2025:UHC:6736

HIGH COURT OF UTTARAKHAND

AT NAINITAL

Writ Petition (M/S) No. 2404 of 2024

Divisional Manager and Another …Petitioners

Versus

Sharda Devi Saxena and Another …Respondents

Advocates : Mr. Ashish Joshi, Advocate for the petitioners.

Mr. M.C. Kandpal, Senior Advocate for respondent No. 1

Mr. Lalit Sharma, Advocate for Nagar Nigam/respondent No. 2

Hon’ble Manoj Kumar Tiwari , J.

1. Petitioners have challenged the order dated

26.04.2022 passed by learned Civil Judge (Senior

Division), Rudrapur, District Udham Singh Nagar in Civil

Suit No. 158 of 2021, whereby Temporary Injunction

Application filed by respondent No. 1, was allowed.

Petitioners have also challenged judgment dated

07.03.2024, rendered by 3

rd

Additional District Judge,

Rudrapur, District Udham Singh Nagar, in Civil Appeal

No. 19 of 2022 , whereby Trial Court’s order was

affirmed.

2. Learned counsel for the petitioners submits that

respondent No. 1 filed a suit for permanent injunction

and declaration, in which Divisional General Manager

and Assistant Divisional Manager, Uttarakhand

Transport Corporation were added as defendant Nos. 1

and 2 and Municipal Corporation, Rudrapur was arrayed

as proforma defendant No. 3. He submits that

respondent No. 1, in her suit, did not claim that she is

owner of the property in question and she simply

stated that she is continuing in possession over the

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land in suit for more than 40 years. He submits that the

land in question is nazul land belonging to State

Government, which was allotted to Uttarakhand

Transport Corporation for construction of Inter State

Bus Terminal (ISBT) vide G.O. dated 04.10.2011 ;

however, due to temporary injunction granted in favour

of respondent No. 1, construction work of I SBT is

stalled.

3. Learned counsel for the petitioners further submits

that learned Trial Court as well as learned Appellate

Court have not considered whether plaintiff

(respondent No. 1 herein) has been able to make out

any prima facie case and without considering the said

aspect, temporary injunction was granted to her . He

submits that plaintiff could not show any prima facie

case, yet temporary injunction was granted in her

favour. He further submits that learned Courts below

erred in not considering whether temporary injunction

can be granted at the instance of trespasser against the

true owner of a property.

4. The order passed by learned Trial Court reveals

that petitioner mentioned in its objection that the land

in question was nazul land and State Government

allotted the same to Uttarakhand Transport Corporation

for setting up Inter State Bus Terminal, vide G.O. dated

04.10.2011. It further reveals that respondent no. 1 in

her plaint admitted that it is a government land and

Respondent No. 1 claimed that she applied for freehold

right to the State Government, however, she did not

add State of Uttarakhand as defendant in the suit.

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5. Stand taken by Nagar Nigam, Rudrapur is

considered and discussed in para 4 of Trial Court’s

order. Nagar Nigam stated that house of the plaintiff is

standing over nazul land, allotted to Uttarakhand

Transport Corporation; although plaintiff claimed that

she is in possession over the land in question since last

45 years, however, there is no evidence whatsoever to

support that claim; the land which is occupied by

plaintiff is under control of Uttarakhand Transport

Corporation and Nagar Nigam has nothing to do in the

matter, therefore, there is no cause of action available

to plaintiff against Nagar Nigam.

6. Learned counsel for the petitioners submits that

learned Trial Court has not considered relevant aspects

while granting temporary injunction in favour of the

plaintiff (respondent No. 1).

7. He submits that injunction was granted merely

because plaintiff claimed that she is in unauthorised

occupation of the land in question. He submits that

even if that claim is taken on its face value, then also,

the status of the plaintiff would be that of a trespasser

and law is well settled that no injunction can be

granted against the true owner of a property at the

instance of persons in unlawful possession.

8. He submits that in the absence of a strong prima

facie case, order of temporary injunction cannot be

passed; however, learned Trial Court granted

temporary injunction in favour of plaintiff in a

perfunctory manner without considering whether there

is any prima facie case in favour of the plaintiff.

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9. Learned counsel for petitioners placed reliance

upon judgment rendered by Hon’ble Supreme C ourt in

the case of Mahadeo Savlaram Shelke and others

Vs. Pune Municipal Corporation and Another,

reported in (1995) 3 SCC 33. In para 9 of the said

judgment, Hon’ble Supreme Court has observed that

“It is settled law that no injunction could be granted

against the true owner at the instance of persons in

unlawful possession”. Para 14 and 15 of the said

judgment are reproduced below:

“14. It would thus be clear that in a suit for perpetual (sic)

injunction, the court should enquire on affidavit evidence and

other material placed before the court to find strong prima facie

case and balance of convenience in favour of granting injunction

otherwise irreparable damage or damage would ensue to the

plaintiff. The court should also find whether the plaintiff could

adequately be compensated by damages if injunction is not

granted. It is common experience that injunction normally is

asked for and granted to prevent the public authorities or the

respondents to proceed with execution of or implementing

scheme of public utility or granted contracts for execution

thereof. Public interest is, therefore, one of the material and

relevant considerations in either exercising or refusing to grant

ad interim injunction. While exercising discretionary power, the

court should also adopt the procedure of calling upon the plaintiff

to file a bond to the satisfaction of the court that in the event of

his failing in the suit to obtain the relief asked for in the plaint,

he would adequately compensate the defendant for the loss

ensued due to the order of injunction granted in favour of the

plaintiff. Even otherwise the court while exercising its equity

jurisdiction in granting injunction has also jurisdiction and power

to grant adequate compensation to mitigate the damages caused

to the defendant by grant of injunction restraining the defendant

to proceed with the execution of the work etc. The pecuniary

award of damages is consequential to the adjudication of the

dispute and the result therein is incidental to the determination

of the case by the court. The pecuniary jurisdiction of the court

of first instance should not impede nor be a bar to award

damages beyond its pecuniary jurisdiction. In this behalf, the

grant or refusal of damages is not founded upon the original

cause of action but the consequences of the adjudication by the

conduct of the parties, the court gets inherent jurisdiction in

doing ex debito justitiae mitigating the damage suffered by the

defendant by the act of the court in granting injunction

restraining the defendant from proceeding with the action

complained of in the suit. It is common knowledge that

injunction is invariably sought for in laying the suit in a court of

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lowest pecuniary jurisdiction even when the claims are much

larger than the pecuniary jurisdiction of the court of first

instance, may be, for diverse reasons. Therefore, the pecuniary

jurisdiction is not and should not stand an impediment for the

court of first instance in determining damages as part of the

adjudication and pass a decree in that behalf without relegating

the parties to a further suit for damages. This procedure would

act as a check on abuse of the process of the co urt and

adequately compensate the damages or injury suffered by the

defendant by act of court at the behest of the plaintiff.

15. Public purpose of removing traffic congestion was

sought to be served by acquiring the building for widening the

road. By orders of injunction, for 24 years the public purpose

was delayed. As a consequence execution of the project has

been delayed and the costs now stand mounted. The courts in

the cases where injunctions are to be granted should necessarily

consider the effect on public purpose thereof and also suitably

mould the relief. In the event of the plaintiffs losing the suit

ultimately, they should necessarily bear the consequences,

namely, escalation of the cost or the damages the Corporation

suffered on account of injunction issued by the courts. Appellate

court had not adverted to any of the material aspects of the

matter. Therefore, the High Court has rightly, though for

different reasons, dissolved the order of ad interim injunction.

Under these circumstances, in the event of the suit to be

dismissed while disposing of the suit the trial court is directed to

assess the damages and pass a decree for recovering the same

at pro rata against the appellants.”

10. Learned Senior Counsel appearing for respondent

No. 1 supports the order passed by Trial Court and the

Appellate Court and submits that Nagar Nigam,

Rudrapur is the owner of the land and not Uttarakhand

Transport Corporation. He submits that possession of

respondent no. 1 dates back to 1980 and the house

constructed by her is situated in Mohalla Darianagar,

Rudrapur, District Udham Singh Nagar, which is far

away from the land allotted to Uttarakhand Transport

Corporation.

11. Learned Senior Counsel further submits that

respondent no. 1 is having receipts of property tax and

electricity charges for the last several decades which

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prove her claim that her house is standing over the

land in question since 1980. He further submits that

conditional allotment of land was made in favour of

Uttarakhand Transport Corporation vide G.O. dated

04.10.2011; he refers to para 4 of the said G.O. where

it is mentioned that if the land is not utilised for the

purpose it was allotted within three years, then the

allotment shall stand cancelled and land will revert back

to the Housing Department of State Government. Thus

he submits that since the land was allotted in 2011 and

Uttarakhand Transport Corporation has not constructed

ISBT up till now, even after expiry of more than 13

years, therefore, allotment of land made in favour of

Uttarakhand Transport Corporation stood cancelled and

the land is now vested in the State Government.

12. The issues raised by learned Senior Counsel for

respondent No. 1 touch the merits of the suit,

therefore, any observation by this Court on the said

issues would not be warranted at this stage, as the suit

is yet to be decided by Trial Court.

13. Perusal of the order on temporary injunction

passed by Trial Court on 26.04.2022 reveals that

learned Trial Court has considered prima facie case in a

slipshod manner.

14. In the case of Dorab

Cawasji Warden v. Coomi

Sorab Warden , reported in (1990) 2 SCC 117

,

Hon’ble Supreme Court held as follows:

“16. The relief of interlocutory mandatory injunctions are

thus granted generally to preserve or restore the status

quo of the last non- contested status which preceded the

pending controversy until the final hearing when full relief

may be granted or to compel the undoing of those acts

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that have been illegally done or the restoration of that

which was wrongfully taken from the party complaining.

But since the granting of such an injunction to a party who

fails or would fail to establish his right at the trial may

cause great injustice or irreparable harm to the party

against whom it was granted or alternatively not granting

of it to a party who succeeds or would succeed may

equally cause great injustice or irreparable harm, courts

have evolved certain guidelines. Generally stated these

guidelines are:

(1) The plaintiff has a strong case for trial. That is,

it shall be of a higher standard than a prima facie

case that is normally required for a prohibitory

injunction.

(2) It is necessary to prevent irreparable or serious

injury which normally cannot be compensated in

terms of money.

(3) The balance of convenience is in favour of the

one seeking such relief.”

15. The expression ‘prima facie case’ was considered

and discussed by Hon’ble Supreme Court in the case of

Dalpat Kumar and another Vs. Prahlad Singh and

others, reported in (1992) 1 SCC 719. Para 5 of the

said judgment is reproduced below:-

“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

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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.

16. The discussion made by learned Trial Court on

prima facie case thus falls short on what is required by

law. Therefore, the order passed by learned Trial Court

as affirmed by Appellate Court, deserve to be set aside

and are hereby set aside. The matter is remitted back

to learned Trial Court to decide Temporary Injunction

Application, filed by respondent No. 1 afresh, as per

law within three weeks. Till disposal of Temporary

Injunction Application by the Trial Court, status quo,

qua possession over the land in question, as existing

today, shall be maintained.

(Manoj Kumar Tiwari , J.)

31.07.2025

Mahinder/

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