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Mst. Govindi Bai Vs. Lakshmi Chand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 325 of 1951
Judge
Reported inAIR1953Raj136
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 1
AppellantMst. Govindi Bai
RespondentLakshmi Chand
Advocates: S.N. Saxena, Adv.
DispositionRevision allowed
Cases ReferredGunabala v. Hem Nalini
Excerpt:
- - he has simply granted temporary injunction because the relief prayed for is one of permanent injunction and the purpose of the suit would be defeated if the temporary injunction is not granted. all the three conditions given above must be satisfied before a temporary injunction is granted. simply because one or two of the above conditions are satisfied, temporary injunction cannot be granted......for the applicant that the learned district judge withoutcoming to a finding that there was 'prima facie' case for the plaintiff was not justified in granting temporary injunction. 3. i have considered the arguments of the learned counsel. there can be no doubt that the lower court has not said any where in his judgment that the plaintiff had a 'prima facie' case. in order to enable 'a party to obtain a temporary injunction he has to show the following three things: 1. that there is serious question to be tried in the suit and that on the facts before the court there is probability of his being entitled to relief asked for by him. 2. that the court's interference is necessary to protect him from that species of injury which the court calls irreparable, before his legal right can.....
Judgment:
ORDER

Sharma, J.

1. This revision has been filed by Mst. Govindi against whom a suit was filed by the opposite party Lakshmi Chand for permanent injunction. The plaintiff Lakshmi Chand filed an application for temporary injunction pending the suit. The injunction was refused by the first Court, but on appeal the learned District Judge, Jaipur City has reversed the order of the first Court and has granted a temporary injunction. The defendant Mst. Govindi has come in revision to this Court.

2. I have heard the learned counsel for the applicant. The opposite party has not appeared. It was argued by the learned counsel for the applicant that the learned District Judge withoutcoming to a finding that there was 'prima facie' case for the plaintiff was not justified in granting temporary injunction.

3. I have considered the arguments of the learned counsel. There can be no doubt that the lower Court has not said any where in his judgment that the plaintiff had a 'prima facie' case. In order to enable 'a party to obtain a temporary injunction he has to show the following three things:

1. that there is serious question to be tried in the suit and that on the facts before the Court there is probability of his being entitled to relief asked for by him.

2. that the Court's interference is necessary to protect him from that species of injury which the Court calls irreparable, before his legal right can be established on trial, and

3. that the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it.

In the present case the lower appellate Court has not at all considered the first question. He has simply granted temporary injunction because the relief prayed for is one of permanent injunction and the purpose of the suit would be defeated if the temporary injunction is not granted. Having a finding of the first court before him, that there was no 'prima facie' case for the plaintiff, it was the duty of the lower appellate court to first reverse that finding by giving satisfactory reasons. All the three conditions given above must be satisfied before a temporary injunction is granted. Simply because one or two of the above conditions are satisfied, temporary injunction cannot be granted. The learned District Judge, therefore committed an illegality in the exercise of his jurisdiction in not considering the first factor that as to whether the plaintiff had a 'prima facie' case. Ruling reported in --'Gunabala v. Hem Nalini', AIR 1918 Cal 495 (1) on which the learned District Judge has relied no where says that the question of 'prima facie' case need not be taken into consideration before an order of an interim injunction is made.

In that case the learned Judges took the expression 'It will have the unfortunate effect of a denial of justice to a helpless widow' to mean that the lower court had considered the question whether the plaintiff had any chance of successor in other words 'prima facie' case. The learned District Judge was wrong in taking the ruling, to mean that simply because the plaintiff prays for a relief of permanent injunction, He is entitled as a matter of course to an order of temporary injunction howsoever worthless may be his case. The first essential condition for granting a temporary injunction is that the plaintiff should have a 'prima facie' case. Unfortunately the learned District Judge has ignored this condition. His order cannot, therefore, be supported.

4. The application for revision is allowed 'ex parte'. The order of the lower appellate Court granting a temporary injunction is set aside and the case is sent back to it for deciding the appeal after considering all the necessary conditions for the issue of temporary injunction. The cost of this revision shall abide the result of the appeal in the lower appellate Court after remand.


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