N.K. Das, J.
1. Defendants Nos. 1, 15 and 16 are the appellants here against an order under Order 39, Rule 1, C. P. C. Respondent No. 4 filed a suit for declaration of title, confirmation of possession, in the alternative for recovery of possession and also alternatively for partition and allotment of 'A' schedule property. Defendants 1 to 3 are the sons of one Mansaram, since deceased: Plaintiff claims as the widow of said Mansaram and her claim is based on a deed of gift and a will executed by Mansaram in her favour. After filing of the suit, plaintiff prayed for injunction restraining defendant No. 3 from collecting rent from the persons who have stacked logs of wood at Mangalabag, Cuttack. It is stated that all the defendants except defendant No. 3 have stacked wood on the land at Mangalabag which is a part of the suit property and defendant No. 3 has been collecting rent from them. She prayed that defendant No. 3 should be restrained from collecting rent from those persons. The trial Court passed order under Order 39, Rule 1, C. P. C. restraining defendant No. 3 from collecting any rent from other defendants. Thereafter, another petition was filed by the plaintiff in Court for directing those other defendants to deposit the rent in Court. The learned trial Court has passed order directing those defendants to deposit the rent in Court. The present appeal is directed against this order. Defendant No. 3 who has been restrained from collecting any rent from other defendants does not dispute the order. But out of the other five defendants, three have come up in appeal. Defendant No. 1 is one of the sons of late Mansaram and he is also an appellant here.
2. The learned Court below has found a prima facie case in favour of theplaintiff on the basis of a registered deed of gift executed by Mansaram in her favour. He has held that though defendant No. 3 denies to have made any collection of rent from other defendants, those defendants do not say that they have got licence either from defendant No. 3 or from the plaintiff. If the collections are made from various tenants by defendant No. 3, it would cause prejudice to the plaintiff, and, as such, the balance of convenience is in favour of the plaintiff and the plaintiff would sustain irreparable loss.
3. It is well settled that the following propositions are to be established in order to invoke the jurisdiction of the Court to get the interlocutory order of injunction under Order 39, Rules 1 and 2, C. P. C.:
(1) Plaintiff has to establish a prima facie case;
(2) If balance of convenience is in favour of the plaintiff; and
(3) Plaintiff will suffer irreparable injury if injunction is refused.
In considering the question of irreparable injury, the Court has to see that the plaintiff will sustain such injury which cannot possibly and adequately be remedied by, way of damages and the damages would be inadequate in case of success of the plaintiff. In considering the question of balance of convenience, the Court has to consider the comparative mischief or inconvenience of both parties.
4. From the materials available on record, it appears that an ad interim injunction was issued against defendant No. 3 prohibiting him from collecting any rent from other defendants. On 22-6-1976 an application was filed by the plaintiff for deputing a Commissioner for local inspection of lot No. 5 of Schedule A of the plaint and to report as to the structures standing thereon and the logs stacked on the land and detain the same till the ownership is proved to the satisfaction of the Court by any of the opposite parties in the Misc. Case. In the body of the petition, in para 2 it has been stated that the Misc. Case under Order 39, Rules 1 and 2, C. P. C. has been filed and ex parte order of injunction has been passed against defendant No. 3. In paras 6 and 7 it is contended that defendant No. 3 has taken a stand that other defendants are not monthly tenants who are occupying any portion of the property and since 1972 defendant No. 1 is occupying the entire lot No. 5 by stacking logs thereon under possession of his father. But as a matter of fact, defendants 1 and 14 to 17 have made an unholy combination and are out to cheat the plaintiff, and as a matter of fact all the persons alleged in the plaint are in possession of lot No. 5. In pursuance of this application, a pleader commissioner was deputed and he has submitted his report. This report is on record. In the counter by opposite parties 2 to 5, namely, defendants other than defendant No. 3, it is stated that defendants 14 to 17 do not pay any rent to defendant No. 3 as alleged by the petitioner. In the counter by defendant No. 3 which is supported by an affidavit, it is stated that both the brothers, namely, defendants Nos. 1 and 3, having been separate since long, it is false to say that there has been connivance between the two brothers and monthly rent is being realised from other defendants and those defendants are not at all occupying any portion of the suit property as monthly tenants nor they are paying any monthly rental. Defendant No. 3 is not realising any rent from them and the amount as mentioned in the schedule of the petition is imaginary, baseless and concocted. It is further stated in the affidavit that no tenant is occupying any portion of the said land (vide para 10).
The learned Court below has not at all taken these averments into consideration. Mr. Basu, the learned counsel for the respondents, states that there has been affidavit by the petitioner stating the amount of rent being paid by other defendants to defendant No. 3. But defendant No. 3 in his affidavit has denied this fact. Though the objection of the other defendants has not been supported by affidavit, yet they have asserted that they are not paying rent. The question, therefore, is whether the other defendants are occupying the land as tenants and if they are paying rent to defendant No. 3. There is apparently no material on record excepting the bald affidavit of the plaintiff. The plaintiff does not state in the affidavit as to her source of information about the quantum of rent said to have been paid by other defendants to defendant No. 3. Mr. Basu refers to a letter that in 1974 defendant No. 3 had written to his father (since deceased) that he was collecting rent. From this, it cannot be definitely said that defendants are occupying the land in question as tenants and are paying rent therefor. This has to be gone into by the Court below in order to find out the real facts. The Commissioner was deputed for local inspection and his report will also reveal certain facts which have been alleged by the plaintiff or the stand taken by the defendants. But the learned Court below has not taken into consideration these facts. Consideration of the above materials would place the Court in a position to assess the irreparable injury as well as the balance of convenience.
The ingredients, namely, existence of prima facie case; irreparable injury that cannot be repaired or compensated in terms of money; or tilting the balance of convenience on the side of a party, are to be established by the party who seeks injunction in his favour. The grant of injunction being a discretionary relief, the party should come with clean hands and place all materials before the Court, so that the Court will be satisfied about the prima facie case in favour of the party who seeks the order. Unfortunately, the trial Court has not considered the materials in their proper perspective, keeping in view the facts and circumstances of the case.
5. On the aforesaid analysis, I hold that the order of the Court below is not sustainable.
6. In the result, the appeal is allowed and the order of the Court below is set aside. The case is remitted back to the lower Court for fresh disposal of the application of the plaintiff for injunction as against the petitioner according to law, keeping in view the observations made above.
7. In the circumstances of the case, I make no order as to costs.