JUDGMENT
A. Pasayat, J.
1. Petitioner’s, prayer for temporary injunction to restrain the opposite parties from entering upon the suit land, causing waste and damage to the same, or altering the existing structure and from interfering with the peaceful possession over the suit land and building standing thereon having been rejected by learned Civil Judge (Junior Division), Puri and learned Civil Judge (Senior Division), Puri in appeal, this Court has been moved.
2. Background facts necessary for disposal of the present application essentially run as follows :
Petitioner as plaintiff filed Title Suit No. 300 of 1992 in the Court of learned Civil Judge (Junior Division), Puri for permanent injunction and restraining defendants (opposite parties herein) from going over the surface land, dispossessing him therefrom, causing waste and damage and causing any son of addition, alteration to the building standing over the suit land In essence his case is that one Kalu Panda was sole owner of the suit land in which a three storied building exists, and the said building is used as lodging-house for accommodation of pilgrims. A sale-deed in favour of the plaintiff was executed on 6 12.1991, and was registered on 7.12.1991. Kalu Panda breathed his last on 2.1.1992 and thereafter the plaintiff became absolute owner of the suit property and is appropriating the income. Defendant No. 1, widow of Kalu Panda executed a Will in favour of the plaintiff. Defendant No.2 threatened to dispossess plaintiff from the suit land and to forcibly occupy the building. Plaintiff made enquiries and came to know that defendant No. 2 has managed to obtain a deed of power-of-attorney from defendant No. l, and in connivance with some local anti-social elements intended to forcibly enter upon the property and gave threats to that effect. Defendant No.2 has no right, title and interest over, the possession of suit land and therefore, he lacked interest in respect of the suit property. Plaintiff alone is the owner of the suit property and the threat given to him would result in irreparable loss and injury. He has filed Misc. Case No. 24 of 1992 in the Court of learned District Judge, Puri to probate the Will executed, and the same is pending. Defendants filed written statement inter alia stating that the suit for injunction without prayer for declaration of title is not maintainable, and the plaintiff has no right, title or possession over the suit property. Kalu Panda was not the sole owner of the property, and the alleged Will is fraudulent, and it was not executed by Kalu Panda, the income of suit property is the only means of livelihood of defendant No. 1. Mi. Case No. 228 of 1992 was filed by petitioner before the trial Court to restrain the opposite parties by way of an order of injunction, but the same was rejected holding that these was no prima facie case. Against the order of rejection. Misc. Appeal No. 1 8/136 of 1993/92 was filed. Same was dismissed by the learned Additional Subordinate Judge (Senior Division), Puri.
3. Mr. P. Kar, learned counsel appearing for the petitioner submitted that the approach of the Courts below is erroneous as they have lost sight of the fact that an unprobated Will can be used for collateral purpose, and Section 213 of the Indian Succession Act, 1865.(in short, the ‘Act’) does not stand on the way of being used for finding title prima-facie, and to protect the property from getting wasted. Learned Counsel for the opposite parties on the other hand, contended that in view of the concurrent factual finding by two Courts that petitioner was not in possesion. and in view of the undisputed relationship between Kalu Panda and opposite party No. 1, who is no other than his wife, prayer for injunction has been rightly refused.
4. An injunction is a judicial process whereby a party is ordered to refrain from doing or to do particular act or thing. In the former case it is cahed a restrictive injunction and in the latter a mandatory injunction. (See Halsbury’s Law of England : 2nd Ed. Vol. 21). Injunction may be either final remedy obtained by a suit, or a preliminary and interlocautory relief granted while the suit is pending. In the first case it is decree, in the second an order or writ. Whatever be its forms, decree or order, the remedy by ordinary injunction is wholly preventive, prohibitory or protective. The same is true in theory and in form of a mandatory injunction which always by its language prohibits the continuance of an act or a structure although in effect and in its essential nature it is wholly restorative and compels the defendants to restore the thing to its original situation. An injunction is merely a, process by which Court enforces equity. It is an order of an equitable nature. It is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing. The farmer is generally called a restrictive injunction and the latter is called ‘mandatory injunction’. An interlucutory or interim injunction is to preserve matters in situ until the case can be tried. There must be some equitable groom, for interference by injunction such as a necessity of preventing irreparable mischief or in cases when the injury apprehended is of a character as cannot be adequately compensated by damages or is one which must occasion constantly recurring grievance which necessitates a preventive remedy in order to put an end to repeated perpetration of wrong. This power has to be exercised sparingly or cautiously and only after thoughful deliberation and with a full conviction on the part of the Court of its urgency and necessity.
Courts issue injunction where the right which is sought to be protected is clear and unquestioned and not where the right is doubtful and there is no emergency and further where the injury threatened is positive and substantial and is irremediable otherwise. It is also an important rule that the conduct of the parties seeking injunction must not be (sic) with unfairness or sharp practice. The principal function of an injunction is to furnish preventive relief against irremediable mischief. An injury is deemed to be irreparable when having regard to the nature of the act and from the circumstances relating to the threatened harm, the apprehended damage cannot be adequately compenstated with money.
Grant or refusal of a temporary injunction is covered by three well established principles, viz. (1) Whether the applicant has made out a prima-facie case; (2) Whether balance of convenience is in favour of the applicant, i.e. whether it would cause greater inconvenience if the injunction is not granted than the inconvenience which the opposite party or persons claiming through the opposite party would be put to if the temporary injunction is granted; (3) Whether the petitioner would suffer irreparable loss or injury with the first condition as sine qua non.
5. Under Section 211 of the Act, an executor under the Will of deceased persons will be his legal representative for all purpose and the property of the deceased would vest in him as such executor. The latter derives his title from the Will and he is, therefore, the legal representative of the deceased persons representing him from the date of his death. Section 212 mandates that it is only the person that has obtained letters of administration can represent the estate of the deceased. No. right to any part of the property of a person who has died intestate can be established in any Court of justice, unless letters of administration have first been granted by a Court of competent jurisdiction. Section 213 clearly creates a bar to the establishment of any right under Will by an executor or a legatte unless probate or letters of administration of the Will have been obtained. Section 213 does not warrant a conclusion that an unprobated Will cannot be acted upon for purposes other than for enforcement of the rights thereunder and it does not stand in the way of using an unprobated Will for collateral purposes. A probate proceeding is not a suit in which there is a property in dispute as contemplated by Order 39, Rule 1. CPC. The only question in controversy being as to who is to represent the estate of a deceased person and there being no question of title involved in those proceedings, the Court of probate is not thereby wholly incompetent to grant a temporary injunction even in extreme cases and such order of injunction is to be issued only in aid and furtherance of the purpose for which a grant is made by a probate Court. It is, therefore, open to the Probate Court not only to appoint an administrator pendente lite, but also to issue an order of injunction temporary in character, pending the appointment of an administrator pendente lite. If such powers are exercised in probate cases by a Probate Court, there is no reasonable chance of any property being dissipated, pending actual grant of a probate or the appointment of an administrator.
6. In the aforesaid legal backdrop, it is to be seen whether a factual case of interference has been made out. It has to be borne in mind that while exercising the jurisdiction under Section 115, CPC it is not competent to the High Court to’ correct errors of fact however gross or even errors of law unless the said errors have relations to the jurisdiction of the Court to try dispute itself. Where the order is indefensible on the ground of perversity, the Court can interfere. In order to maintain a revision,’ there must be an error relating to jurisdiction committed by the lower Court either by way of assumption of jurisdiction which if does not have; or failure to exercise jurisdiction which it has, or by exercising its jurisdiction illegally or with material irregularity. The Court shall deal with the same in accordance with law. The High Court can look into the evidence only with a View to determine aforesaid aspects. The High Court, cannot in the exercise of its revisional powers under Section 115; CPC attack findings of facts; unless they are fundamentally erroneous or person; or substitute its own appreciation of evidence for that of the primary Court (See M/s. Bhojraj Kunwarji Oil Mill and Ginning Factory and Anr. v. Yograjsingha Shankersinha Parihar and Ors. : AIR 1984 SC 1894, at p. 1895; Manick Chandra Nandy v. Debdas Nandy and Ors. : AIR 1986 SC 446 at p. 448 ; Smt. Rajbir Kaur and Anr. v. M/s. Ghokosiri and Co.; AIR 1989 SC 1845 at pages 1854 and 1856). In the case at hand, opposite party No. l is undisputedly the widow of Kalu. Courts below have recorded positive finding of fact that petitioner failed to establish his exclusive possession. Therefore, the prayer for temporary injunction has been rightly refused, and I find no scope for interference. It was submitted by the learned counsel for petitioner that a motion shall be made before the trial Court for direction to maintain accounts of the lodging house. In case it is done, the Court shall deal with the same in accordance with law.
The application is dismissed with the aforesaid observation. No costs. Application dismissed with observation.