# Rajendra Prasad Agrawal & Anr v. Samarpan Varishtha Jan Parisar & Ors

- **Citation:** (2021) 10 ILRA 908
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-06-22
- **Case number:** Misc. Single No. 20786 of 2020
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-agrawal-anr-v-samarpan-varishtha-jan-parisar-ors-46429
- **Pages:** 22

## Headnote

Civil Law - Code of Civil Procedure , O.39
R.1, O.39 R.2 - Temporary injunction -
grant of an interim injunction - while
dealing with an application for injunction,
the Court is required to be guided by the
principles of prima facie case, balance of
convenience and irreparable injury - when
the Court is considering an application for
interim injunction, it is not required to
hold a mini trial - Courts should make an
endeavour to test the relevant pleadings
in and if it finds that there is a contestable
issue which requires evidence of the
parties to be decided and the balance of
convenience and irreparable injury is in
favour of the party seeking the injunction,
then the status be preserved, as at that
stage the rights of the parties are in an
incohate stage - Appellate Court ought to
be slow in interfering with the order
10 All. Rajendra Prasad Agrawal & Anr. Vs. Samarpan Varishtha Jan Parisar & Ors.
909
granting
interim
injunction
which
is
discretionary (Para 58, 59)

Trial court considering parties submissions and
the pleadings on record allowed the application
for temporary injunction and restrained the
contesting
defendants
from
evicting
the
petitioners from Room No.108 of the old age
home without due process of law, till the
disposal of the suit - lower Appellate Court set
aside the injunction order on the ground that
the trial court did not dealt with the two
ingredients of balance of convenience and
irreparable injury - lower Appellate Court
adopted reasoning that the petitioners have
daughters and brothers in Lucknow, hence it
cannot be said that they do not have an
alternative accommodation - It also noticed that
the
petitioners
can
take
accommodation
elsewhere and considering the pleadings it
found
that
balance
of
convenience
and
irreparable injury was not in favour of the
petitioners - Held - Appellate Court did not
consider the issue of grant of injunction in
proper perspective (Para 63, 64)

Allowed. (E-5)

List of Cases cited:-

## Text

_Characters 0–39,984 of 74,898. This is a partial read: ask again with offset=39984 for what follows._

908 INDIAN LAW REPORTS ALLAHABAD SERIES
said fact is also noted by the Inspecting
Committee by its report dated 22.06.2018.
Thus, the University was required to decide
the application of the petitioners' college as
per
the
Government
Order
dated
22.12.2016. The University instead of
deciding the same had referred the matter
to the State Government on 07.09.2019.
Once, the University had referred the
matter to the State Government, it cannot
turn back and say that there is any delay on
part of the college in getting the college
associated permanently within the period of
four year. The college had done everything
at its' end and it was for the University to
take further steps. Therefore, imposition of
penalty of Rs. 1,00,000/- (One Lakh) by
order dated 05.08.2020 upon the college,
for not doing the needful for permanent
association within the period of four years,
cannot stand and is set aside.

17. Similarly, the letter of the
University dated 10.09.2020 by which the
University has given temporary association
only for the session 2020-2021 with the
condition imposed that the same is being
extended for the last time is incorrect. The
said condition that extension is being
extended for that the last time in letter
dated 10.09.2020 is also set aside. The
University will take a final decision on
grant of permanent association to the
petitioner college, in the light of above,
within a period of three months.

18.

In
the
given
facts
and
circumstance of the case, the question as to
whether the University has any right to give
a temporary association or can only give a
permanent association need not be gone
into in the present case and the said
question is left open to the decided in
appropriate case.

19. With the aforesaid, the present
writ petition stands disposed of.
----------
(2021)10ILR A908
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Misc. Single No. 20786 of 2020

Rajendra Prasad Agrawal & Anr.
 ...Petitioners
Versus
Samarpan Varishtha Jan Parisar & Ors.
 ...Respondents

Counsel for the Petitioners:
Sudeep Kumar, Avdesh Kumar Pandey,
Radhika Verma

Counsel for the Respondents:
C.S.C., Dr. L.P. Misra, J.K. Sinha, Namit
Sharma, Rohit Kumar Verma, Satyanshu
Ojha

Civil Law - Code of Civil Procedure , O.39
R.1, O.39 R.2 - Temporary injunction -
grant of an interim injunction - while
dealing with an application for injunction,
the Court is required to be guided by the
principles of prima facie case, balance of
convenience and irreparable injury - when
the Court is considering an application for
interim injunction, it is not required to
hold a mini trial - Courts should make an
endeavour to test the relevant pleadings
in and if it finds that there is a contestable
issue which requires evidence of the
parties to be decided and the balance of
convenience and irreparable injury is in
favour of the party seeking the injunction,
then the status be preserved, as at that
stage the rights of the parties are in an
incohate stage - Appellate Court ought to
be slow in interfering with the order
10 All. Rajendra Prasad Agrawal & Anr. Vs. Samarpan Varishtha Jan Parisar & Ors.
909
granting
interim
injunction
which
is
discretionary (Para 58, 59)

Trial court considering parties submissions and
the pleadings on record allowed the application
for temporary injunction and restrained the
contesting
defendants
from
evicting
the
petitioners from Room No.108 of the old age
home without due process of law, till the
disposal of the suit - lower Appellate Court set
aside the injunction order on the ground that
the trial court did not dealt with the two
ingredients of balance of convenience and
irreparable injury - lower Appellate Court
adopted reasoning that the petitioners have
daughters and brothers in Lucknow, hence it
cannot be said that they do not have an
alternative accommodation - It also noticed that
the
petitioners
can
take
accommodation
elsewhere and considering the pleadings it
found
that
balance
of
convenience
and
irreparable injury was not in favour of the
petitioners - Held - Appellate Court did not
consider the issue of grant of injunction in
proper perspective (Para 63, 64)

Allowed. (E-5)

List of Cases cited:-

1. Seema Arshad Zaheer & Ors. vs. Municipal
Corporation of Greater Mumbai & Ors., (2006) 5
SCC 282

2. Meera Mishra Vs Satish Kumar & Ors(2019) 2
SCC 375

3. Ranjit Kaur Vs Major Harmohinder Singh &
Ors (2011) 15 SCC 95

4. American Cyanamid Co. Vs Ethicon Ltd 1975
(1) All England Reporter 504

5. Wander Ltd. & Anr. vs. Antox India P. Ltd
1990 (Supp) SCC 727

6. Dalpat Kumar & Anr. vs. Prahlad Singh &
Ors., (1992) 1 SCC 719

7. Gujarat Bottling Co. Ltd. & Ors. vs. Coca Cola
- 17 - Co. & Ors., (1995) 5 SCC 545

8. Colgate Palmolive (India) Ltd. vs. Hindustan
Lever Ltd., (1999) 7 SCC 1

9. Ram Rattan & Ors. vs. State of U.P., (1977) 1
SCC 188

10. Krishna Ram Mahale (dead) by His LRs Vs
Mrs. Shobha Venkat Rao (1989) 4 SCC 131

11. Rame Gowda (dead) By LRs vs. M.
Varadappa Naidu (Dead) By LRs & Anr., (2004)
1 SCC 769

12. Anand Prasad Agarwalla vs. Tarkeshwar
Prasad & Ors., (2001) 5 SCC 568

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The petitioners before this Court
are abandoned parents, who have been
forsaken by their own children and have
been residing in an old age home. As if,
this was not enough, the old age home is
also seeking the ouster of the petitioners
and it is in this backdrop that the petitioners
had instituted a suit for permanent
injunction before the trial court seeking an
injunction to restrain the management of
the old age home from dispossessing the
petitioners from their room allotted to
them, without due process of law.

2. An interim injunction is a striking
remedy yielded by contemporary Courts.
With prolific litigation in most of the
Courts, interim injunction becomes a very
important component of a litigation. So
also in this case an application for interim
injunction was allowed by the trial Court,
but the decision has been reversed by the
lower Appellate Court and being aggrieved,
the petitioners have knocked the doors of
this Court by means of the instant petition
challenging the order passed by the lower
Appellate Court in Misc. Civil Appeal
No.7/2020 dated 20.10.2020.
910 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The lower Appellate Court, while
allowing the Misc. Civil Appeal No.7/2020
of the defendants/respondents No.1, 2 and
3, before this Court, has set aside the order
of injunction passed by the trial Court dated
17.12.2019 in Regular Suit No.2938/2019
and

4. In order to appreciate the
controversy involved in the instant petition,
the relevant facts are that the petitioners,
who are the plaintiffs in Regular Suit
No.2938/2019
instituted
a
suit
for
permanent injunction before the Court of
Civil Judge (Junior

5. The petitioners in their suit pleaded
that they are bonafide and lawful occupants
of Room No.108, situate in the old age
home being run under the name and style
of "Samarpan", of which the defendants
No.2 and 3 are the Senior Management
Officials.

6. It is the case of the petitioners that
the said old age home is being run by
Gayatri Parivar Trust after having obtained
a lease from the Nagar Nigam, Lucknow,
for managing and running an old age home
for senior citizens having its own manual of
instructions.

7. The petitioners state that they have
paid a sum of Rs.75,000/- as a security and
have been paying the monthly charges for
which receipts have been issued by the old
age home.

8. They are in settled possession of
Room No.108 and some time in August,
2019, the Management started interfering
in the peaceful possession and occupation
of the petitioners with a view to evict the
petitioners from the said room, hence, they
started creating false grounds including
raising questions on the behaviour of the
petitioners and more particularly relating to
the mental state of the petitioner No.2.

9. It has also been pleaded that since
the petitioners had raised certain objections
and
complaints
regarding
running,
management and upkeep of the said old age
home and the difficulties being faced by the
petitioners and other senior inmates, which
have been ignored. Instead of correcting its
management and upkeep, the old age home,
vindictively, gave a notice to the petitioners
regarding their behaviour and intemperate
language and aggression of the petitioner
No.2 and even threatened that they would
be evicted from the old age home.

10. It is in this backdrop that the suit
for permanent injunction was filed and an
application under Order 39 Rules 1 and 2
CPC was also moved seeking ad-interim
injunction to the effect that the petitioners
may not be dispossessed from Room
No.108, situate in the old age home,
Samarpan at Adil Nagar, Lucknow, without
due process of law.

11. The trial court, issued notices to
the defendants of the suit, who are the
respondents No.1 to 4 before this Court.
The suit came to the contested by the old
age home and its Senior Management
Officials, who filed their objections to the
application under Order 39 Rules 1 and 2
CPC and raised a defence that the
allegations, as made in the plaint as well as
in the application under Order 39 Rules 1
and 2 CPC, were not correct.

12. It was stated by the old age home,
that the petitioners were admitted in the old
age home in the year 2016 after complying
with due formalities including receiving the
security amount and monthly charges and
10 All. Rajendra Prasad Agrawal & Anr. Vs. Samarpan Varishtha Jan Parisar & Ors.
911
consequently were allotted Room No.108.
It was also stated that right from inception,
the petitioner No.2 was aggressive and used
abusive language and used to pick up
quarrel with the staff of the old age home
as well as created an atmosphere which was
not conducive for the well-being of the
other inmates of the old age home.

13. It was also pleaded by the
contesting respondents that initially the
petitioners apologized for their behaviour
and undertook to improve the same,
however, with passage of time, the
behaviour became worse so much so that
the staff members as well as the other
inmates made oral as well as written
complaints against the petitioners.

14. The contesting respondents issued
a notice to the petitioners dated 08.08.2018
and 29.09.2019 and in this notice it was
clearly indicated that in terms of Rule 8, 9
and 19 of the Instructions Manual, the
membership of the petitioners was being
terminated and this may be treated as a
thirty days' notice requiring the petitioners
to vacate the Room No.108. This was
followed
by
another
notice
dated
30.10.2019 and 22.11.2019. It was also
pleaded that despite the aforesaid notices,
the petitioners did not vacate.

15.

An
Advisory
Board
also
constituted in terms of the grant of lease,
and this matter was even placed before the
said Advisory Board, which opined that a
month's time be granted to the petitioners to
improve their behaviour and further the
petitioner No.2 may be examined by a
competent psychiatrist and in case the
situation does not improve, then, an
appropriate decision be taken and the
petitioners be asked to vacate the room in
terms of Rule 21. It was thus urged that
despite the aforesaid precautions, the
petitioners did not vacate nor the behaviour
improved rather the petitioners have
instituted the suit for permanent injunction
and in the aforesaid backdrop their
application for injunction deserves to be
dismissed.

16. The trial court by means of its
order dated 17.12.2019 considering the
respective submissions and the pleadings
on record found that insofar as the
possession of the petitioners is concerned,
the same was not disputed. Their admission
in the old age home was also in accordance
with the Rules. Hence, there was a prima
facie case. Insofar as the issue regarding
mental status of the petitioner no.2 is
concerned and whether they can be asked
to leave are all contentious issues which
can be decided at the time of trial. Also,
holding
that
both
the
balance
of
convenience and irreparable injury was also
tilted in favour of the petitioners, hence,
allowed the application for temporary
injunction and restrained the contesting
defendants from evicting the petitioners
from Room No.108 of the old age home
without due process of law, till the disposal
of the suit.

17. The defendants No.1, 2 and 3 of
the suit preferred a Misc. Civil Appeal
under Order 43 Rule 1(r) CPC before the
District
Judge,
Lucknow
which
was
admitted and registered as Misc. Appeal
No.07/2020 and was placed before the
Additional District Judge, Court No.19,
Lucknow for its hearing.

18. The lower Appellate Court after
hearing the parties allowed the appeal and
set aside the injunction order dated
17.12.2019 and rejected the application for
temporary injunction. The reasoning of the
912 INDIAN LAW REPORTS ALLAHABAD SERIES
lower Appellate Court was that even
though the petitioners may have been able
to make out a prima facie case, but since
for the grant of injunction, the three golden
principles of prima facie case, balance of
convenience and irreparable injury have to
co-exist and the trial court did not deal with
the
two
ingredients
of
balance
of
convenience and irreparable injury which
was re-assessed by the lower Appellate
Court and found that it was not in favour of
the petitioners, hence, it not only allowed
the appeal but also rejected the application
for temporary injunction by means of the
judgment and order dated 20.10.2020.
Being aggrieved, the petitioners have
approached
this
Court
assailing
the
appellate order.

19. Heard Shri Sudeep Kumar,
learned counsel for the petitioners and Dr.
L.P. Misra along with Shri Rohit Verma,
learned counsel for the respondents No.1 to
3 and the State Counsel for the respondent
No.5 and perused the record.

20. The precise submission of Shri
Sudeep Kumar, learned counsel for the
petitioners is that a relief for injunction is
equitable in nature. For grant of an
injunction, it is true that three golden
ingredients have to exist, however, it was
not disputed that the petitioners were in
possession of the disputed property i.e.
Room No.108 in the old age home and
have been residing therein since 2016, thus,
the possession therein was settled and in
view
of
the
settled
possession,
the
petitioners could not be dispossessed
without due process of law.

21. It is further urged that the trial
court had categorically recorded a finding
that the petitioners had been able to make
out a prima facie case and even the balance
of convenience was in favour of the
petitioners and in case if the interim
injunction is not granted, the petitioners
would suffer irreparable injury. It is also
urged that in cases which involves eviction,
demolition of buildings and acts of such
nature, once prima facie case is established
for the purpose of grant of injunction, the
balance of convenience and irreparable
injury also automatically lies in favour of
the
petitioners.
In
support
of
his
submissions, learned counsel for the
petitioners relies upon Para-31 of the
decision of the Apex Court in Seema
Arshad Zaheer & Ors. vs. Municipal
Corporation of Greater Mumbai & Ors.,
reported in (2006) 5 SCC 282.

22. It is further urged by the learned
counsel for the petitioners that at the time
when
the
Court
is
considering
an
application for interim injunction, it is not
required to hold a mini trial. In the instant
case, the possession was admittedly with
the petitioners. This proved the prima facie
case which was also noticed by the trial
court as well as the lower Appellate Court.
Once in the given set of facts, the
injunction was sought that the petitioners
may not be dispossessed without due
process of law, it would indicate that
balance of convenience was also in favour
of the petitioners as in case if the interim
injunction was not given, it would be the
petitioners, who would suffer greater
hardship, being abandoned parents and
senior citizens who would have been put on
the street overnight and this would also
result in an irreparable injury while all
contentious matters were required to be
tested in trial, where all pleas raised by the
defendants could be considered on merits
and in any case it would require evidence
as it was the defendants who had falsely
concocted a plea of mental imbalance of
10 All. Rajendra Prasad Agrawal & Anr. Vs. Samarpan Varishtha Jan Parisar & Ors.
913
the petitioner no.2 which can only be
established by leading evidence and was a
pure question of fact and there was no
material worth its name to arrive at such a
finding on the basis of the affidavits
exchanged between the parties.

23. It is also urged that the petitioners
had paid a sum of Rs.75,000/- at the time of
admission of the petitioners in the old age
home. They were medically examined and
were found to be both mentally and
physically fit. Thus, in the admission form,
the petitioners had opted for lifetime stay
and though the old age home was not
entitled to take more than Rs.25,000/- as
security in terms of the condition of lease
granted by the Nagar Nigam, Lucknow yet
they had charged a higher sum and were
also paid the monthly charges but the crux
of
the
controversy
arose
when
the
petitioners had made complaints in respect
of the functioning of the old age home
which was not proper as well as that the
complaints
and
discomfort
of
the
petitioners as well as other inmates was not
being attended by the authorities and
instead of sorting and fixing the same, the
respondents adopted a ruse of intemperate
behaviour and mental imbalance of the
petitioner no.2 to evict them which was not
proper and even otherwise all these issues
were questions which could only be
decided at the time of final disposal once
the parties are permitted to lead their
evidence.

24. It has also been urged by the
learned counsel for the petitioners that even
assuming that the lower Appellate Court
was of the view that the balance of
convenience and irreparable injury had not
been dealt with by the trial court
appropriately then it ought to have
remanded the matter for a decision a fresh
rather than to have rejected the application.
In support of his submissions, he has relied
upon a decision of the Apex Court in
Meera Mishra vs. Satish Kumar & Ors.,
reported in (2019) 2 SCC 375.

25. It is also urged that even
otherwise on a bare perusal of the plaint
averments, it is seen that the possession of
the petitioners was admitted and the
petitioners had clearly indicated that they
were seeking injunction solely on the
ground of their possession and that they
may not be dispossessed without due
process
of
law;
hence,
once
their
possession was settled since 2016 and apart
from sending the notices, the defendants
having not instituted any proceedings to
lawfully evict the petitioners, thus, it was
clear that in case if the petitioners were not
granted the protection the respondents
would evict them without adopting due
process of law.

26. It is thus urged that the lower
Appellate Court erred and misdirected itself
from the issue at hand and committed an
error manifest on the face of the record and
consequently the appellate order deserves
to be set aside and the injunction granted
by the trial court deserves to be affirmed by
this Court. In support of his submissions,
learned counsel for the petitioners has
relied upon the decisions of the Apex Court
in Ranjit Kaur vs. Major Harmohinder
Singh & Ors., reported in (2011) 15 SCC
95.

27. Per contra, Dr. L.P. Mishra,
learned
counsel
for
the
contestingrespondents No.1 to 3 along with Shri
Rohit Verma, Advocates have submitted
that there is no legal right vested with the
petitioners to continue to occupy and retain
the room in the old age home. It is further
914 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted that at best, the status of the
petitioners in the old age home was that of
a licencee. The Management of the old age
home reserved all rights for maintenance
and upkeep of the old age home and was
also responsible for well-being of its staff
and other inmates.

28. It is further urged that the duty of
the old age home to take care of elderly and
senior citizens is not only confined to the
petitioners but it extends to other inmates
and residents. The Management of the old
age home has never evicted any person. In
case of any circumstances which are
covered in Rule 8, 9 and 19 of the
Instructions, then the old age home reserves
the right to issue a month's notice to such
inmate and ask the said inmates to leave.

29.
In
the
instant
case,
the
Management
had
received
several
complaints from the staff members as well
as the other inmates regarding illbehaviour
of
the
petitioners.
The
behaviour was such that it fell within the
category of mental imbalance. For the
aforesaid purpose, the petitioner No.2 was
required to undergo an examination by the
doctor of the King George's Medical
University,
Lucknow,
Psychiatric
Department,
who
had
prescribed
medication for anxiety and panic attack as
well as for the treatment of depression.
The petitioners had interpolated the said
prescription and had stated that the
petitioner No.2 was not suffering from any
psychiatric disorder. This was indicative
of the fact that the petitioners were
deliberately intending to retain the room
and by adopting such sharp tactics had not
approached the Court with clean hands
and injunction being an equitable remedy
could not be extended in favour of such
litigants as the petitioners.

30. It has further been urged that
though it is not disputed that the petitioners
are in possession of Room No.108, but
their behaviour has vitiated the congenial
atmosphere of the old age home which
cause discomfort to other inmates and for
the
said
reasons,
the
balance
of
convenience was not in favour of the
petitioners. It was further urged that the
video recording showing the petitioner no.2
using abusive language followed by threats
clearly established that the balance of
convenience was not at all in favour of the
petitioners and since there were other old
age homes where the petitioners can
conveniently shift especially where the
petitioners have four children in the city of
Lucknow itself, hence, they can easily shift
and it has also been urged that the
petitioners have not being paying the
monthly charges/the electricity bill and in
the
given
circumstances,
the
lower
Appellate Court has not committed any
error in allowing the appeal and rejecting
the application for injunction and thus
being findings of fact which does not suffer
from any palpable error requiring the
intervention of this Court under Article 227
of the Constitution of India and for the said
reasons, the petition deserves to be
dismissed.

31. It is further urged that the
decisions relied upon by the petitioners do
not apply in the present case inasmuch as
once the licence of the petitioners had been
cancelled in accordance with law by
serving a thirty days' notice which was also
admitted to the petitioners, hence, after the
expiry of the said period, the petitioners did
not have any right to continue as such they
did not even have a prima facie case.
Accordingly, in absence of any prima facie
case, even the issue of balance of
convenience and irreparable injury pales
10 All. Rajendra Prasad Agrawal & Anr. Vs. Samarpan Varishtha Jan Parisar & Ors.
915
into insignificance and for all the reasons
the petition deserves to be dismissed.

32. Before adverting to the respective
submissions, it is seen that the question of
grant of injunction keeps cropping up in
large number of cases and it has been
considered in equal strength both by the
High Courts as well as the Apex Court.

33. It will be apposite to revisit the
settled legal principles and then ascertain as
to whether in light of the principles so
embodied therein, the order impugned
passed by the lower Appellate Court
requires any interference or not.

34. The law regarding grant of
temporary injunction and interlocutory orders
is covered by the Order 39 of the CPC. Upon
perusal of Rule 1 of Order 39 CPC, it would
indicate that where in any suit, it is proved by
affidavit or otherwise- (i) 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 the property with a
view to defrauding the creditors, (c) that the
defendant threatens to dispossess, the plaintiff
or otherwise cause injury to the plaintiff in
relation to any property in dispute in the suit;
the Court may grant an order of temporary
injunction to restrain such acts.

35. It has now been well settled that
before a Court grants a temporary injunction,
it needs to be satisfied that a person seeking
an injunction has a prima facie case in his
favour and that the balance of convenience
and irreparable injury also lies in his favour.

36. The word "prima facie case"
apparently indicates something which at the
first impression makes out a triable case. The
term "prima facie case" should not be
confused with the term "prima facie title"
which has to be established at the trial upon
permitting the parties to lead evidence. Thus,
it means a substantial question which has
been raised and which upon first sight needs
to be investigated and decided on merits.

37. The word "balance of convenience"
denotes that the Court must be satisfied that
the comparative mischief and hardship which
is likely to be caused to the person seeking
injunction is more than the inconvenience
likely to be caused to the other party by
granting such injunction.

38. The word "irreparable injury" on the
other hand guides the Court to be satisfied
that the refusal to grant injunction would
result in such injury which cannot be
compensated in terms of costs or otherwise
and the person seeking injunction needs to be
protected
from
the
consequences
of
apprehended injury.

39. The aforesaid three ingredients have
been noticed by the House of Lords in the
celebrated case of American Cyanamid Co.
vs. Ethicon Ltd., reported in 1975 (1) All
England Reporter 504. The principles
regarding grant of injunction as laid down by
the Lord Diplock in Cyanamid case can be
summarized as under:-

(1) The plaintiff must first satisfy
the court that there is a serious issue to
decide and that if the defendants were not
restrained and the plaintiff won the action,
damages at common law would be
inadequate compensation for the plaintiff's
loss.

(2) The court, once satisfied of
these matters will then consider whether
the balance of convenience lies in favour of
916 INDIAN LAW REPORTS ALLAHABAD SERIES
granting injunction or not, that is, whether
justice would be best served by an order of
injunction.

(3) The court does not and cannot
judge the merits of the parties' respective
cases and that any decision of justice will
be taken in a state of uncertainty about the
parties' rights.

40. The Apex Court in Wander Ltd.
& Anr. vs. Antox India P. Ltd., reported in
1990 (Supp) SCC 727 had the occasion to
consider the principles regarding grant of
injunction and in Paragraphs 9, 13 and 14
of the report has held as under:-

"9. Usually, the prayer for grant
of an interlocutory injunction is at a stage
when the existence of the legal right
asserted by the plaintiff and its alleged
violation are both contested and uncertain
and
remain
uncertain
till
they
are
established at the trial on evidence. The
court, at this stage, acts on certain well
settled principles of administration of this
form of interlocutory remedy which is both
temporary and discretionary. The object of
the interlocutory injunction, it is stated

"...is to protect the plaintiff
against injury by violation of his rights for
which
he
could
not
adequately
be
compensated in damages recoverable in the
action if the uncertainty were resolved in
his favour at the trial. The need for such
protection must be weighed against the
corresponding need of the defendant to be
protected against injury resulting from his
having been prevented from exercising 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."

The
interlocutory
remedy
is
intended to preserve in status quo, the
rights of parties which may appear on a
prima facie case. The court also, in
restraining a defendant from exercising
what he considers his legal right but what
the plaintiff would like to be prevented,
puts into the scales, as a relevant
consideration whether the defendant has
yet to commence his enterprise or whether
he has already been doing so in which
latter
case
considerations
somewhat
different from those that apply to a case
where the defendant is yet to commence his
enterprise, are attracted."

xxx----xxx-----xxx----xxx-----
xxx----xxx-----xxx----xxx-----xxx

"13. On a consideration of the
matter, we are afraid, the appellate bench
fell
into
error
on
two
important
propositions. The first is a misdirection in
regard to the very scope and nature of the
appeals before it and the limitations on the
powers of the appellate court to substitute
its own discretion in an appeal preferred
against a discretionary order. The second
pertains
to
the
infirmities
in
the
ratiocination as to the quality of Antox's
alleged user of the trademark on which the
passing-off action is founded. We shall deal
with these two separately.

14. The appeals before the
Division Bench were against the exercise of
discretion by the Single Judge. In such
appeals, the appellate court will not
interfere with the exercise of discretion of
the court of first instance and substitute its
own discretion except where the discretion
has been shown to have been exercised
arbitrarily, or capriciously or perversely or
where the court had ignored the settled
principles of law regulating grant or
10 All. Rajendra Prasad Agrawal & Anr. Vs. Samarpan Varishtha Jan Parisar & Ors.
917
refusal of interlocutory injunctions. An
appeal against exercise of discretion is said
to be an appeal on principle. Appellate
court will not reassess the material and
seek to reach a conclusion different from
the one reached by the court below if the
one reached by that court was reasonably
possible on the material. The appellate
court would normally not be justified in
interfering with the exercise of discretion
under appeal solely on the ground that if it
had considered the matter at the trial stage
it would have come to a contrary
conclusion. If the discretion has been
exercised by the trial court reasonably and
in a judicial manner the fact that the
appellate court would have taken a
different view may not justify interference
with the trial court's exercise of discretion.
After
referring
to
these
principles
Gajendragadkar, J. in Printers (Mysore)
Private Ltd. v. Pothan Joseph [(1960) 3
SCR 713 : AIR 1960 SC 1156] : (SCR 721)

"... These principles are well
established, but as has been observed by
Viscount Simon in Charles Osenton &
Co. v. Jhanaton [1942 AC 130] ''...the
law as to the reversal by a court of
appeal of an order made by a judge
below in the exercise of his discretion is
well established, and any difficulty that
arises is due only to the application of
well settled principles in an individual
case'."

The appellate judgment does not
seem to defer to this principle."

41. Once again, the Apex Court in
Dalpat Kumar & Anr. vs. Prahlad Singh
& Ors., reported in (1992) 1 SCC 719,
considering the provisions of Order 39
Rule 1(c) CPC in Paragraphs 4 and 5 of
the said report has held as under:-

"4. Order 39 Rule 1(c) provides
that temporary injunction may be granted
where, in any suit, it is proved by the
affidavit or otherwise, that the defendant
threatens to dispossess the plaintiff or
otherwise cause injury to the plaintiff in
relation to any property in dispute in the
suit, 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 ... or dispossession
of the plaintiff or otherwise causing injury
to the plaintiff in relation to any property in
dispute in the suit as the court thinks fit
until the disposal of the suit or until further
orders. Pursuant to the recommendation of
the Law Commission clause (c) was
brought on statute by Section 86(i)(b) of the
Amending Act 104 of 1976 with effect from
February 1, 1977. Earlier thereto there
was no express power except the inherent
power under Section 151 CPC to grant ad
interim injunction against dispossession.
Rule 1 primarily concerned with the
preservation of the property in dispute till
legal rights are adjudicated. Injunction is a
judicial process by which a party is
required to do or to refrain from doing any
particular act. It is in the nature of
preventive relief to a litigant to prevent
future possible injury. In other words, the
court, on exercise of the power of granting
ad interim injunction, is to preserve the
subject matter of the suit in the status quo
for the time being. It is settled law that the
grant of injunction is a discretionary relief.
The exercise thereof is subject to the court
satisfying that (1) there is a serious
disputed question to be tried in the suit and
that an act, on the facts before the court,
there is probability of his being entitled to
the
relief
asked
for
by
the
plaintiff/defendant;
(2)
the
court's
interference is necessary to protect the
party from the species of injury. In other
918 INDIAN LAW REPORTS ALLAHABAD SERIES
words, irreparable injury or damage would
ensue before the legal right would be
established at trial; and (3) that the
comparative hardship or mischief or
inconvenience which is likely to occur from
withholding the injunction will be greater
than that would be likely to arise from
granting it.

5. Therefore, the burden is on the
plaintiff by evidence aliunde by affidavit or
otherwise that there is "a prima facie case"
in his favour which needs adjudication at
the trial. The existence of the prima facie
right and infraction of the enjoyment of his
property or the right is a condition for the
grant of temporary injunction. Prima facie
case is not to be confused with prima facie
title which has to be established, on
evidence at the trial. Only prima facie case
is a substantial question raised, bona fide,
which needs investigation and a decision
on merits. Satisfaction that there is a prima
facie case by itself is not sufficient to grant
injunction. The Court further has to satisfy
that non-interference by the Court would
result in "irreparable injury" to the party
seeking relief and that there is no other
remedy available to the party except one to
grant injunction and he needs protection
from the consequences of apprehended
injury or dispossession. Irreparable injury,
however, does not mean that there must be
no physical possibility of repairing the
injury, but means only that the injury must
be a material one, namely one that cannot
be adequately compensated by way of
damages. The third condition also is that
"the balance of convenience" must be in
favour of granting injunction. The Court
while granting or refusing to grant
injunction should exercise sound judicial
discretion to find the amount of substantial
mischief or injury which is likely to be
caused to the parties, 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. If on weighing
competing possibilities or probabilities of
likelihood of injury and if the Court
considers that pending the suit, the subject
matter should be maintained in status quo,
an injunction would be issued. Thus the
Court has to exercise its sound judicial
discretion in granting or refusing the relief
of ad interim injunction pending the suit."

42. Again, in the case of Gujarat
Bottling Co. Ltd. & Ors. vs. Coca Cola Co.
& Ors., reported in (1995) 5 SCC 545
noticing the English as well as earlier
authorities of the Apex Court in Paragraphs
42, 43 and 47 has held as under:-

"42. In the matter of grant of
injunction, the practice in England is that
where a contract is negative in nature, or
contains an express negative stipulation,
breach of it may be restrained by injunction
and injunction is normally granted as a
matter of course, even though the remedy is
equitable
and
thus
in
principle
a
discretionary one and a defendant cannot
resist an injunction simply on the ground
that
observance
of
the
contract
is
burdensome to him and its breach would
cause little or no prejudice to the plaintiff
and that breach of an express negative
stipulation can be restrained even though
the plaintiff cannot show that the breach
will cause him any loss. [See: Chitty on
Contracts, 27th Edn., Vol. I, General
Principles, paragraph 27-040 at p. 1310;
Halsbury's Laws of England, 4th Edn., Vol.
24, paragraph 992.] In India Section 42 of
the Specific Relief Act, 1963 prescribes that
notwithstanding anything contained in
clause (e) of Section 41, where a contract
comprises an affirmative agreement to do a
certain act, coupled with a negative
10 All. Rajendra Prasad Agrawal & Anr. Vs. Samarpan Varishtha Jan Parisar & Ors.
919
agreement, express or implied, not to do a
certain act, the circumstance that the court
is unable to compel specific performance of
the
affirmative
agreement
shall
not
preclude it from granting an injunction to
perform the negative agreement. This is
subject to the proviso that the plaintiff has
not failed to perform the contract so far as
it is binding on him. The Court is, however,
not bound to grant an injunction in every
case and an injunction to enforce a
negative covenant would be refused if it
would indirectly compel the employee
either to idleness or to serve the employer.
[See: Ehrman v. Bartholomew [(1898) 1
Ch 671 : (1895-99) All ER Rep Ext 1680]
;N.S. Golikari [(1967) 2 SCR 378 : AIR
1967 SC 1098 : (1967) 1 LLJ 740] at p.
389.]

43. The grant of an interlocutory
injunction during the pendency of legal
proceedings is a matter requiring the
exercise of discretion of 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
plaintiff would suffer an irreparable injury
if his prayer for interlocutory injunction is
disallowed. The decision whether or not to
grant an interlocutory injunction has to be
taken at a time when the existence of the
legal right assailed by the plaintiff 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 injunction 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 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. 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 exercising 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. v. Antox India (P) Ltd.[1990
Supp SCC 727] , (SCC at pp.