JUDGMENT
N.C. Sil, J.
1. The present revision has been directed against the order dated 27th November, 2003 passed by Shri Brindaban Mondal, learned District Judge, Andaman & Nicobar Islands, in connection with Misc. Appeal No. 5 of 2002 confirming an order passed by the learned Trial Judge under Order, 39, Rules 1 & 2 of the Code of Civil Procedure dated 27.8.2002 in connection with Title Suit No. 33 of 2002. The learned Trial Judge was pleased to dispose of the said injunction petition directing the parties to maintain status quo in respect of nature, character and possession of the suit property till the disposal of the suit.
2. The facts in the plaint case in brief is that the suit property was owned by one Bishnath Tewari who made a gift of the said property by a registered deed in favour of his wife, the original defendant No. 3 on 1.8.1988. Bishnath Tewari died on 4.1.1986. The defendant No. 3 was the sister of V. N. Tewari who was the father of the original plaintiff Ajay Tewari. It is submitted before the by the learned advocate for the revisionists that after the execution of the said deed of gift there was mutation of the land covered by that deed and even payment of tax to the appropriate authority and thus, by way of inheritance from the donee, the present defendants became the absolute owners of the suit property. The present suit was instituted by the plaintiffs for partition. The ground taken by the respondents in this revision is the ignorance about the existence of deed of gift. Subsequently, an amendment petition was filed before the learned Trial Court for incorporating a prayer for declaration that the deed of gift was void and invalid. The said amendment petition is still pending.
3. Mr. Haradhan Banerjee appearing for the revisionists submits before me that by the status quo order the revisionists have been seriously prejudiced as they are the owners, they have been prevented from making constructions on the suit property for the order impugned. It is also pointed out by Mr. Banerjee that both the learned Courts below erred in their conclusions as regards the prima facie case of the revisionists. It is further submitted by him that in view of the registered deed of gift there is strong prima facie case in favour of the revisionists which has been totally misconceived by both the learned Courts below,
4. Mr. Haradhan Banerjee has cited the following decisions of the Hon’ble Apex Court and our Court:
(i) Dinesh Mathur v. O.P. Arora and Ors., 1997(4) Supreme 645; (ii) Dalpat Kumar v. Prahlad Singh, ; (iii) Wander Ltd. v. Antox India P. Ltd., 1990 (Supp.) SCC 727; (iv) Pratima Dutta v. Nilima Seal, 1997(2) CLJ 409.
5. In all the above cases the principles lying behind the consideration of a prayer for injunction have been enunciated. It was held in the case of Dalpat Kumar v. Prahlad Singh (supra), as under :
“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 in 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 serous 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 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.”
6. It was decided in the case of Dinesh Mathur v. O.P. Arora and Ors. (supra), that granting of injunction is a matter of discretion. Balance of convenience and irremediable injury are triable issues and are required to be examined and found positive.
7. The decision of the Hon’ble Apex Court in the case of Wander Ltd. v. Antox India P. Ltd. (supra), is as follows :
“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 interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case.”
8. It was decided in the case of Pratima Dutta v. Nilima Seal (supra) by the Division Bench of our High Court that as the appellant failed to prove prima facie case, the other two factors viz. because of convenience and inconvenience and the question of irreparable loss and injury become insignificant.
9. Mrs. Anjili Nag, learned advocate appearing for the respondent No. 1, submits while drawing my attention to the copy of the dead of gift itself, that the deed itself speaks of its inherent defect. The necessary permission was not obtained by the donor from the appropriate authority and the same has been clearly stated in the deed itself, she further submits. It is also submitted by her that all this suggests that the existence of the deed of gift was not within the knowledge of the respondents rather some oblique ways were taken to prevent the respondents from knowing the existence of the deed of gift and this is why after the disclosure of the deed of gift by the defendants in the original suit the plaintiffs filed the amendment petition before the learned. Trial Court which is pending for consideration. It is further submitted by her that if the deed of gift goes away the rights of the plaintiffs as co-sharers in respect of the suit property come into existence.
10. Mr. H. R. Bahadur, learned Counsel for the other respondent submits that this Court may give the direction upon the learned Trial Court for day to day trial of the suit including the disposal of the amendment petition and till that date the status quo order passed by the learned Trial Court and thereafter confirmed by the learned District Judge may remain in force.
11. In reply, Mr. Haradhan Banerjee has drawn my attention to the Regulation No. 159(9) of the Land Revenue and Land Reforms Regulation, 1966 for the Andaman & Nicobar Islands and tries to impress upon me that as the permission sought for by the donor for making the deed of gift was not accorded by the authority within the stipulated period as provided in regulation No. 1-59(9), it was deemed to have been accorded and as such the deed of gift was executed and registered. Mr. Banerjee has also drawn my attention to the provision of the Registration Act and tries to impress upon me that as the instrument i.e. the deed of gift was registered, the notice to the respondents is deemed to have been made.
12. I have duly considered the materials placed before me by the learned Counsels for the parties and their submissions also. The case laws referred to by Mr. Banerjee have also been taken into consideration. Since the deed of gift has been impugned in the instant suit by introducing the amendment petition of the plaint at the instance of the plaintiffs and the said amendment petition is still under consideration of the learned Trial Judge, I have no scope to pass any views on the same. But for consideration of an injunction petition and the order passed thereon, I think it is incumbent upon me to cast a look at the same sitting in the revisional jurisdiction. Axerox copy of the said deed of gift has been annexed in the revisional application (Annexure ‘E’) by the revisionists. In fact, the entire claim of the revisionists as defendants in the suit rests on the said deed of gift. Thus, I like to quote paragraph 6 of the said impugned deed of gift which reads as under :
“That the donor has applied to the Chief Commissioner, A & N Islands on 20/1/81 vide his application dated 20/1/81 vide Deputy Commissioner, Andamans RC No. 25/81 (DC) dated 24/1/81 praying for permission to gift his house but so far the donor has not received the gift permission, as such there is impediment for the execution and registration of the gift deed under regulation 159(9) of the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulation, 1966.”
Regulation 159(9) of the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 reads as under :
“The interest of a licensee of a non-agricultural land shall not be transferable except with the previous permission in writing of the Deputy Commissioner and subject to such terms and conditions as may be specified by him:
Provided that where within a period of four months after the receipt of any application from any licensee, for permission to transfer his interest in any non-agricultural land being a house site, the Chief Commissioner does not refuse permission or upon refusal, does not communicate the refusal to the licensee, then the Chief Commissioner shall be deemed to have granted permission for transfer.”
13. The said regulation has got as many as two “Explanations”. On perusal of that regulation it seems to me that for the purpose of arrival at a decision as to whether the execution of the deed of gift was made properly, it involves intricate question of law which is pending now before the learned Trial Court for determination in the amendment application.
14. The various case laws referred to by the learned Counsel for the revisionists speak of the principle to be followed in consideration of the injunction petition. Thus, it was decided in the case of Dalpat Kumar v. Prahlad Singh (supra) that where there is a serious disputed question to be tried in the suit the passing of status quo order in the injunction petition is the appropriate step in order to preserve the subject-matter of the suit. The case laws referred to before me also speak that the prima facie case of the parties is not always the only guiding factor for consideration of a prayer for injunction. That apart, in the instant case if ultimately the deed of gift does not stand to be proper in the consideration of the learned Trial Judge, the entire scenario will be changed in favour of the plaintiffs.
15. From the facts and circumstances, it is abundantly clear that if the status quo order is vacated at the moment and the defendants/revisionists went on for constructions on the suit property, it will invite multiple of litigations in future. Accordingly, in my humble view I do not find it worthwhile to interfere with orders of the learned Courts below. The revisional application is, thus liable to be dismissed.
16. The revisional application is dismissed.
17. The status quo order passed by the learned Trial Judge and confirmed by the learned District Judge is hereby affirmed. The learned Trial Judge is, however, directed to dispose of the suit along with the amendment application as expeditiously as possible, preferably, within a period of six months from the date of communication of this order.
18. There shall be no order as to costs in the facts and circumstances of the case.