JUDGMENT
P.K. Misra, J.
1. Plaintiff has filed the present Civil Revision against the orders of the trial Court and appellate Court rejecting the application for grant of temporary injunction under Order 39, Rules 1 and 2, Code of Civil Procedure (in short, the “C.P.C.”).
2. There is no dispute that the present opposite party is the owner of a building known as “Garden Bungalow” at Jeypore. It is claimed that Messrs P.R.Tata and Co. of Bombay had entered into an arrangement with the opposite party for the purpose of carrying on business in the district of Koraput and the said Company had taken the disputed house on monthly rent from the previous owner, the ex-Ruler of Jeypore, in 1948. It is further claimed that the arrangement between the Company and the present opposite party had ceased since 1980, but the accounts had not been settled. It is further stated that since there was dispute between the Company and the present opposite party, the opposite party is taking steps to get back possession of the disputed house which is under occupation of the present petitioner who claims to be an authorised agent of the Company, P.R. Tata & Co., It is stated that he is living in the disputed hours and looking after the affairs of the Company. It is claimed that one S. Rama Rao Patnaik was an employee of M/s. D.P.Tata & Sons, a sister concern of M/s. P.R.Tata & Co. The present opposite party filed T.S. No. 49 of 1983 against the aforesaid S.Rama Rao Patnaik for eviction. During pendency of the said suit, S.Rama Rao Patnaik having expired, his legal representatives were substituted. It is claimed that in the said suit written statement had been filed stating that the real tenant in respect of the disputed house was M/s. P.R. Tata & Co. and suit against the defendant, S. Rama Rao Patnaik was not maintainable. During the pendency of the said suit, the present petitioner filed an application to be impleaded as party on the ground that he had been appointed as the authorised agent of M/s. P.R. Tata & Co. While the present petitioner’s application was pending, the suit was dismissed for default. Subsequently, an application for restoration was filed. It is claimed that the hearing of the restoration petition was advanced behind the back of the present petitioner who had already filed an application for intervention and the suit was restored and on the basis of a collusive compromise between the original plaintiff (present opposite party) and the legal representatives of the original defendant, a compromise decree was passed. Though in the compromise petition, it was stated that possession had been delivered, actually opposite party could not take possession from the present petitioner who was occupying the house. Subsequently, Execution Case No. 17 of 1991 was filed for taking possession of the disputed house. Since the opposite party had obtained a collusive decree, the present petitioner filed an application in the execution case to intervene on behalf of the Company, but the said application was rejected on 26.9.1995 on the ground that the Company P.R. Tata & Co. was not a party to the suit. Thereafter, the present petitioner as authorised agent of P.R. Tata & Co. filed Title Suit No. 30 of 1996 for permanent injunction against the present opposite party stating that the plaintiff should not be evicted except in accordance with law. During the pendency of the aforesaid suit, an application under Order 39, Rules 1 and 2, C.P.C. was filed. After hearing both the parties, the trial Court rejected the said petition by order dated 29.10.1996. In appeal, the said order having been confirmed, the present revision has been filed.
3. The learned counsel appearing for the petitioner has submitted that the opposite party had issued notice Under Section 106, Transfer of Property Act, in December, 1995 to M/s. P.R.Tata & Co. which clearly indicates that the Company is still continuing as a tenant under the opposite party. It is further claimed that the earlier suit and the decree passed therein were not against M/s. P.R. Tata & Co. which was the tenant in respect of the disputed house, but against S. Rama Rao Patnaik in his individual capacity. It is further claimed that said S. Rama Rao Patnaik had no individual interest in the property, which fact has been clearly elucidated in the written statement. It is further submitted that the subsequent compromise decree on the basis of compromise between the present opposite party and the legal representatives of S.Rama Rao Patnaik was a collusive one and the Company is not bound by the said collusive decree and since the petitioner is the authorised agent of the Company and in occupation of the house, he is not bound by the decree.
4. The learned counsel appearing for the opposite party has filed various documents to show that the present petitioner had participated in the earlier suit in his alleged capacity as the authorised agent of the legal representatives of the defendant, and the present suit has been filed just to drag on the proceeding. It is further submitted that prior to filing of the present suit, T.S. No. 51/95 was filed by present petitioner purporting to be the authorised agent of M/s. P.R. Tata & Co. and the said suit having been dismissed as withdraw without any leave of the Court to file fresh suit on the same cause of action, the subsequent suit may not be maintainable. It is further submitted that the subsequent suit is not purported to have been filed on behalf of M/s. P.R. Tata & Co. and whatever may be the right of M/s. P.R. Tata & Co., the present petitioner who has filed the suit in his individual capacity, has no locus standi to maintain the suit nor has any individual right to protect.
5. The principles relating to grant of injunction are well settled in view of the decision reported in AIR 1993 Supreme Court, 276 (Dalpat Kumar and Anr. v. Prahlad Singh and Ors.). It is well settled that before grant of temporary injunction during pendency of a suit, the Court must be convinced that the plaintiff has got a prima facie case, that the plaintiff will suffer irreparable loss unless protection is granted and the balance of convenience is in favour of the plaintiff. So far as prima facie case is concerned, it is not necessary for the plaintiff to prove his case at the stage of consideration of temporary injunction and if a substantial question is raised, it can be said that a prima facie case is established. But even where prima facie case is established, unless it is proved that irreparable loss would be caused unless injunction is granted and further the balance of convenience is in favour of the plaintiff, no injunction should be granted.
6. In the present case, the learned counsels for both parties have advanced lengthy and learned arguments in support of their respective contentions relating to merits of the case. However, since discussion relating to such aspect is likely to prejudice either party, I desist from considering the submissions in depth and for the purpose of this revision, I assume that a prima facie case has been established. Even then, as already noticed, unless plaintiff proves that he will suffer irreparable loss, and that balance of convenience is in his favour, he is not entitled to get any injunction. In the present case, the opposite party is purporting to execute a decree. Though the decree is based on compromise, yet for the purpose of this Civil Revision at this stage it cannot be assumed that the decree was a collusive decree, as the question as to whether it was a collusive decree or not can only be decided at the stage of trial after evidence has been led. Since the opposite party is seeking to execute a decree, prima facie, execution of such decree cannot be considered to be causing irreparable loss to the other side. Similarly, it cannot be said that the balance of convenience is in favour of the plaintiff. The plaintiff claims that he not being a party to the decree is not bound by it. Such contention can be raised by the plaintiff during execution proceeding in accordance with law. Both the Courts below have adverted to the question of irreparable loss and balance of convenience and have found against the protest petitioner. In exercise of jurisdiction in a civil revision, a revisional Court is not entitled to take a different view of the matter even though the findings of the Courts below may appear to be erroneous. It cannot be said that the Courts below while refusing injunction have failed to exercise jurisdiction vested in them, nor it can be said that they have exercised jurisdiction with material irregularity. Even if the present petitioner is dispossessed in execution of the decree, he is not remediless and if he succeeds in the suit, he has got right to get restitution of the property from the present opposite party or any one claiming through her. However, the process of restitution may be a long-drawn affair. To obviate such difficulty, it is made clear that before proceeding with the execution, the opposite party shall file an affidavit before the executing Court undertaking not to file stay application in respect of any restitution proceeding in case the present petitioner succeeds at any stage, that is to say, in the trial Court, or the appellate Court, as the case may be, so that the process of restitution shall not be impeded. It is further made clear that the opposite party shall not alienate the disputed property without taking specific permission from the appropriate Court, that is to say, the Court where the Us would be pending at the time of such proposed alienation.
7. Subject to the observations and directions made above, the Civil Revision is disposed of. There will be no order as to costs. The trial itself should be expedited and all endeavours should be made to dispose of the suit by end of February, 1999. The L.C.R. be sent back immediately.