fu"ks/kkKk gsrq

vko';d iwoZ fof/kd 'krZsa ;Fkk izFke n`"V;k dsl] lqfo/kk dk larqyu
rFkk viw.kZuh; {kfr vius i{k esa lkfcr dj ikus esa oknh lQy jgk
gSA vr,o fu"ks/kkKk izkFkZuk i= 6x2 Lohdkj fd;k tkrk gSA
izfroknhx.k dks fuf"k) fd;k tkrk gS fd og orZeku ewyokn ds
yfEcr jgus dh vof/k esa fookfnr Hkwfe esa oknh ds 'kkariw.kZ v/;klu esa
gLr{ksi ugha djs] mlesa vfrØe.k ugha djsa rFkk pgkj fnokjh dk
fuekZ.k ugha djsA
¼izse eksgu½
vij flfoy tt ¼twfu;j fMohtu½]
d{k la[;k&5] cyjkeiqj

68
 (7)

Disposal of Interim Injunction Application on Merits

after Hearing both the Parties

Court of Addl. Civil Judge (Junior Division), Court No. 5, Balrampur

OS No. 218/2020

Ram Pratap Singh ……………………………….……………………..………………Plaintiff

Versus
Suresh Pratap Singh & Others…….……………...…………………………………Defendants

Disposal of Interim Injunction Application 6C2

ORDER

22.12.2020: Plaintiff Ram Pratap Singh has instituted the present suit against the defendants
Suresh Pratap Singh & Others for the decree of permanent prohibitory injunction.
Plaintiff has filed application 6C2 under Order 39, rules 1 and 2 CPC with the
prayer to grant interim injunction restraining the defendants from interfering into
his peaceful possession over the disputed sehan land, encroaching and constructing
boundary wall thereon.

2. Heard the learned counsel for the parties and perused the record.

3. As has been stated in the plaint, interim injunction application 6C2 and the
accompanying affidavit 7C2, the plaintiff has been in possession of the
land situate in front of his main door since long and has been using the
same for various purposes. The plaintiff has his animal pots and a thatched
baithaka in the said sehan land. House of the defendants is situated adjacent
towards north of the plaintiff’s house. Defendants have no right and title in
the disputed land and are in no way concerned to the disputed sehan land.
The defendants have been trying to encroach upon the disputed land and
annex the same to their sehan land by constructing a boundary wall
thereon. The defendants collected bricks, cement and labourers recently on
the spot to construct the boundary wall on the disputed land. On resistance
being offered by the plaintiff and intervention of the villagers, the
defendants could not succeed in constructing the boundary wall but they
are continuously threatening to forcibly occupy the disputed land and
annex it to the sehan land of their main door by erecting a boundary wall on
it. The plaintiff by means of his injunction application 6C2 has prayed for
issuing interim prohibitory injunction restraining the defendants from
interfering into his peaceful possession over the sehan land in dispute,
encroaching and constructing boundary wall on it during the pendency of
the present civil suit.

69
4. The defendants have contradicted the aforesaid statements of the plaintiff
and have opposed the injunction application 6C2 by filing their written
statement, objection 18C2 and counter affidavit 19C2. The stand taken by
the defendants is that both the parties are the descendants of a common
ancestor. The plaintiff and the father of the defendants had reached an
agreement in the past that the plaintiff would give away the disputed sehan
land to the father of the defendants and in lieu thereof would accept land in
equal area from the defendants’ bhumidhari Gata No. 42 situate in village:
Bikarupur. Honouring the said agreement, the father of the defendants gave
away the part of his said bhumidhari land to the plaintiff but the plantiff did
not allow the defendants’ father to take possession of the disputed sehan
land as agreed between them. The defendants state that as per the said
agreement between the plaintiff and the defendants’ father, the defendants
are the sole owner of the disputed sehan land and the plaintiff has lost his
rights and title in the aforesaid said land under the agreement reached
between him and the defendants’ father in the past.

5. As is evident from the aforesaid stands of the parties, the defendants claim
their right and title in the disputed sehan land on the basis of an agreement
reached between the plaintiff and the defendants’ father in the past. The
plaintiff also claims his right and title in the disputed sehan land. It is to be
clarified here that at the stage of disposal of an interim injunction
application, question of right or title in the disputed land cannot be gone
into by the court nor the same is relevant for purposes of disposal of the
injunction application in as much as the rival claims as to right and title of
the parties in the disputed land can only be decided at the trial and not at
the stage of disposal of the interim injuction application. An interim
injunction application has to be decided on the basis of possession of the
parties over the disputed land.

6. The plaintiff has clearly stated in his plaint, injunction application 6C2 and
the accompanying application 7C2 that he is in the excelusive possession of
the land in dispute for long and his family has been using it in various
forms. From the position of the disputed sehan land as shown by the Amin
Commissioner in his map and report 29C2, it transpires that the disputed
sehan land lies in front of the main door of the house of the plaintiff and
not on the frontage of the defendants’ house. The position of the disputed
sehan land as shown by the plaintiff in the map given at the bottom of the
plaint thus finds support from the map prepared by the Amin
Commissioner. The defendants themselves have admitted in their objection
18C2 and the accompanying affidavit 19C2 that the disputed sehan land is
presently in the occupation of the plaintiff and for that reason, a clear prima
facie case in favour of the plaintiff is found to be existing on the basis of
his exclusive possession over the disputed sehan land.

7. In the event of any encroachment and construction of boundary wall on the

disputed sehan land presently under occupation of the plaintiff, it is the
plaintiff who would stand deprived of his use and occupation of the

70
 disputed sehan land and not the defendants. The balance of convenience
with regard to the use and occupation over the disputed sehan land thus lies
in favour of the plaintiff. In the event of an encroachment and construction
of boundary wall thereon by the defendants, the plaintiff would have to
suffer irreparable loss in as much as he would stand deprived of the user of
the said sehan land.

8. In the light of the observations made in the preceding paragraphs, the

plaintiff has succeeded in establishing in his favour a clear prima facie
case, balance of convenience and irreparable injury, necessary for grant of
interim injunction, against the defendants. The interim injunction
application 6C2 is therefore allowed. The defendants are restrained during
the pendency of the present civil suit from interfering into the peaceful
possession of the plaintiff over the disputed sehan land and from
encroaching thereon by constructing the boundary wall.

(Prem Mohan)
Addl. Civil Judge (Junior Division)
Court No. 5, Balrampur

**************

71