JUDGMENT
K.C. Agrawal, J.
1. This is a defendants’ appeal filed against the judgment of the III Additional Civil Judge, Agra, dt. Sept., 16, 1988, restraining the defendant Uttar Pradesh Avas Evam Vikas Parishad, Lucknow (hereinafter referred to as ‘the Parishad’) from realising unpaid instalments claimed from the plaintiff-respondents towards the hire purchase agreements under which the ownership of the flats constructed by the Parishad had been agreed to be transferred.
2. The plaintiff-respondents filed Civil Suit No. 464 of 1988 Dr. N. Rajgopalan v. Uttar Pradesh Ayas Evam Vikas Parishad for the following reliefs :
(A) That it be declared that the defendants are not entitled to charge any amount of price or value/instalment/hire or interest or any other amount of each flat exceeding Rs. 55,000/- and they are liable to refund the amount received in excee thereto.
(B) Consequently the defendants be restrained by a permanent injunction from recovering, demanding or charging any amount towards the price/value/instalments or in any other manner whatsoever and through whomsoever.
(C) Costs of the suit be awarded to the plaintiffs against the defendants.
(D) Any other and further relief which may be deemed fit in the circumstances of the case, may also be awarded to the plaintiffs against the defendants.
3. They alleged that the State Government exercising, power under Section 3 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 established the Parishad to execute housing and improvement schemes, other projects and to co-ordinate various housing activities in the State and to ensure expeditious and efficient implementation of housing scheme in the State. The Parishad was not a profit earning body, but had been created to provide houses to the persons, who do not own or possess residences for themselves. In the course of implementation of its object the Parishad invited applications for registration of plots and for higher income group (HIG) flats thereon under the scheme styled as ‘Neeharika’ which were to be constructed in Kamla Nagar, Agra. In pursuance of the advertisement the plaintiff-respondents applied for registration with the Parishad by depositing an amount of Rs. 5,000/- each as registration fee. In 1982 the Parishad again issued an advertisement that the persons, who were already registered with it and were desirous of obtaining HIG flats could again apply for allotment in triple storeyed complex in Kamla Nagar by making a further deposit of Rs. 7,000/- besides Rs. 5,000/- already deposited under the ‘Neeharika Scheme’.
4. Ultimately the Parishad fixed the price loor at Rs. 95,000/- and Rs. 1,00,000/- for the second floor. It was given out that in case cash amount was made of the said prices the
fiats will be preferentially allotted to them. The plaintiff-respondents were given possession of the flats constructed in between the years 1982-84 on payment of some of the instalments.
5. It was alleged by the plaintiff-respondents that the flats given to them were not properly constructed and there were several defects in the same, as a result whereof the defeels were first brought to the notices of the authorities. But as no heed was paid by them, the plaintiff-respondents filed Writ Petition No. 9819 of 1987 in this Court challenging the demand of the balance of instalments by the plaintiff-respondent 1. The writ petition was dismissed and thereafter the present Suit No. 464 of 1988 for the aforesaid reliefs was filed.
6. One of the main contentions raised in the suit was that the defendants Parishad was not entitled to charge the price of the flats in excess of Rs. 55,000/- as the total costs brone by if in constructing the flats was the same. It was contended that the Parishad is not a profiteering body and, as such, the plaintiffs were entitled to the reliefs abovementioned. Along with the suit the plaintiffs moved an application for temporary injunction directing the Parishad not to realise the unpaid instalment from them.
7. The injunction application was contested by the Parishad on a number of grounds. The respondents challenged the assertion of the appellants that the total costs of each flat constructed by the Parishad was Rs. 55,000/- and that the defendant Parishad was not entitled to realise more than the same. It was stated in paragraph 26 of the counter-affidavit that the overseer’s report, which had been relied upon by the plaintiffs in support of their case that the price of each flat was Rs. 55,000/- was absolutely wrong and had been procured by the plaintiffs for the purpose of the suit. The defendant Parishad further denied that all facilities and amenities as per its housing scheme for HIG houses had not been provided. In paragraph 7 of the counter-affidavit it was asserted that no assurance had been given to the plaintiffs that HIG Neeharika Type houses were to be allotted to them. In this connection it was stated :
“It is further submitted that in pursuance of the aforesaid scheme of constructing HIG houses at Agra, only Multi-Storeyed HIG houses were constructed by the defendants in its Kamla Nagar Housing Scheme at Agra.”
8. The defendants asserted that the plaintiffs took possession of their respective flats after fully satisfyng themselves, about the construction thereof. The defendants alleged that the plaintiffs were liable to pay the balance price and that the plaintiffs were not entitled to any injunction. It was claimed that the plaintiffs had taken possession of the flats and having done so, they could not be permitted, in law, to resile from the terms of the contract. The plaintiffs, in fact, the defendants alleged, had delayed the payment and it was with an ulterior motive of the same that the defendants first filed the writ petition and after having failed in the same, they preferred the suit. The only purpose of the plaintiffs was not to make the payment. The plaintiffs on false and wrong assertion, had been fighting the litigation.
9. As stated above, the trial Court granted the injunction in terms prayed for and allowed the application. Against the said order the present appeal has been filed.
10. We have heard counsel for the parties and are of opinion that the court below was absolutely wrong in allowing the application and directing the defendants not to realise the unpaid prices of instalments from them.
11. Prima facie case, balance of convenience and irreparable injury are the three requirements for obtaining injunction. In this case the court below has given glumsy finding on the question of prima facie case of the plaintiffs and without examining the same from the plaintiffs, which was required to be done. Each one of the plaintiffs had entered into an agreement and promised to pay the amount for which flats had been obtained on hire purchase in instalments. The plaintiffs are educated persons and that the court below
illegally and wrongly assumed that they were in a state that they had no alternative but to sign the agreement and to obtain possession of the allotted flats. The theory set up by the plaintiffs in this regard in the injunction application and in the arguments before us by the learned counsel appearing for them is not worthy of being accepted The matter relating to allotment of flat remained pending for over three to four years that the plaintiffs must have been in the know of the position of the constructions and that there is substance in their assertion that they took possession of the flats allotted to them without knowing their conditions.
12. One of the three requirements, as stated above, for obtaining injunction is that the plaintiffs must establish a prima facie case in their favour. The court must not only be satisfied that the claim is not frivolous or vexatious but there is a serious question to try. It was contended by the plaintiff’s counsel that it is not part of the court’s function at this stage of the litigation to try to resolve the conflicts of evidence on finding as to facts on which the claims of either party may ultimately depend not to decide and also not to decide difficult questions of law which call for detailed arguments and mature considerations. These are matters to be dealt with at the trial. Assuming that the respondents’ counsel was right in his submission, but the requirement of prima facie case needed the plaintiffs to establish from the findings that they had a debatable case in their favour and without the same no injunction could be granted In the instant case the court below did not apply its mind to this aspect of the matter. What it did was that it assumed on the basis of the overseer’s report that the total cost of each flat was Rs. 55,000/- and, therefore, the Parishad was not liable to realise more than the same. This has been denied in the counter-affidavit. It is very doubtful that a Civil Court in a matter like this could go into this question and record a finding of its ipse dixit that the construction being less than what had been constructed for the plaintiffs was not liable to pay the same. The maintainability of a suit on the ground mentioned above is much in doubt.
However, at this stage we do not wish to express any concluded opinion on the same. What we wish to emphasise is that each of the plaintiffs had undertaken to pay the price mentioned in the agreement executed by them. None of them was entitled to obtain an injunction at this stage restraining the parishad from realising the same.
13. The agreement has been filed before us and in the agreement there is an express provision of the termination in certain specified events. Such termination was automatic on the occurrence of the specified event. On termination owner is entitled to possession of the flat. The court below, as stated, was swayed away by irrelevant considerations in giving a finding in favour of the plaintiffs that they were entitled to the injunction being granted.
14. Another circumstance, which the Court below should have examined was whether balance of convenience lay in favour of the plaintiffs in granting the injunction or in favour of the defendants by its refusal. The Court below did not consider it even fit to go into this question and examine all its aspects. The extraordinary nature of the remedy by injunction calls for careful application of this guiding principle and it is safe to say that rarely will injunctive relief be granted when ft would operate inequitable or to control the real justice of the case. Although this doctrine is well recognised, but it is difficult in governing in all inclusive rule, which would encompass the factual situation in all cases, that is, each case, so far as the application of the doctrines of relative or comparative injury is concerned, rest upon the particular or peculiar circumstances of that case. In American Cyanamid Co. v. Ethicon Ltd., (1975) 1 All ER 504 House of Lords laid down the principles governing grant of interlocutory injunction. The court lay emphasis on the consideration of balance of convenience and found that if there was no balance of convenience in favour of the plaintiffs no injunction need be granted. Itwas observed :
“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 plaintiffs undertaking in damages if the u ncertainty were resolved in the defendant’s favour at the trial. The court must weight one need against another and determine where the balance of convenience lies.”
15. If a plaintiff of a suit can be compensated by payment of damages law does not require giving or granting of an injunction in such a case to the plaintiff. Damages would be adequate remedy. In this connection House of Lords laid down as follows :
“As to that, the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however, strong the plaintiff’s claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the Court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined he would be adequately compensated under the plaintiffs undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial……….”
16. Another serious mistake committed by the court below is that it did not address itself to the question of irreparable injury, which was a must in deciding an application for injunction. A court of equity gets jurisdiction or power to grant injunctive relief only when intervention is essential to effectually protect property or other rights against irreparable injuries. An injury will be regarded as irreparable where there exists no certain pecuniary standard for measuring damages or where it is beyond the possibility of repair. The plaintiffs could be compensated in this case by making an order of refund to the defendants.
17. A court of appeal against the judgment of granting or refusing to grant injunction can interfere when the order passed is arbitrary or is passed by not taking into account the relevant considerations. The present is a case establishing the same. The court below gave a go-by to all the principles of law and most arbitrarily and without applying its mind to the requirements granted the injunction restraining the defendants from realising the unpaid instalments. The judgment shows that the learned Judge thought that the interlocutory injunction could be given as a matter of course. Its granting rests in the sound discretion of the Court to be exercised in accordance with well settled equitable principles and in the light of all the facts and circumstances of the case. The discretion of the Court does not include a misapplication of the law or an obvious error in the application of the principles of equity. The character of injunction being extraordinary it should be exercised sparingly and cautiously. After thoughtful deliberation injunction should be given or awarded only in clear cases.
18. Another matter which needs to be emphasised at this place is that the Parishad has been created by the Act for achieving laudable objects and if such an injunction, as was granted in this case, was given, the result would be that a huge public fund would” remain unpaid resulting in schemes to collapse. In the instant case Sri N. L. Ganguli contended that the amount due from the plaintiff-respondents was over rupees one lac;
whereas, according to Sri S. N. V erma, it was only rupees fifteen lacs. Be that as it may, giving allowance to the calculations of both sides, it appears to us that the amount nonetheless, is very huge, and the granting of injunction to the plaintiffs was uncalled for and against at the canons of law. The fact that public interest would be prejudiced by an injunction compelling the respondent for denying relief. The extent of such public interest will furnish a court of equity sufficient ground for exercising its discretion lo refuse to grant the injunction. Sri S. N. Verma. counsel for the plaintiff-respondents urged that the convenience of the public should not be allowed to influence the court lo discard the plaintiffs’ clear legal right. This submission by itself loses either of the public interest altogether which, according to his submission, is relevant consideration while dealing with an application to grant an injunction, Under the principle of balance of convenience, the Court is required to consider the public convenience and if it omits to do so, the order is rendered illegal.
19. Sri S. N. Verma placed reliance on the Supreme Court decision in Central Inland Water Transport Corporation Ltd. v. Brojo Nath, AIR 1986 SC 1571 for the submission that the contract being opposed to public policy, the court below rightly granted injunction restraining the defendants from realising the unpaid balance of instalments. In this case on interpretation of the relevant service rules, the Supreme Court held that the rule empowering the corporation to terminate service of its permanent employees by giving notice or pay in lieu of notice period is opposed to public policy and violative of Article 14 and Directive Principles. This case does not advance the submission made by the counsel for the plaintiff-respondents. It has been said by the Supreme Court in paragraph 94 that :
“…..but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the court. They are, opposed to public policy and require to be adjudged void.”
If the submission of the plaintiffs, is accepted the agreement entered into by the plaintiff-respondents would be void and they would have to hand over possession of the flats allotted to them. To this the plaintiffs were neither prepared in the court below nor before us. Furthermore, the aforesaid principle will not be applied in this case.
20. Counsel for the plaintiff-respondents made a request that four months time be given to the plaintiff-respondents for making payment of the balance amount of instalments. Sri L.N. Ganguli was agreed to this. We consider that four months be granted to them for payment of instalments.
21. In the result the appeal succeeds and and is allowed. Judgment of the court below appealed against is set aside and the application for injunction is rejected.