Heard the learned advocates for the both sides. Perused the petition under Order 39 Rule 01 & 02 of the 1908 Code of Civil procedure, and the supporting affidavit, written objection thereto, the plaint, submitted documents and the case record. The record is taken up for passing necessary order.
Substance of the Petition:
On such perusal, it appears to the court that this is a suit for permanent injunction instituted on 27/09/2020. The plaintiff’s case in the nutshell is that the recorded tenant of the RS khatian No. 99 was Isahak Pramanik, who transferred his title to the scheduled land to the Plaintiffs. The plaintiffs claim that they have been in exclusive possession of the suit lands in cognizance of all including the defendant since the execution of the said deed. But due to the existence of the suit deed, the defendant claimed title to the suit land on 05/12/2021 and intimidated the plaintiffs for dispossession from the suit land; and as such, the plaintiff turned up before the court invoking temporary injunction with a view to refraining the defendants from causing disturbance to or dispossessing the plaintiff from the suit lands. And hence is the petition.
Objections of the Opposite Party:
The defendant submitted written objection thereto, the brief of which encapsulates that the averment of the plaintiffs on the fact of the aforesaid forceful dispossession from the land specified in the schedule to the plaint is totally fake and falsified. The CS and SA khatians of the suit lands were recorded in the names of the defendants’ predecessors and predecessor-in-interest. But, RS record was wrongly prepared and published in the name of Isahak Pramanik, in the place of Isaha Ali Pramanik, the basis of which includes several deeds in their favor. Accordingly, a lawsuit bearing number of the other class suit No. 57//2010 was instituted against Isahak Pramanik and his heirs later on, where the plaintiffs of this suit were included in the bulk of the defendant, and finally, the suit was decreed against the plaintiffs of this suit. The defendant states that they have been in exclusive possession of the suit lands and thus, the fact of the resistance by the plaintiff side caused towards the defendants who intimidated the plaintiffs and kept continuing the same is fabricated and has been brought into being for causing damages to the defendant. Hence, as they claim, the petition is liable to be dismissed.
Point for determination:
Whether the plaintiff may get the relief prayed for?
Discussions and Decisions:
The so called trinity of principles on which rests the foundation of any order of injunction are the corner stones of a party’s pleading in a proceeding for injunction. No doubt, prima facie case means the plaintiff must show the existence of a legal right in him to continue in possession. It is a substantial question raised bona fide, which needs investigation and a decision on merits. In addition, a finding on 'prima facie case' would be a finding of fact.
05. Firstly, on careful perusal of the averments of pleadings as well as submitted documents, it conspicuously appears that the plaintiff shows some material facts which obviously carry him to the trial with his suit. Accordingly, it occurs that they have demonstrated ‘good and arguable case’ in his favour. It is thus needless to hold that with regard to the present case, a fair question is raised for determination; and accordingly, it is decisive that a prima facie case is established, even in face of the defendants’ assertion that legally stands beyond the ambit of the instant context.
06. With regard to ‘possession’, on careful perusal of the materials on record, it transpires that the plaintiffs are not outspoken of how and what manner they have been in possession of the suit lands. Accordingly, there appears a lack of precision and perspicuity with regard to the plaintiffs’ possessory state of the suit lands. With an instance, the plaintiffs’ petition merely envisages that he has been in possession of the same but they steps no more in details as to their possession. On the contrary, the defendant submitted some possessory documents, which seems obviously evidentiary value-laden. More specifically, sheer confounding conditions are arisen as such; and it is not ascertainable how and in what manner, he has been in possession of the suit land with the materials found on the record. Consequently, it contextually becomes decisive that the plaintiffs’ exclusive possession in the specified suit land cannot be decided upon the materials available on the record right now without taking further evidences.
7. Balance of convenience meaning to comparative mischief or inconvenience is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. Apart from a prima facie case and a balance of convenience, the pleadings must establish also a case of irreparable injury to occur to the plaintiff if no injunction were granted.
The issue is, in fact, to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case. Having taken aforesaid narratives, it is much safe to hold that speaking out the irreparable injury alleged to be occurred to the plaintiff if no injunction were granted, or deciding upon the question of the balance of convenience and inconvenience to the parties fall short in any details to be determined due to the findings made hereinbefore.
8. Of irreparable injury', such injury cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refuse. In the instant context, it diaphanously appears that the plaintiffs are precarious in their mode of possession of the suit land; and it is also not ascertainable so far as long as the materials currently available on the record are considered. Hence, whether compensation can be adequate remedy to the plaintiff or he may face injury, irreparable or otherwise are consequently ruled out.
09.
It is further well-conversant that the phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’
are not rhetoric phrases for incantation, but words of width and elasticity, to
meet myriad situations presented by man’s ingenuity in given facts and
circumstances, but always is hedged with sound exercise of judicial discretion
to meet the ends of justice. Keeping all of these things in the appreciation of
the appearing facts and aspects, the court is of view that the plaintiff’s
prayer for temporary injunction is not worth-being allowed.
However,
the materials on record including the certified documents relating to the other
class suit No. 57/2010 are further taken into consideration. The judicial mind
understands that although the plaintiffs rely on the RS record of rights and a
registered deed along with defacto
possessions in the suit lands, they totally pursued taciturn regarding the
verdict of the other class suit No. 57/2010, albeit they were made party as
defendants (No. 1ka-1chh) to that suit as well as the suit properties are
identical. It could thus be no denying that such an obvious fact was, in all
probability, known to the petitioners, nevertheless they seem to be suppressing
it advertently. As a result, the court is of opinion that the plaintiffs ought to
come before the court with clean hands.
Hence, it is ordered
That
the application for temporary injunction dated 08.12.2021 be disallowed on the contest.
The
next date is on 14.08.2022 AD for framing of issue(s).