Judgment:
R.K. Dash, J.
1. This appeal under Order 43, Rule l(r) of the Code of Civil Procedure (for short, 'the Code') is directed against the order of the learned Civil Judge (Senior Division), Bhubaneswar, passed in Misc. Case No. 144 of 1995 arising out of title Suit No. 101 of 1994, whereby the plaintiff's prayer for temporary injunction has been partly refused. The aforesaid suit filed by the plaintiffs is one for partition of Ac.0. 110 decs. of land appertaining to Sabik Plot No. 50 which corresponds to Hal Plot . No. 1241 under Hal Khata No. 4 of mouza Bhubaneswar, Unit - 3, Kharavelanagar (hereinafter referred to as 'the suit land').
2. The case of the plaintiffs, in brief, is that the State Government in General Administration Department being the owner of the suit land settled the same on 8.3.1960 by way of lease for a period of 90 years with Sk. Md. Azim, the common ancestor of the parties. Having obtained possession the lessee constructed his residential house and was residing there with his family till his death. He is survived by 17 children and two wives and they all arc parties to the suit. Both the wives, according to Mohamadan Law arc entitled to 1/8 shares and remaining others are jointly emitted to 7/8 share in the estate left by Sk. Md. Azim. Therefore, plaintiff's shares HI she suit land as calculated comes to 90/208th share. Presently plaintiff No. 5 and defendants 1 to 7 are occupying the house standing on the sun land and others are staying outside to earn their livelihood. Taking advantage of the absence of the plaintiffs, defendants 1 to 7 without their consent and consent of other co-sharers, forcibly demolished a portion of the house and constructed some shop rooms by taking huge amount as advance from some businessmen with an understanding that after completion these would be let out to them. This led the plaintiffs to file the suit for partition of the suit land and for allotment of their share.
3. During pendency of the suit, plaintiffs sought for temporary injunction restraining the defendants from making any further construction on the suit land and altering the existing construction till disposal of the suit. This was resisted by the defendants contending, inter alia, that they are the sole owners of the suit land having obtained the same by means of a gift (Meba) from the original issues.
4. An Advocate Commissioner was deputed for local inspection, who having visited the spot submitted report that construction of the second storey has gone upto roof level. Taking this factual aspect, into consideration, the learned Court below while restraining the defendants from making any new construction on any portion of the vacant area, allowed the defendants to complete the construction of the building which has already been taken up and is in progress.
5. Before adverting to the question whether the impugned order is legally sustainable, it is necessary to find as to what is the scope and extent of the power of appellate Court in dealing with such matters. The grant or refusal of injunction rests on the sound exercise of judicial discretion of the trial Court and once that discretion is exercised, the same cannot be lightly interfered with by the appellate Court, unless it is shown that such exercise of discretion in unreasonable and capricious. Reference in this context may be made to certain judicial pronouncements. The Calcutta High Court in the case of Kali Charan v. Kissan Lal Choudhury : AIR 1959 Calcutta 17, observed thus :
The granting or refusal of an order of injunction is in the discretion of the trial Court and when the trial Court has in the exercise of discretion decided to grant or refuse the prayer, it is certainly the right and duty of the Court of Appeal to set aside its order and make its own order and exercise its own discretions when it is satisfied that there was no exercise of judicial discretion by the trial Court or that the ground or the basis of which the discretion has been exercised was wrong...'
The Rajasthan High Court in Smt. Vimla Devi v. Jang Bahadur: AIR 1977 Rajasthan 196 held:
'The, order refusing temporary injunction is of a discretionary character. Ordinarily Court of Appeal will not interfere with the exercise of discretion passed by the trial Court and substitute for its own discretion. The interference with the discretionary order however, may be justified if the lower Court. acts arbitrarily or perversely, capriciously 01 in disregard of sound legal principles or without considering ail relevant records'.
In view of the aforesaid judicial pronouncements the question arises as to whether the impugned order passed by the trial Court was in exercise of sound judicial discretion vested an it.
6. An injunction is a writ. remedial, issued by the order of the Court of equity in those cases where the party is entitled to equitable relief. This equitable remedy is discretionary in nature and is never granted as a matter of course. The circumstance under which temporary injunction may be granted have by now been settled. Where in a suit it. is proved by affidavit or otherwise that any property in dispute is in danger of being wasted, damaged or alienated, by any party to the suit or to restrain the defendant from committing injury of any kind, relating to the same property or right, the Court may grant temporary injunction at its discretion on such terms as to the duration of injunction and subject to a condition as the Court thinks fit. Three conditions are to be satisfied by the party seeking injunction; namely: (i) that he has a prima facie case, (ii) that balance of convenience leans in his favour. i.e. it would cause greater inconvenience to him if injunction is not granted than that which is likely Jo arises, if injunction is granted, and (iii) that he will sustain irreparable loss, in other words the loss to be sustained by him cannot, be compensated with money.
7. ''Prima facie case' does not necessarily mean that it must be shown that in all probability the party applying for injunction would succeed in the suit. It would be sufficient if he can show that he has a fair question to raise as to the existence of right he claims and that it is necessary in the interest of justice to preserve the said right till disposal of the suit. The expression 'prima facie' is to look into the matter on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary. In Halsbury's Laws, of England, third Edition, Vol. 21 at page 365 the principles with regard to 'prima. facie' case have been stated thus :
' xxx It is not necessary that the Court should find a case winch would entitle she plaintiff to relief at all events; it is quite sufficient if the Court finds a case which shows that there is a. substantial question to be investigated, and that matters ought to be preserved in status quo until that question can be finally disposed of........'
Similar view was expressed by this Court in the case of Paidisatti Bhankaranarayana v. Paidisatti Rajeswar Rao : AIR 1991 Ori. 92.
8. 'Balance of convenience' is an essential ingredient of the triple tests required for granting injunction. The Court while considering the question of balance of convenience must pertinently put the question, would the plaintiff suffer irreparable damage if no injunction is granted.
9. So far as 'irreparable injury' is concerned, the party applying for injunction must satisfy the Court that its interference is necessary to protect him from irreparable or serious injury before his legal rights could be established at the trial. The term 'irreparable injury' in its technical sense, and injury is irreparable either that no legal remedy furnishes full compensation or adequate redress owing to the inherent ineffectiveness of such legal remedy, or that, owing to the delay incident to the prosecution of an action at law to final Judgment and obtaining service thereon, such Judgment and process would prove fruitless of beneficial results. In Halsbury's Laws of England, 3rd Edition, Vol. 21 Section 739 page 352, it is stated that by the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages'. (See Kerr on Injunction, 5th Edition, page 19).
10. Learned Subordinate Judge though reproduced the three well-known principles as aforesaid for grating or refusing injunction; but unfortunately he failed to apply the same to the facts and circumstances of the present case. It may be reiterated, the parties to the suit are the descendants of the common ancestor Sk. Md. Azim which fact has not been denied or disputed by the defendants and the property involved in the suit is most valuable property situated in the heart of State Capital, Bhubaneswar. From the narration of the pleadings of the plaintiffs, a 'prima facie' case has been made out, inasmuch as they being admittedly the successors of Sk. Md. Azim, the lessees, have sought for partition of their share in the suit land. On the other hand, the defendants-respondents, assert that they are the sole owners of the suit land having obtained the same by virtue of 'Heba' from the lessee. No 'Hebanama', if any, was brought to the notice of the Court below, when the impugned order was passed. Admittedly the defendants have built up some shop rooms abutting the main road and have let out the same. According to the plaintiffs, in order to deny them their legitimate share in the suit land, the defendants hurriedly took up construction of the second storey for which they prayed for Court's intervention to restrain them from putting up further construction or altering the existing construction till disposal of the suit. So far ns other two ingredients viz., 'balance of convenience' and 'irreparable injury' are concerned, in the facts and circumstances those are. satisfied, inasmuch as if ultimately plaintiffs' suit is decreed and prayer for partition is granted, then the defendants may lay a claim that the newly constructed building abutting the main road be allotted to their share. If their such prayer is accepted, it may cause great hardship to the plaintiffs and loss caused to them cannot be compensated for damages.
11. In view of discussions made above and on consideration of the facts and circumstances of the case, I am of the considered opinion that this is a fit case where injunction should be granted. Resultantly the impugned order rejecting part of the plaintiffs' prayer for injunction is set aside. Consequently, the defendants are restrained from proceeding with any construction and/or altering the nature and character of the suit land till disposal of the suit. It is further ordered that rent collected by the defendants from the tenanted premises shall be deposited every month in the trial Court without any deduction therefrom. Withdrawal of the deposited amount can only be made on the basis of the ultimate findings in the suit. If defendants fail to deposit the rent on any month the plaintiff shall be free to move the trial Court for appointment of receiver. Before concluding I may observe that anything said in this Judgment will not influence the mind of the trial Court while disposing of the suit on merits.