1. The petitioner before this Court was the plaintiff in O. S. No. 333 of 1967 in the Court of the Munsiff at Mercara. The plaintiff filed a suit for declaration that the foot path shown in the plan, is a pedestrian footpath, and not a public road for vehicular traffic, and for a permanent injunction restraining the defendants from using the same and from removing the gate put up by him on the said footpath. The trial Court granted a temporary injunction prayed for by the plaintiff. In the appeal filed by the defendants against the said order, the learned Civil Judge, Mercara, vacated the said order of temporary injunction. This revision is directed against the said order passed by the learned Civil Judge.
2. Sri V. Krishna Murthy, learned Counsel appearing on behalf of the petitioner, has contended that when the order of the trial Court was reasonably possible, it was not proper for the appellate Court to interfere with the discretionary order of temporary injunction passed by the trial Court. He argues the basic facts have been found by the trial Court justifying the issue of temporary injunction. There is no dispute that the petitioner is the owner of the estate through which this footpath runs. The trial Court has held that the plaintiff has made out a prima facie case. It has exercised its discretion properly and the appellate Court acted in the exercise of its jurisdiction with material irregularity in interfering with the order of the trial Court.
It is contended by Sri Krishna Murthy that the plan and the report of the Commissioner indicate that it is only a footpath. This footpath was widened into a road only in 1951 by the plaintiff's father for his own use and the members of the public had no right to take vehicular traffic through this road. Sri Krishna Murthy has strongly relied on a number of decisions of his Court reported in (1965) 1 Mys LJ 370 = (AIR 1965 Mys 310), (1968) 1 Mys LJ 552, C. R. P. No. 1083 of 1963 (Mys), C. R. P. No. 1091 of 1968 (Mys) and 1964 Mys LJ (SN) 80, in support of his contention.
3. The above mentioned decisions of this Court clearly lay down that the granting or refusing to grant an order of temporary injunction is within the judicial discretion of the trial Court. What the appellate Court has to consider is whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. If the conclusions on the basic facts arrived at by the trial court are reasonably possible on the materials placed before it, it is not proper for the appellate Court to disagree with the conclusions of the trial Court and interfere with the discretion of the trial Court. If there is no error in the order of the trial Court and if the appellate Court interferes with the said order, it will be exercising its jurisdiction with material irregularity calling for interference in revision by the High Court. This position of law is well settled and the learned Counsel for the respondents has not disputed the legal position.
4. The question for consideration, therefore, is whether the trial Court has exercised its judicial discretion properly and whether the appellate Court acted in the exercise of its jurisdiction with material irregularity in interfering with the order of the trial Court.
5. Order XXXIX, Rule 1 of the Code of Civil Procedure deals with granting of temporary injunction by Courts and it reads as follows:--
'1. Where in any suit it is proved by affidavit or otherwise--
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.'
Before a temporary injunction is granted, Court must be satisfied that (1) the applicant has a prima facie case; (2) protection is necessary from the species of injury known as 'irreparable' before the legal right can be established; (3) the mischief or inconvenience likely to arise from the withholding of injunction is greater than by granting it.
6. The contention of Sri Kanakasabhapathy, learned Counsel appearing on behalf of the respondents, is that none of these conditions has been established in this case. He argues that this matter has been agitated by the same parties before the Revenue Authorities and the Assistant Commissioner has found that the road in question is a public road and the members of the public have a right to use it for vehicular traffic and the District Board had spent money for repairing this road.
It is also argued that no inconvenience is caused to the petitioner if the status quo is maintained, but great inconvenience would be caused to the public if they are not allowed to make use of this road. The trial Court did not consider the question of relative convenience and as this is the only road which the members of the public could use to go to Sunticoppa, irreparable injury would be caused to them if they are not permitted to take their vehicles on this road. It is argued that if this road is blocked, even when persons suddenly fall ill, they cannot be rushed to the hospital, thus causing great inconvenience to the general public. In Kittamma v. Subba Rai, 1958 Mys LJ 634 = (AIR 1959 Mys 74), this Court has observed as follows:-
'A Court will not grant a temporary injunction as a matter of course in every case in which it can be shown that the main suit is a fit one for granting a perpetual injunction. In addition to such a prima facie case for grant of perpetual injunction, the plaintiff-applicant must also show that unless the defendant is restrained forthwith by a temporary injunction, the plaintiff would suffer irreparable injury or such injury as would render his ultimate success in the suit totally nugatory or infructuous.'
7. In (1965) 1 Mys LJ 370 = (AIR 1965 Mys 310), this Court has observed at p. 372 (of Mys LJ) = (at p. 311 of AIR) as follows:-
'In exercising the discretionary power, the Courts should be guided by the following guiding
'There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing of an injunction. It is a strong arm of equity that never ought to be extended unless to cases of great injury, where Courts of Law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protection preventive process of injunction. But that will not be awarded in doubtful cases, or new ones not coming within well-established principles; for if it issues erroneously an irreparable injury is inflicted for which there can be no redress, it being the act of a Court, not of the party who prays for it. It will be refused till the Courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done by an illegal act. In such a case the Court owes it to its suitors and its own principles to administer the only remedy which the law allows to prevent the commission of such act. The discretionary power must be exercised with extreme caution and applied only in very clear cases, otherwise, instead of becoming an instrument to promote the public as well as private welfare, it may become a means of an extensive and perhaps an irreparable injustice.'
In the said decision, it is further observed:-
'In other words, the relief should be awarded only in clear cases, reasonably free from doubt, and, when necessary, to prevent great and irreparable injury. The Court should therefore be guided by the fact that the burden of proof rests upon the complainant to establish the material allegations entitling him to relief.'
8. With regard to the second point of irreparable injury, the affidavit filed on behalf of the plaintiff praying for temporary injunction, states as follows:-
'If the gate near the Pulp house is removed and the Estate road made free for vehicular traffic by the members of the public the plaintiff will suffer irreparable and irremediable damage and no monetary compensation will ever be adequate. The coffee plants abutting on either side of the path will be damaged, the road itself will be damaged. There will be thefts of the valuable movable properties that are stored in the pulp house and the store room near the pulp house.'
Dealing with this point No.2 of irreparable injury, the trial Court has not accepted the contentions of the plaintiff. It has only found that the loss that will be caused to the plaintiff is the damage to the road by the use of vehicular traffic. There is no dispute that the gate put up by the plaintiff is in the middle of the estate ad not at the entrance. The question for consideration is whether the road in question is a public road. If it is a public road, the question of damage by the use of the road, does not arise. Even otherwise, merely by the use of the road by vehicular traffic, and the plaintiff himself is taking his vehicles on this road,--it is difficult to contend that the plaintiff would suffer irreparable injury or such injury as would render his ultimate success in the suit totally nugatory or infructuous. It is therefore clear that the trial Court has not found that irreparable injury or damage would be caused to the plaintiff if the order of temporary injunction is refused.
9. Taking next the question whether a prima facie case has been made out by the plaintiff for the issue of temporary injunction, it may be mentioned that defendant 1 has approached the Assistant Commissioner claiming that the footpath in question was a public road and the gate put up by the plaintiff should be removed. The Assistant Commissioner after notice to the plaintiff and recording evidence, held that the road in question was a public road and the public had a right to take vehicles on the road and ordered the plaintiff to remove the gate put up by him.
It is no doubt true that under Section 103 of the Mysore Land Revenue Act, 1964, this decision of the Assistant Commissioner, though final, is subject to the decision of the Civil Court. But, before the Civil Court, after recording evidence, decides the question, the fact that in a dispute between the same parties with regard to the same question, the Assistant Commissioner has held that the road, in question is a public road, is a relevant circumstance to be taken into consideration by the Civil Court at the preliminary stage in deciding whether the plaintiff has made out a prima facie case, when called upon to issue an order of temporary injunction. The Assistant Commissioner in his order has also held that the District board of the erstwhile Coorg had spent money for the improvement of this road.
In my opinion, the trial Court was not right in ignoring these facts and holding that the plaintiff had made out a prima facie case. On behalf of the defendants, two affidavits had been filed, one by the Chairman of the Village Panchayat and the other by the Patel of Kanabile-Bychanalli Villages. According to the affidavits of these persons, the defendants were making use of the road in dispute by taking vehicles since a long time and there is no other motorable road to reach their houses. The plaintiff had produced two affidavits of adjoining estate owners, viz., John White and Shankar, stating that no vehicle of the public is allowed to pass on the road without express permission.
The question whether the public had the right to take vehicular traffic on the road is a disputed question, which will have to be decided by the court after recording the evidence produced by both the sides. When contradictory affidavits have been produced by the plaintiff and the defendants, at the preliminary stage, the Court should not decide the truth or otherwise of those affidavits. In view of the conflicting versions, it is not possible to say in this case that the plaintiff has established a prima facie case.
10. Taking the third point into consideration, here again, the balance of convenience seems to been favour of the defendants and not in favour of the plaintiff. If vehicular traffic is allowed on this road till the decision of the case, it cannot be said that irreparable loss would be caused to the plaintiff, Issuing an order of temporary injunction would cause great inconvenience to the public in general. The case of the defendants is that this is the only motorable road to Sunticoppa. The objections filed by the defendants disclose that the road in question is the only motorable road to go to their houses. The second defendant owns a motor-bicycle by which he goes to is shop in Sunticoppa everyday. Because of the blocking of the road by the plaintiff, he has to walk everyday up and down 41/2 miles. The first defendant is bed-ridden with paralytic attack; when he is in that condition, he may have to be shifted suddenly to the hospital, and if the road is blocked, it will not be possible to shift him to the hospital.
So, prima facie, the blocking of the road would cause irreparable injury to the defendants and no to the plaintiff. As has been held by the appellate Court, the trial Court has not considered this aspect of the matter. The appellate Court in paragraph 28 of its order has observed as follows:--
'In short I am of the view that the circumstances that have been alleged are such that any issuance of temporary injunction would cause a considerable inconvenience to the public in general and the appellants in particular and the trial Court did not take all these facts into consideration while making the ex parte order of injunction absolute and I am therefore inclined to interfere with that finding of the Court below.'
11. As pointed out by Ramaswami, C. J., (as he then was) and Kanhaiya Singh, J., in Hemraj v. Seventeen Textile Traders (India), : AIR1961Pat318 , the circumstance that the plaintiff has a prima facie case does not necessarily mean that the order of temporary injunction must follow. The Court must also consider the question of irreparable or serious injury and the balance of convenience. In the said case, their Lordships, after considering the circumstances of the case, held that the balance of convenience was in favour of the defendant, for if the injunction was granted as prayed for by the plaintiff, then a large sum of money would be simply wasted and there would be irreparable injury to the defendant.
12. In view of the circumstances mentioned above, it is not possible to say that the appellate Court was wrong in interfering with the order of the trial Court. Because of the legal defects pointed out above in the order of the trial Court, it cannot be said that the appellate Court exercised its jurisdiction with material irregularity in interfering with the order of the trial Court.
13. Sri Krishna Murthy has stated that the recording of the evidence in the trial Court is almost over, and but for this Court calling for the records of the case, the case would have been disposed of. As the suit is coming to a close, and the trial Court will be in a position to decide the question finally on the evidence recorded by it, uninfluenced by the observations of this Court made in this petition, is an additional reason why this Court should not, at this stage, interfere with the order of the appellate Court.
14. In the result, there is no merit in this revision petition and the same is dismissed. In the circumstances of the case, there will be no order as to costs.
16. Petition dismissed.