ORDER
J.N. Bhatt, J.
1. The opponent is the original plaintiff who instituted regular Civil Suit No. 125/86 for declaration against the petitioner original defendant Company. The plaintiff sought declaration that the defendant company has no right, title or interest to erect electric sub-station and instal transformer at Swayamprakash Park over the land bearing survey No. 1119/1, 1129 and 1130. According to the case of the plaintiff, there was no contract between the defendant and the plaintiff about the erection of electric substation and that the erection of the said substation exactly below the plaintiff’s flat would obstruct the passage and parking of vehicles and will be hazardous.
2. The suit was resisted by the defendant company by, inter alia, contending that M/s. Keshav and Company were the organisers of the Swayamprakash Park society and they have provided the space for electric substation with a view to enable the company to supply power to the flat holders and others in the neighbourhood. There was an agreement executed between the parties in this behalf as per the contention of the defendant company. The company has also contended that the said M/s. Keshav and Company had instituted Civil Suit No. 1429/85 on behalf of the flat holders seeking direction from the Court to the defendant company to give electric connection contending that they had parted with land of 12′ x 10′ for the purpose of construction of the power sub-station. The plea of estoppel was also raised by the plaintiff in that suit against the defendant company. The plaintiff in that case had also obtained interim mandatory order against the defendant company for supply of electricity. It was also pleaded that there was no likelihood of any damage being caused as proper care and caution was taken.
3. The plaintiff submitted an application Ex. 5 for interim injunction restraining the defendant company from installing electric sub-station or transformer at the disputed land which came to be rejected by the Civil Judge (SD) at Surat on 27th Nov., 1986.
4. Aggrieved by the said order passed below Ex. 5, the plaintiff preferred Civil Misc. Appeal No. 178/86 challenging its legality and validity before the District Court, Surat. After hearing the parties, the learned Assistant Judge, Surat by his judgment and order dt. 16th Apr., 1987 was pleased to set aside the order passed by the trial Court below Ex. 5 and consequently granted injunction in favour of the plaintiff and against the defendant company. Hence this revision under Section 115 of the Civil P. C. 1908 (Code).
5. After having examined the facts and circumstances and considering the impugned order recorded by the learned Assistant Judge, at Surat, this Court is of the opinion that the appellate Court has committed serious illegality in reversing the order of the trial Court and substituting its own finding at the interlocutory stage. The discretionary power exercised by the trial Court while refusing to grant interim injunction in favour of the original plaintiff and against the defendant company in view of the agreement between the organisers of the building and the defendant-company cannot be in any way said to be wrong. The interim injunction was rightly refused by the trial Court and wrongly set aside by the appellate Court. It appears from the facts and circumstances and the impugned judgment and order of the Appellate Court that the Appellate Court has failed to appreciate the celebrated three following principles governing the grant or refusal of interim injunction under the provisions of Order 39, Rules 1 and 2 of the Code.
1. Prima facie case;
2. Irreparable injury; and
3. Balance of convenience.
6. The trial Court has considered all the aforesaid three celebrated principles. In the light of the facts and the circumstances, interim injunction application Ex. 5 came to be rejected by it. The order passed by the trial Court refusing to grant interim injunction in favour of the plaintiff and against the defendant company was justified in the facts and circumstances and there was no justification for the appellate Court to reverse it. The trial
Court has considered all the facts and circumstances elaborately and since this Court broadly agrees with the views and ultimate conclusion recorded by the trial Court while rejecting the application for interim injunction at Ex. 5, it would not be necessary to reiterate the same. Suffice it to say that the views and the ultimate conclusion recorded by the appellate Court while setting aside the order of the trial Court passed below Ex. 5 in the suit is neither justified nor reasonable. In fact, the plaintiff has no prima facie case. If it is presumed that the plaintiff has prima facie case, it cannot be said even for a moment that irreparable injury will be caused to the plaintiff by installing the electricity sub-station. By installing the sub-station, the defendant company had to fulfil the agreement between the organisers and builders of Swayamprakash Park Society, viz. M/s. Keshav and Company. Thus, there was an agreement between the organisers of the said Society and the defendant Company. In Civil Suit No. 1429/ 85 filed by the flat holders against the defendant company, mandatory interim order was granted and pursuant to that the defendant company was justified in installing the electric sub-station. Supply of electricity to all the flat holders is absolutely necessary being one of the basic requirements of proper enjoyment of properties. Unfortunately, these aspects are not seriously considered by the Appellate Court while reversing the order of the trial Court below Ex. 5 and substituting its own view. In the circumstances, the impugned order passed by the appellate Court granting interim injunction below Ex. 5 is required to be quashed.
7. It may, however, be mentioned that the learned advocate Mr. Shelat while appearing for the petitioner original defendant Electricity Company has fairly stated that the Surat Electricity Company Limited will provide a proper additional ceiling to shield the heat from the transformer and install an exhaust fan beneath the additional ceiling.
8. In view of the aforesaid facts and circumstances, and the statement of the learned advocate Mr. Shelat appearing for the petitioner, this Court has no hesitation in allowing this revision. Accordingly, this revision is allowed and the impugned order
passed by the appellate Court granting interim injunction below Ex. 5 is set aside. Rule made absolute with no order as to costs.