# Km. Sunita v. Smt. Manju & Ors

- **Citation:** (2025) 6 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-06-20
- **Case number:** First Appeal From Order No. 2075 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-sunita-v-smt-manju-ors-53580
- **Pages:** 15

## Headnote

Act-Sec.52-Suit for partition filed by the
appellant-plaintiff- along with 6C-2 -Temporary
Injunction
Application
was
rejected
vide
impugned order-for granting interim injunction-
three factors are required to be considered -
prima facie case, balance of convenience and
irreparable loss-in present case- it is a case of
partition -and plaintiff and defendants both have
equal right over the property in dispute- unless
it is divided- protection of Section 52 of Transfer
of Property Act-but in case interim injunction is
not granted-will create multiplicity of litigationsimpugned judgment and order and decree are
bad and set aside- parties are directed to
maintain the status quo.

Appeal allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,843 of 49,081. This is a partial read: ask again with offset=39843 for what follows._

6 All. Km. Sunita Vs. Smt. Manju & Ors.
69
which he is accused, or suspected,
of the commission of which he is
suspected.

 (v) The appellant shall not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence.

18. In case of breach of any of the
above conditions, the prosecution shall be
at liberty to move bail cancellation
application before this Court.
----------
(2025) 6 ILRA 69
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.06.2025

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

First Appeal From Order No. 2075 of 2024

Km. Sunita ...Appellant
Versus
Smt. Manju & Ors. ...Respondents

Counsel for the Appellant:
Sri Gaurang Dwivedi, Sri Pranvesh, Sr. Adv.

Counsel for the Respondents:
Sri Ajay Sengar, Sri Sanjay Agrawal

Temporary injunction-Transfer of Property
Act-Sec.52-Suit for partition filed by the
appellant-plaintiff- along with 6C-2 -Temporary
Injunction
Application
was
rejected
vide
impugned order-for granting interim injunction-
three factors are required to be considered -
prima facie case, balance of convenience and
irreparable loss-in present case- it is a case of
partition -and plaintiff and defendants both have
equal right over the property in dispute- unless
it is divided- protection of Section 52 of Transfer
of Property Act-but in case interim injunction is
not granted-will create multiplicity of litigationsimpugned judgment and order and decree are
bad and set aside- parties are directed to
maintain the status quo.

Appeal allowed. (E-9)

List of Cases cited:

1. H. Anjanappa & ors.Vs A. Prabhakr & ors.-
Civil Appeal Nos. 1180-1181 of 2025;

2. Gurmit Singh Bhatia Vs Kiran Kant Robinson
& ors.:(2020) 13 SCC 773,

3. Kasturi Vs Iyyamperumal & ors.: (2005) 6
SCC 733

4. Vineeta Sharma Vs Rakesh Sharma & ors:
AIR 2020 SC 3717

5. M/s Sri Bankhadi Nath Developers Pvt. Ltd.
Vs Dharmendra Kumar Rathore & ors.: 2024(3)
ADJ 723)

6. Amar Singh Vs U.O.I.& ors.: (2011) 7 SCC 69
and

7. Ambalal Sarabhai Enterprises Limited Vs KS
Infraspace LLP Ltd. & Another: (2020) 5 SCC
410

8. Gujarat Bottling Co. Ltd. & ors.. Vs Coca Cola
Company & ors.. (1995) 5 SCC 545

9. Zenith Mataplast P. Ltd. Vs St. of Maharashtra
& ors..: (2009) 10 SCC 388

10. Saurabh Gupta Vs Smt. Archana Gupta &
ors.: 2024(3) ADJ 241(LB)

11. Sk. Golam Lalchand Vs Nandu Shaw & ors.
AIR 2024 SC 4193

12. Ramakant Ambalal Choksi Vs Harish Ambalal
Choksi & ors.. MANU/SC/1270/2024
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri M.C. Chaturvedi, learned
Senior Counsel, assisted by Sri Pranvesh,
70 INDIAN LAW REPORTS ALLAHABAD SERIES
learned counsel for the appellant, Sri Anoop
Trivedi, learned Senior Counsel, assisted by
Sri Devansh Mishra and Sri Shivam Tiwari,
learned counsel for the respondent Nos. 1 to 3
and Sri Ajay Sengar, learned counsel for the
respondent No. 4.

2. Present appeal has been filed
with the prayer to set aside the judgment
and order dated 16.09.2024 and decree
dated 19.09.2024 passed by learned Civil
Judge(Senior Division), Jalaun at Orai in
Original Suit No. 356 of 2023(Km. Sunita
Vs. Smt. Manju and Others) and also to
allow
the
Temporary
Injunction
Application No. 6C-2.

3. With the consent of learned
counsel for the parties, the appeal is being
decided at the admission stage itself.

4. Brief facts of the case are that a
suit for partition being Original Suit No. 356
of 2023 was filed by the appellant-plaintiff on
11.10.2023
against
the
respondentsdefendants for partition along with 6C-2
application. After argument, 6C-2 application
was
rejected
vide
impugned
order
16.09.2024. Hence the present appeal.

5. Sri M.C. Chaturvedi, learned
Senior Counsel, appearing for the appellant
submitted that impugned order has been
passed basically on two grounds. The first
ground is that appellant-plaintiff has
concealed certain facts and she has not
disclosed the fact regarding agreement to
sale executed by her before filing of the
suit, therefore, she was not with clean
hands. The second ground was that she has
not impleaded the subsequent purchasers as
defendants in the suit.

6. So far as first ground is
concerned, learned Senior Counsel has
argued that agreement to sale was executed
without right of possession and till date sale
deed has not been executed, therefore, right
of no coparcener is affected. He next
submitted that non discloser of such fact
would
not
affect
the
nature
and
consequence of suit. Therefore, this cannot
said to be a concealment of fact. So far as
second ground is concerned, he argued that
total eight sale deeds were executed by the
respondent-defendant during the pendency
of the suit and appellant-plaintiff was
having no knowledge of that, therefore,
there is no occasion for the appellantplaintiff
to
implead
the
subsequent
purchasers as party in the suit. Immediately
after knowing about the execution of the
sale deed, she has brought those documents
along with records before the court. It is
also his argument that appellant-plaintiff is
dominus litus i.e. master of suit, therefore,
she cannot be forced to implead anyone as
defendant in the suit. He next submitted
that appellant-plaintiff has not claimed any
relief against the persons in favour of
whom, sale deeds were executed, therefore,
they are not the necessary party in the suit.
He
also
submitted
that
subsequent
purchasers are having full right to file
impleadment application under Order 1
Rule 10 CPC, therefore, there is no
occasion to consider their grievance in this
partition suit. He next submitted that the
suit filed by the appellant-plaintiff is a
partition suit between the family members
and in case subsequent purchasers are
impleaded, the nature and consequence of
the suit would be changed. Therefore,
subsequent purchasers are not the necessary
party in the suit. He also submitted that
certain objections under Section 6 of the
Hindu Succession Act, 1956 were raised
and the court has opined that it can only be
decided during the course of trial after
leading the evidence, therefore, this issue
6 All. Km. Sunita Vs. Smt. Manju & Ors.
71
cannot be raised at this stage. In support of
his contention, he placed reliance upon the
judgment of Hon'ble Apex Court in the
matters of Civil Appeal Nos. 1180-1181 of
2025 (H. Anjanappa & Ors. Vs. A.
Prabhakr & Ors., Gurmit Singh Bhatia
Vs. Kiran Kant Robinson and Ors.:(2020)
13 SCC 773, Kasturi Vs. Iyyamperumal
and Ors.: (2005) 6 SCC 733, Vineeta
Sharma Vs. Rakesh Sharma and Ors: AIR
2020 SC 3717, and this Court in M/s Sri
Bankhadi Nath Developers Pvt. Ltd. Vs.
Dharmendra Kumar Rathore and others:
2024(3) ADJ 723).

7. Sri Anoop Trivedi, learned
Senior
Counsel,
appearing
for
the
respondents,
opposed
the
aforesaid
submission and submitted that agreement to
sale was executed by the appellant-plaintiff
prior to filing of the suit and also one more
agreement to sale through power of
attorney was executed during the pendency
of suit and these facts are concealed by the
appellant-plaintiff, therefore, she is not
entitled for any relief from this Court. In
support of his contention, he placed
reliance upon the judgment of Hon'ble
Apex Court in the matter of Amar Singh
Vs. Union of India and Others: (2011) 7
SCC
69
and
Ambalal
Sarabhai
Enterprises Limited Vs. KS Infraspace
LLP Limited and Another: (2020) 5 SCC
410.

8. He next submitted that once the
sale deed has been executed in favour of
other persons, they are the necessary party
and it is required on the part of the plaintiff
to implead them as defendants. He next
submitted that so far as dominus litus is
concerned, under Section 52 of the Transfer
of Property Act any property sold out
during the pendency of suit shall be subject
to the outcome of the suit, therefore, in case
subsequent purchaser are not required to be
impleaded as defendant, there is no
occasion to grant interim protection in light
of Section 52 of the Transfer of Property
Act. On this Issue, he placed reliance upon
the judgment of Hon'ble Apex Court in the
matter of H. Anjanappa(Supra).

9. He also submitted that interim
injunction against the co-sharers cannot be
granted and further, while granting the
interim injunction conduct of the party,
balance of convenience and irreparable loss
is required to be seen. He next submitted
that in present case, undisputedly, conduct
of the party is not fair and further, interim
injunction cannot be granted against the cosharers, therefore, there is no prima facie
case,
balance
of
convenience
and
irreparable loss of the appellant-plaintiff.

10.
I
have
considered
the
submission advanced by learned counsel
for the parties and perused the record as
well as judgments relied upon.

11. The undisputed facts of the
case is that the suit filed by the appellantplaintiff is the partition suit against the
family members and appellant-plaintiff has
executed one agreement to sale prior to
filing of the suit, another after filing of suit
through power of attorney and this fact has
not been disclosed in the suit. Similarly, in
the objection to 6C-2 application, there is
no discloser of execution of sale deeds by
the respondents-defendants.

12. Now, the basic question before
the Court is to decide as to whether during
the pendency of partition suit, interim
protection is required to be granted or not.

13. I am coming to the first
argument of learned counsel for the
72 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant-plaintiff about the non discloser
of certain facts. If non discloser of these
facts would not change the nature and
consequence of the suit, that cannot be a
ground for rejecting the 6C-2 application
coupled with this fact that in the present
case, both the parties have concealed the
facts.

14. I have also perused judgment of
Apex Court in the matter of Amar
Singh(Supra). Relevant paragraph of the
said
judgment
are
being
quoted
hereinbelow:

 "53. Courts have, over the
centuries, frowned upon litigants who, with
intent to deceive and mislead the courts,
initiated
proceedings
without
full
disclosure of facts. Courts held that such
litigants have come with "unclean hands"
and are not entitled to be heard on the
merits of their case.

 54. In Dalglish v. Jarvie {2 Mac.
& G. 231,238}, the Court, speaking
through Lord Langdale and Rolfe B., laid
down:

 "It is the duty of a party asking
for an injunction to bring under the notice
of the Court all facts material to the
determination
of
his
right
to
that
injunction; and it is no excuse for him to
say that he was not aware of the
importance of any fact which he has
omitted to bring forward.""

 55. In Castelli v. Cook {1849 (7)
Hare, 89,94}, Vice Chancellor Wigram,
formulated the same principles as follows:

 "A plaintiff applying ex parte
comes under a contract with the Court that
he will state the whole case fully and fairly
to the Court. If he fails to do that, and the
Court finds, when the other party applies to
dissolve the injunction, that any material
fact has been suppressed or not property
brought forward, the plaintiff is told that
the Court will not decide on the merits, and
that, as has broken faith with the Court, the
injunction must go."

 56. In the case of Republic of
Peru v. Dreyfus Brothers & Company {55
L.T. 802,803}, Justice Kay reminded us of
the same position by holding:

 "...If there is an important
misstatement, speaking for myself, I have
never hesitated, and never shall hesitate
until the rule is altered, to discharge the
order at once, so as to impress upon all
persons who are suitors in this Court the
importance of dealing in good faith with
the Court when ex parte applications are
made."

 57. In one of the most celebrated
cases upholding this principle, in the Court
of Appeal in R. v. Kensington Income Tax
Commissioner {1917 (1) K.B. 486} Lord
Justice Scrutton formulated as under:

 "and it has been for many years
the rule of the Court, and one which it is of
the greatest importance to maintain, that
when an applicant comes to the Court to
obtain relief on an ex parte statement he
should make a full and fair disclosure of all
the material facts- facts, now law. He must
not misstate the law if he can help it -the
court is supposed to know the law. But it
knows nothing about the facts, and the
applicant must state fully and fairly the
facts, and the penalty by which the Court
enforces that obligation is that if it finds
out that the facts have been fully and fairly
stated to it, the Court will set aside any
6 All. Km. Sunita Vs. Smt. Manju & Ors.
73
action which it has taken on the faith of the
imperfect statement."

 58. It is one of the fundamental
principles of jurisprudence that litigants
must observe total clarity and candour in
their pleadings and especially when it
contains a prayer for injunction. A prayer
for injunction, which is an equitable
remedy, must be governed by principles of
'uberrima fide'.

 59. The aforesaid requirement of
coming to Court with clean hands has been
repeatedly reiterated by this Court in a
large number of cases. Some of which may
be noted, they are: Hari Narain v. Badri
Das, Welcome Hotel and others v. State of
A.P. and others, G. Narayanaswamy Reddy
(Dead) by LRs. and another v. Government
of
Karnatka
and
another,
S.P.
Chengalvaraya Naidu (Dead) by LRs. v.
Jagannath (Dead) by LRs. and others, A.V.
Papayya Sastry and others v. Government
of A.P. and others, Prestige Lights Limited
v. SBI, Sunil Poddar and others v. Union
Bank of India, K.D.Sharma v. SAIL and
others, G. Jayashree and others v.
Bhagwandas S. Patel and others, Dalip
Singh v. State of U.P. and others.

 60. In the last noted case of Dalip
Singh (supra), this Court has given this
concept a new dimension which has a far
reaching effect. We, therefore, repeat those
principles here again:

 "1. For many centuries Indian
society cherished two basic values of life
i.e. "satya"(truth) and "ahimsa (nonviolence), Mahavir, Gautam Budha and
Mahatma Gandhi guided the people to
ingrain these values in their daily life.
Truth constituted an integral part of the
justice-delivery system which was in vogue
in the preindependence era and the people
used to feel proud to tell truth in the courts
irrespective of the consequences. However,
post-Independence period has seen drastic
changes
in
our
value
system.
The
materialism has overshadowed the old
ethos and the quest for personal gain has
become so intense that those involved in
litigation do not hesitate to take shelter of
falsehood,
misrepresentation
and
suppression
of
facts
in
the
court
proceedings.

 2. In the last 40 years, a new
creed of litigants has cropped up. Those
who belong to this creed do not have any
respect for truth. They shamelessly resort
to falsehood and unethical means for
achieving their goals. In order to meet the
challenge posed by this new creed of
litigants, the courts have, from time to time,
evolved new rules and it is now well
established that a litigant, who attempts to
pollute the stream of justice or who touches
the pure fountain of justice with tainted
hands, is not entitled to any relief, interim
or final."

 However,
this
Court
is
constrained to observe that those principles
are honoured more in breach than in their
observance.

 61. Following these principles,
this Court has no hesitation in holding that
the instant writ petition is an attempt by the
petitioner to mislead the Court on the basis
of frivolous allegations and by suppression
of material facts, this court had issued
notice and also subsequently passed the
injunction order which is still continuing.

15. From the perusal of judgment
quoted hereinabove, it is apparently clear
that
for
concealment
of
fact
or
74 INDIAN LAW REPORTS ALLAHABAD SERIES
misstatement,
there
must
have
been
intention to mislead the Court or obtain
some order fraudulently. Again para 61 of
the aforesaid judgment transpires that that
appeal was made by the appellant to
mislead the Court on the basis of frivolous
allegation and suppression of material
facts, but so far as present case is
concerned, even if the facts are not
disclosed, that would not change in nature
of the suit for the very simple reason that it
is a partition suit between the family
members. Therefore, this judgment would
not be applicable on the facts of the present
case and the same would not come in the
rescue of respondents-defendants.

16. I have also perused judgment of
Hon'ble Apex Court in the matter of
Ambalal
Sarabhai(Supra).
Relevant
paragraph of the said judgment are being
quoted hereinbelow:

 "23.
WanderLtd.(supra)
prescribes a rule of prudence only. Much
will depend on the facts of a case. It fell for
consideration again in Gujarat Bottling
Co. Ltd. vs. Coca Cola Co., (1995) 5 SCC
545, observing as follows: "47....Under
Order 39 of the Code of Civil Procedure,
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"

17. From the perusal of aforesaid
judgment, it is apparently clear that the
facts of the case are entirely different. It
is recorded in this judgment that the
fact
is
having
bearing
upon
the
consequences of the suit, which is not
in present case. Hence, this judgment
would also not benefit the respondentsdefendants.

18. Now, I am coming to the
another issue as to whether subsequent
purchasers are necessary party or not. This
issue has been considered by the Hon'ble
Apex
Court
in
the
matter
of
H.
Anjanappa(Supra). Relevant parapraph of
the aforesaid judgment are being quoted
hereinbelow:

 "58. From a conspectus of all the
aforesaid judgments, touching upon the
present aspect, broadly, the following
would emerge:

 i. First, for the purpose of
impleading a transferee pendente lite, the
facts and circumstances should be gone
into and basing on the necessary facts, the
Court can permit such a party to come on
record, either under Order I Rule 10 CPC
or under Order XXII Rule 10 CPC, as a
general principle;"

 ii.
Secondly,
a
transferee
pendente lite is not entitled to come on
record as a matter of right;

 iii. Thirdly, there is no absolute
rule that such a transferee pendente lite,
with the leave of the Court should, in all
cases, be allowed to come on record as a
party;

 iv. Fourthly, the impleadment of a
transferee pendente lite would depend upon
the nature of the suit and appreciation of
the material available on record;
6 All. Km. Sunita Vs. Smt. Manju & Ors.
75
 v. Fifthly, where a transferee
pendente lite does not ask for leave to come
on record, that would obviously be at his
peril, and the suit may be improperly
conducted by the plaintiff on record;

 vi. Sixthly, merely because such
transferee pendente lite does not come on
record, the concept of him (transferee
pendente lite) not being bound by the
judgment does not arise and consequently
he would be bound by the result of the
litigation,
though
he
remains
unrepresented;

 vii.
Seventhly,
the
sale
transaction pendente lite is hit by the
provisions of Section 52 of the Transfer of
Property Act; and,

 viii.
Eighthly,
a
transferee
pendente lite, being an assignee of interest
in the property, as envisaged under Order
XXII Rule 10 CPC, can seek leave of the
Court to come record on his own or at the
instance of either party to the suit.

19. From careful perusal of para 58
of the aforesaid judgment, it is clear that a
transferee pendete lite is not a necessary
party as a matter of right. It depends upon
the facts and circumstances of the case. So
far as present case is concerned, certainly it
is a partition suit, therefore, subsequent
purchasers are not necessary party in such
proceeding.

20. Now, I am coming to the issue
of dominus litus. This issue has come up
before the Hon'ble Apex Court in the
matter of Gurmit Singh Bhatia(Supra),
Kasturi(Supra) and this Court in M/s Sri
Bankhadi Nath Developers(Supra). The
Court has held that appellant-plaintiff is a
dominus litus and he cannot be forced to
add party against whom he does not want
to contest the case unless there is provision
under the rule of law. In the present case,
no relief is sought against the subsequent
purchasers, therefore, plaintiff-appellant
cannot be forced to implead them as
defendants.

21. There is one more issue
regarding
Section
6
of
the
Hindu
Succession Act, 1956 denying the legal
heirship of appellant-plaintiff.

22. This issue was very well
considered by the Hon'ble Apex Court in
the matter of Vineeta Sharma(Supra).
Relevant
paragraph
of
the
aforesaid
judgment is being quoted hereinbelow:

 "29. In Ghamandi Ram (supra),
the formation, concept and incidents of the
coparcenary were discussed thus:

 "5. According to the Mitakshara
School of Hindu Law all the property of a
Hindu joint family is held in collective
ownership by all the coparceners in a
quasi-corporate
capacity.
The
textual
authority of the Mitakshara lays down in
express terms that the joint family property
is held in trust for the joint family members
then living and thereafter to be born (see
Mitakshara, Ch. I, 1-27). The incidents of
co-parcenership under the Mitakshara law
are: first, the lineal male descendants of a
person up to the third generation, acquire
on birth ownership in the ancestral
properties of such person; secondly, that
such descendants can at any time work out
their rights by asking for partition; thirdly,
that till partition each member has got
ownership
extending over
the
entire
property, conjointly with the rest; fourthly,
that as a result of such coownership the
possession and enjoyment of the properties
76 INDIAN LAW REPORTS ALLAHABAD SERIES
is common; fifthly, that no alienation of the
property is possible unless it be for
necessity, without the concurrence of the
coparceners, and sixthly, that the interest
of a deceased member lapses on his death
to the survivors. A coparcenary under the
Mitakshara School is a creature of law and
cannot arise by Act of parties except in so
far that on adoption the adopted son
becomes a coparcener with his adoptive
father as regards the ancestral properties
of the latter. In Sundaranam Maistri v.
Harasimbhulu Maistri and Another, ILR 25
Mad 149 at 154."

 Mr Justice Bhashyam Ayyangar
stated the legal position thus:

 "The Mitakshara doctrine of joint
family property is founded upon the
existence of an undivided family, as a
corporate body (Gan Savant Bal Savant v.
Narayan Bhond Savant) [ILR 7 Bom 467]
and Mayne's 'Hindu Law and Usage', (6th
edition, Paragraph 270) and the possession
of property by such corporate body. The
first requisite therefore is the family unit;
and the possession by it of property is the
second requisite. For the present purpose,
female members of the family may be left
out of consideration and the conception of
a Hindu family is a common male ancestor
with his lineal descendants in the male line,
and so long as that family is in its normal
condition viz. the undivided state - it
forms a corporate body. Such corporate
body, with its heritage, is purely a creature
of law and cannot be created by Act of
parties, save in so far that, by adoption, a
stranger may be affiliated as a member of
that corporate family."

 6. Adverting to the nature of the
property owned by such a family the
learned Judge proceeded to state:
 "As regards the property of such
family,
the
'unobstructed
heritage'
devolving
on
such
family,
with
its
accretions, is owned by the family, as a
corporate body, and one or more branches
of that family, each forming a corporate
body within a larger corporate body, may
possess separate 'unobstructed heritage'
which,
with
its
accretions,
may
be
exclusively owned by such branch as a
corporate body."

23. From perusal of aforesaid
judgment, it is apparently clear that learned
judge has decided this issue in light of
judgment
of
Vineeta
Sharma(Supra)
therefore, co-parcenership of the appellantplaintiff cannot be denied.

24. Now, I am coming to the issue
as to whether in the partition suit, interim
protection is required or not. This issue
came up before the Apex Court in the
matter of Gujarat Bottling Co. Ltd. And
Ors. Vs. Coca Cola Company and ors.
(1995) 5 SCC 545. Relevant paragraph of
the aforesaid judgment is being quoted
hereinbelow:

 "46.
The
grant
of
an
interlocutory injuction during the perdency
of legal proceedings is a matter requiring
the exercise of discretion of the court.
While exercising the descretion the court.
While exercising the discretion the court
applies the following tests - (i) whether the
plaintiff has a prima facie case; (ii)
whether the balance of convenience is in
favour of the plaintiff; and (iii) whether the
pliantiff would suffer an irreparable injury
if his prayer for interlocutory injuction is
disallowed. The decision whether or not to
grant an interlocutory injuction has to be
taken at a time when the existence of the
legal right assailed by the plaintiff and its
6 All. Km. Sunita Vs. Smt. Manju & Ors.
77
alleged violation are both contested and
uncertain and its alleged violation are both
contested and uncertain and remain
uncertain till they are established at the
trial on evidence. Relief by way of
interlocutory
injuction
is
granted
to
mitigate the risk of injustice to the plaintiff
during the period before that uncertainty
could be resolved. The object of the
interlocutory injuction 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. The need for such
protection has, however, to be weighed
against the corresponding need of the
defendant to be protected against injury
resulting from his having been prevented
from exercisising his own legal rights for
which
he
could
not
be
adequately
compensated. The court must weigh one
need against another and determine where
the
'balance
of
convenience'
lies.
[see:Wander Ltd.& Anr. v,. Antox India P.
Ltd., MANU/SC/0595/1990. In order to
protect the defendant while granting an
interlocutory injuction in his favour the
Court can require the plaintiff to furnish an
undertaking so that the defendant can be
adequately compensated if the uncertainty
were resolved in his favour at the trial.

25. Again this issue was considered
by the Apex Court in the matter of Zenith
Mataplast
P.
Ltd.
Vs.
State
of
Maharashtra and Ors.: (2009) 10 SCC
388. Relevant paragraph of the said
judgment are being quoted hereinbelow:

 "23. Interim order is passed on
the basis of prima facie findings, which are
tentative. Such order is passed as a
temporary arrangement to preserve the
status quo till the matter is decided finally,
to ensure that the matter does not become
either infructuous or a fait accompli before
the final hearing. 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. (vide Anand Prasad
Agarwalla
v.
State
of
Assam
vs.
Tarkeshwar Prasad & Ors. AIR 2001 SC
2367;
and
Barak
Upatyaka
D.U.
Karmachari Sanstha (2009) 5 SCC 694)

 24. Grant of an interim relief in
regard to the nature and extent thereof
depends upon the facts and circumstances
of each case as no strait-jacket formula can
be laid down. There may be a situation
wherein the defendant/respondent may use
the suit property in such a manner that the
situation becomes irretrievable. In such a
fact situation, interim relief should be
granted (vide M. Gurudas & Ors. Vs.
Rasaranjan & Ors. AIR 2006 SC 3275; and
Shridevi & Anr. vs. Muralidhar & Anr.
(2007) 14 SCC 721.

 25.
Grant
of
temporary
injunction, is governed by three basic
principles, i.e. prima facie case; balance of
convenience; and irreparable injury, which
are required to be considered in a proper
perspective in the facts and circumstances
of a particular case. But it may not be
appropriate for any court to hold a mini
trial at the stage of grant of temporary
injunction (Vide S.M. Dyechem Ltd. Vs.
M/s. Cadbury (India) Ltd., AIR 2000 SC
2114; and Anand Prasad Agarwalla
(supra).

 26. In Colgate Palmolive (India)
Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC
3105, this court observed that the other
78 INDIAN LAW REPORTS ALLAHABAD SERIES
considerations which ought to weigh with
the Court hearing the application or
petition for the grant of injunctions are as
below :

 (i) Extent of damages being an
adequate remedy;

 (ii) Protect the plaintiff's interest
for violation of his rights though however
having regard to the injury that may be
suffered by the defendants by reason
therefor ;

 (iii) The court while dealing with
the matter ought not to ignore the factum of
strength of one party's case being stronger
than the others;

 (iv) No fixed rules or notions
ought to be had in the matter of grant of
injunction
but
on
the
facts
and
circumstances of each casethe relief being
kept flexible;

 (v) The issue is 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;

 (vi) Balance of convenience or
inconvenience ought to be considered as an
important requirement even if there is a
serious question or prima facie case in
support of the grant;

 (vii) Whether the grant or refusal
of injunction will adversely affect the
interest of general public which can or
cannot be compensated otherwise."

 27. In Dalpat Kumar & Anr. Vs.
Prahlad Singh & Ors., AIR 1993 SC 276, the
Supreme Court explained the scope of
aforesaid
material
circumstances,
but
observed as under:-

 "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.
The facts rest eloquent and speak for
themselves. It is well nigh impossible to find
from facts prima facie case and balance of
convenience."

 28. This Court in Manohar Lal
Chopra Vs. Rai Bahadur Rao Raja Seth Hira
Lal, AIR 1962 SC 527 held that the civil court
has a power to grant interim injunction in
exercise of its inherent jurisdiction even if the
case does not fall within the ambit of
provisions of Order 39 Code of Civil
Procedure.

 29.
In Deoraj
vs.
State
of
Maharashtra & Ors. AIR 2004 SC 1975, this
Court considered a case where the courts
below had refused the grant of interim relief.
While dealing with the appeal, the Court
observed that ordinarily in exercise of its
jurisdiction under Art.136 of the Constitution,
this Court does not interfere with the orders
of interim nature passed by the High Court.
However, this rule of discretion followed in
practice is by way of just self-imposed
restriction. An irreparable injury which
forcibly tilts the balance in favour of the
applicant, may persuade the Court even to
grant an interim relief though it may amount
to granting the final relief itself. The Court
held as under:-

 "The Court would grant such an
interim
relief
only
if
satisfied
that
6 All. Km. Sunita Vs. Smt. Manju & Ors.
79
withholding
of
it
would
prick
the
conscience of the court and do violence to
the sense of justice, resulting in injustice
being perpetuated throughout the hearing,
and at the end the court would not be able
to vindicate the cause of justice."

 30. Such a course is permissible
when the case of the applicant is based on
his fundamental rights guaranteed by the
Constitution of India. (vide All India Anna
Dravida Munnetra Kazhagam vs. Chief
Secretary, Govt. of Tamil Nadu & Ors.
(2009) 5 SCC 452)

 31.
In
Bombay
Dyeing
&
Manufacturing Co. Ltd. Vs. Bombay
Environmental Action Group & Ors.
(2005) 5 SCC 61, this Court observed as
under:-

 "The courts, however, have to
strike a balance between two extreme
positions viz. whether the writ petition
would itself become infructuous if interim
order is refused, on the one hand, and the
enormity of losses and hardships which
may be suffered by others if an interim
order is granted, particularly having
regard to the fact that in such an event, the
losses sustained by the affected parties
thereby may not be possible to be
redeemed."

 32. Thus, the law on the issue
emerges to the effect that interim injunction
should be granted by the Court after
considering all the pros and cons of the
case in a given set of facts involved therein
on the risk and responsibility of the party
or, in case he looses the case, he cannot
take any advantage of the same. The order
can be passed on settled principles taking
into account the three basic grounds i.e.
prima facie case, balance of convenience
and
irreparable
loss.
The
delay
in
approaching the Court is of course a good
ground for refusal of interim relief, but in
exceptional circumstances, where the case
of a party is based on fundamental rights
guaranteed under the Constitution and
there is an apprehension that suit property
may be developed in a manner that it
acquires irretrievable situation, the Court
may grant relief even at a belated stage
provided the court is satisfied that the
applicant has not been negligent in
pursuing the case."

26. This issue has also been
considered by this Court in the matter of
Saurabh Gupta Vs. Smt. Archana Gupta
and
others:
2024(3)
ADJ
241(LB).
Relevant paragraphs of the aforesaid
judgment are being quoted herein below:

 "4. The crux of the matter is that
the appellant filed a Civil Suit No.23 of
2023, impleading the respondents as
defendants, for a declaration that he is the
co-sharer of 1/4th part of the property in
dispute as the property belongs to joint
family property because it was purchased
by the father of the appellant, who is also
the husband of respondent no.1 in the name
of respondent no.1. In the suit above, the
specific plea was taken that respondent
no.1 was the house maker and did not have
any
independent
source
of
income.
Through a sale deed dated 20.10.1986, the
appellant's father purchased the property
in dispute from Ram Ratan Gupta. It was
further mentioned in the plaint that the
appellant also made construction over that
plot, and thereafter, the entire family has
been running a business therein, and this
complex is also known as R.C. Complex.
Therefore, an application under Order 39
Rule 1 and 2 C.P.C. was filed during the
pendency of the present suit with a prayer
80 INDIAN LAW REPORTS ALLAHABAD SERIES
that the respondent may be restrained from
transferring the same. In the written
statement, respondents have stated that the
aforesaid property has been gifted by
respondent no.1 to respondent no.2. The
application above for interim injunction
has been dismissed by the Court below vide
order dated 25.07.2023.

 13. Law relating to granting
interim injunction during the pendency of
suit is well-settled which was reiterated by
the Apex Court in several judgements. In
the case of Neon Laboratories Ltd. vs
Medical Technology Ltd. and others; 2016
(2) SCC 672, Hon'ble Apex Court observed
as under;

 "However, it is now entrenched in
our jurisprudence that the appellate Court
is not flimsily, whimsically or lightly
interfere in the exercise of discretion by a
sub-ordinate court unless such exercise is
palpably frivolous. Perversity can pertain
to the understanding of law or the
appreciation of pleadings or evidence."

 14. Hon'ble Apex Court in the
case of Zenith Metaplast Pvt. Ltd. vs
State of Maharastra and others; 2009
(10) SCC 388, while laying down the law
relating to granting the injunction,
observed that the interim order is a
temporary arrangement to preserve the
status quo till the matter is decided
finally, to ensure that the matter does not
become infructuous or a fait accompali
before the final hearing. It also further
observed that the grant of a temporary
injunction is governed by three basic
principles, i.e. prima facie case, balance
of convenience, and irreparable injury,
which must be considered in a proper
perspective
in
the
facts
and
circumstances of the particular case. For
reference para 30, 31 and 37 of the above
judgments are quoted as below;

 "30. Interim order is passed
based on prima facie findings, which are
tentative. Such order is passed as a
temporary arrangement to preserve the
status quo till the matter is decided
finally, to ensure that the matter does not
become either infructuous or a fait
accompli before the final hearing. 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 (vide Anand Prasad Agarwalla
v. Tarkeshwar Prasad [(2001) 5 SCC
568] , and State of Assam v. Barak
Upatyaka
D.U.
Karmachari
Sanstha
[(2009) 5 SCC 694 : (2009) 2 SCC (L&S)
109] ).

 31. Grant of an interim relief in
regard to the nature and extent thereof
depends upon the facts and circumstances
of each case as no straitjacket formula can
be laid down. There may be a situation
wherein the respondent-defendant may use
the suit property in such a manner that the
situation becomes irretrievable. In such a
fact situation, interim relief should be
granted (vide M. Gurudas v. Rasaranjan
[(2006) 8 SCC 367 : AIR 2006 SC 3275]
and Shridevi v. Muralidhar [(2007) 14 SCC
721] ). Grant of a temporary injunction is
governed by three basic principles, i.e.
prima facie case, balance of convenience;
and irreparable injury, which are required
to be considered in a proper perspective in
the facts and circumstances of a particular
case. But it may not be appropriate for any
court to hold a mini-trial at the stage of
grant of temporary injunction [vide S.M.
6 All. Km. Sunita Vs. Smt. Manju & Ors.
81
Dyechem Ltd. v. Cadbury (India) Ltd.
[(2000) 5 SCC 573 : AIR 2000 SC 2114]
and Anand Prasad Agarwalla [(2001) 5
SCC 568] , SCC p. 570, para 6].

 37. Thus, the law on the issue
emerges to the effect that interim injunction
should be granted by the Court after
considering all the pros and cons of the
case in a given set of facts involved therein
on the risk and responsibility of the party
or, in case he loses the case, he cannot take
any advantage of the same. The order can
be passed on settled principles taking into
account the three basic grounds i.e. prima
facie case, balance of convenience and
irreparable loss."

 15. Be that as it may, here the
appellant is claiming the declaration of
only 1/4th share in the property in dispute
on the ground that the property belongs to
a joint Hindu family and the property was
purchased during lifetime of father of the
appellant in the name of respondent no.1,
who was homemaker.