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Roll Number - 2016LJA
GURU NANAK DEV UNIVERSITY - 2nd^ MOOT COURT
SEMESTER 9
Before
THE CIVIL JUDGE SENIOR DIVISION
APPLICATION NO. ____ OF 2021
UNDER ORDER XXXIX, RULE 1 AND RULE 2 OF CIVIL
PROCEDURE CODE, 1908
BETWEEN
PLANTIFF………………………………………………APPLICANT
v.
DEFENDANT……………………………………………RESPONDENT
IN THE MATTER CONCERNING AD-INTERIM INJUNCTION
MEMORIAL ON BEHALF OF RESPONDENT
TABLE OF CONTENTS
- LIST OF ABBREVIATIONS………………………………
- INDEX OF AUTHORITIES………………………………
- • Cases………………………………………………………………
- • Books and Lexicons………………………………………………
- • Statutes……………………………………………………………
- STATEMENT OF JURISDICTION………………………….……
- STATEMENT OF FACTS…………………………………….……
- ISSUES PRESENTED………………………………………..……
- SUMMARY OF ARGUMENTS………………………………….…
- ARGUMENTS ADVANCED ………………………………………….
- [1.1] Definition of Ad-Interim Injunction……………….………… [1] WHETHER THE APPLICATION IS MAINTAINABLE?
- [1.2] Prima Facie Case………………………………………….……
- [1.3] Irreparable Injury……………………..………………..……
- [1.4] Balance of (In)convenience……………………………….…
- PRAYER…………………………………………………………………
INDEX OF AUTHORITIES
• CASE LAWS CITED :
Issue I
1. Dorab Cawasji Warden vs. Coomi Sorab Warden and Ors., 1990 AIR 867
2. Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad,
1995(5) SCC 545
3. Martin Burn Ltd. V R.N. Banerjee, AIR 1958 SC 79
4. Seema Arshad Zaheer and Others v. Municipal Corpn. of Greater Mumbai and
others, 2006 (4) KLT 65 (SC)
5. Dalpat Kumar v Prahlad Singh, AIR 1993 SC 276
6. Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974)
40 Cut LT 336
7. Mathew Philips vs P.O. Koshy, AIR 1966 Kant 74
8. Dr. K. Panduranga Nayak vs Smt. Jayashree, AIR 1990 Kant 236
9. Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974)
40 Cut LT 336
10. American Cyanamid Co. v. Ethicon Ltd., 1975 (AC) 396
• BOOKS USED :
• STATUTES USED :
S. No. NAME OF BOOK
1. Civil Procedure (CPC) with Limitation Act, 1963,C.K.Takwani
Eastern Book Co.(EBC)
S.No. STATUTES
1. The Code of Civil Procedure, 1908 2. (^) Specific Relief Act 1963
STATEMENT OF FACTS
RELATIONSHIP BETWEEN THE PARTIES
The plaintiff, in the present case, is the elder brother of the defendant. He acquired a property and constructed the same. When this event took place, the defendant was 17 years old. Further, the plaintiff permitted the defendant to stay on the 1st^ floor of the said property.
RELATIONSHIP TURNED SOUR
After the marriage of the plaintiff, the relations between the two brothers turned sour. The reason behind this turn in the relationship was because of the obstruction caused by the defendant when the plaintiff wanted to construct two toilets on the ground floor and along with that raise construction on the 2nd^ floor.
LEGAL RECOURSE
Infuriated by the obstruction caused by the defendant, the plaintiff filed a suit for possession of the 1st^ floor, declaration and injunction. Along with this suit, he also moved an application under Order XXXIX, Rule 1 and Rule 2 of the Civil Procedure Code, 1908 for ad-interim injunction.
THE TWO STAIRCASES
The ad-interim injunction is for the removal of the staircase which according to the plaintiff, has been constructed by the defendant in the front of the property without taking the consent of the plaintiff or a sanction of the municipal corporation. The plaintiff alleges that there is a staircase in the backside, which is properly sanctioned and in use. He further states that, he cannot enjoy his property unless the construction by the defendant is removed.
ISSUE PRESENTED
ISSUE I
WHETHER THE APPLICATION MADE BY THE APPLICANT
FOR THE AD-INTERIM INJUNCTION FOR THE REMOVAL OF
THE OF THE FRONT STAIRCASE IS MAINTAINABLE OR NOT?
ARGUMENTS ADVANCED
ISSUE I : WHETHER THE APPLICATION FOR AD-INTERIM
INJUNCTION IS MAINTAINABLE OR NOT?
[1.1] Meaning of Ad-Interim Injunction :
- It is humbly submitted before the Honourable Court that the application filed by the Plaintiff for the removal of the staircase in front of house through an ad-interim injunction is not maintainable since the Plaintiff in the present case has no prima facie case which is the most important requirement for the grant of an injunction order by the Court, neither he has suffered any irreparable injury and the balance of convenience also swings in favour of the defendant. Further, it is an admitted fact on record that defendant is in the permissive possession of the first floor. Even though he is not owner, yet he is in possession, hence he cannot be removed from possession forcibly except in due course of law, hence as long as he is in possession of the first floor, he is entitled to all the easements attached with the first floor of the suit property.
- The Black’s Law Dictionary defines Injunction as “a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury.”^2
- The Cambridge Dictionary defines Injunction as “an official order given by a law court, usually to stop someone from doing something.”^3 (^2) Black’s Law Dictionary - Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, By HENRY CAMPBELL BLACK, M. A. (^3) Cambridge Dictionary
- An injunction is a judicial process whereby a party is required to do , or to refrain from doing, any particular act. It is a remedy in the form of an order of the court addressed to a particular person that either prohibits him from doing or continuing to do a particular act (prohibitory injunction); or orders him to carry out a certain act (mandatory injunction).^4
- The present application is that of an ad-interim injunction which is basically a stage of the temporary injunction. A temporary injunction, may as it very often does, consists of two stages, one granted without finally disposing of the application for injunction to operate immediately till the disposal of the said application and the other granted while finally disposing of the main application to ensure generally till the disposal of the suit. While the former is generally classed as “ ad interim injunction ” , the latter is generally called “ temporary injunction ”. 5
- Before granting the injunction as an equitable relief, the Court has to satisfy itself regarding the fulfilment of three essential factors. These factors, known as the “ three pillars ”, are the foundation on which every order of injunction rests. Apart from this, it is also referred to as the “ triple test ” for the grant of interim injunction. These factors are as follows : (i) Whether the plaintiff has a prima facie case? (ii) Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction is not granted? (iii) Whether the balance of (in)convenience is in favour of the plaintiff?
- In Dorab Cawasji Warden vs. Coomi Sorab Warden and Ors. 6 , the Honourable Supreme Court of India laid down guidelines to be followed while granting injunctions. The guidelines are as follow : (^4) Halsbury's Laws of England (4th (^) Edn.) Vol. 24, para 901 (^5) Jagjit Singh Khanna vs Dr. Rakhal Das Mullick And Anr., AIR 1988 Cal 95 (^6) 1990 AIR 867
- It is further submitted that the plaintiff himself permitted the defendant stay on the first floor. Hence it is clearly meted out that the defendant has the permissive possession of the first floor. Further, defendant is entitled to enjoy easements attached with first floor. The staircase at the backside of the property doesn't allow the defendant to properly enjoy fruits of the first floor. Moreover, the plaintiff has to adduce evidence to justify that the staircase constructed by the defendant is unauthorised and unapproved by municipal corporation.
- It is further submitted that this is a vexatious litigation on behalf of the plaintiff. He had the opportunity to approach the Municipal Corporation when he had a problem with the construction of the staircase in front of the house. Rather than doing so, he has now approached the Court for a remedy which he could’ve availed earlier. The reasons are just to harass the defendant and just to get back at him.
- In Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad 8 , it was held that "Prima facie case" means that the Court should be satisfied that there is a serious question to be tried at the hearing, and there is a probability of Plaintiff obtaining the relief at the conclusion of the trial on the basis of the material placed before the Court. "Prima facie case" is a substantial question raised bona fide which needs investigation and a decision on merits. The Court, at the initial stage, cannot insist upon a full proof case warranting an eventual decree. If a fair question is raised for determination, it should be taken that a prima facie case is established. The real thing to be seen is that the Plaintiff’s claim is not frivolous or vexatious.”
- In Martin Burn Ltd. V R.N. Banerjee 9 , it was held by the Supreme Court that “A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is (^8) 1995(5) SCC 545 (^9) AIR 1958 SC 79
whether on the evidence led it was possible to arrive at the conclusion in question and as to whether that was the only conclusion which could be arrived at on that evidence.”
- In Seema Arshad Zaheer and Others v. Municipal Corpn. of Greater Mumbai and others 10 , it was held by the Supreme Court that “The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction. (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands. ”
- In Dalpat Kumar v Prahlad Singh 11 , it was held by the Supreme Court that “The burden is on the plaintiff to satisfy the court by leading evidence or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial.
[1.3] Irreparable Injury :
- In Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh 12 , the Orissa High Court held that, ‘ Irreparable injury’ means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused. (^10) 2006 (4) KLT 65 (SC) (^11) AIR 1993 SC 276 (^12) (1974) 40 Cut LT 336
any legal right of the plaintiff has been infringed or that he has any locus standi to maintain the suit. I do not wish to prejudice the final result of his suit by expressing any final opinion in the matter. The existence of a doubt as to the right of the plaintiff is sufficient to refuse the application for a temporary injunction.”
- In Dr. K. Panduranga Nayak vs Smt. Jayashree 14 , the Karnataka High Court held that “The injunction sought for in the instant suit is that the Corporation Commissioner should be restrained from regularising these deviations. Such a relief is wholly unthinkable as rightly observed by the trial Court. Certain amount of discretion vests in the Commissioner and it is for him to take appropriate action as he deems fit. If the plaintiff does not sustain injury by such deviation then the Civil Court cannot grant injunction either prohibitory or mandatory as there is provision for approaching the Commissioner complaining of such a deviation.” [1.4] Balance of (In)convenience
- In Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh 15 , the Orissa High Court held that, ‘Balance of convenience’ means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff, if temporary injunction is refused, would be balanced and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then interlocutory injunction alone should be granted.
- Balance of convenience as under Halsbury's Laws of England - Unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the (^14) AIR 1990 Kant 236 (^15) Supra 12
balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.^16
- It is humbly submitted before the Honourable Court that granting of the interim injunction will cause greater inconvenience to the defendant than the plaintiff.the defendant has used his money to build the front staircase to which the plaintiff impliedly consented by not objecting it at the time of the construction and also not approaching the municipal authorities. Granting of the interim construction will lead to demolition of the staircase. If at trial the suit concludes in favour of the defendant then reconstruction of the staircase will be a costly affair for the defendant.
- It is further submitted that the plaintiff has filed for the demolition of the staircase out of malice. The defendant has been peacefully using the staircase continuously without any interference. It is only the plaintiff who has obstructed his peaceful enjoyment in order to get back at the defendant for the obstruction that he cause when the plaintiff tried to raise construction. Hence, balance of convenience swings in favour of the defendant.
- In American Cyanamid Co. v. Ethicon Ltd. 17 , Lord Diplock observed that “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; but the plaintiff's 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 under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where "the balance of convenience" lies.” (^16) Halsbury's Laws of England (Fourth Edition Reissue, 1991, Volume 24). (^17) 1975 (AC) 396
