Vijay Kumar vs The State Of Bihar And Ors
2023 Latest Caselaw 3542 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
            CIVIL MISCELLANEOUS JURISDICTION No.313 of 2018
     ======================================================

Vijay Kumar, Son of Sri Ram Kishun Prasad Resident of Mohalla-Lodhipur, Jitu Sahu Lane, PS-Gandhi Maidan, District and Town-Patna.

... ... Petitioner Versus

1. The State of Bihar through the Secretary, Co-operative Department;

Secretariat, Patna.

2. The Bihar State Co-Operative Marketing Union Ltd. Biscomaun, through its Managing Director, Biscomaun Bhavan, Gandhi Maidan, Patna-800001.

3. The Secretary, Biscomaun Bhawan, Gandhi Maidan, Patna-800001.

4. The Chief Engineer Works, Biscomaun, Biscomaun Bhawan, Gandhi Maidan, Patna-800001.

5. The Executive Director, Construction, Biscomaun, Biscomaun Bhawan, Gandhi Maidan, Patna-800001.

6. The Estate Officer, Biscomaun, Biscomaun Bhawan, Gandhi Maidan, Patna-

800001.

7. The Assistant Estate Officer, Biscomaun, Biscomaun Bhawan, Gandhi Maidan, Patna-800001.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Uday Bhan Singh, Advocate For the Respondent/s : Mr. Amit Prakash G.A. 13, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 08-08-2023

Heard learned counsel for the parties.

2. This Civil Miscellaneous Application has been

filed under Article 227 of the Constitution of India for setting

aside the order dated 03.08.2017, whereby Misc. Appeal No. 45

of 2016 filed on behalf of petitioner has been dismissed by

learned Additional Sessions Judge 10th, Patna. The said

Miscellaneous Appeal was filed against the order dated Patna High Court C.Misc. No.313 of 2018 dt.08-08-2023

18.05.2016 passed by the learned Sub-Judge-III, Patna in Title

Suit No. 5569 of 2014 whereby the petition under Order 39 Rule

1 and 2 read with Section 151 of the Code of Civil Procedure,

1908 filed on behalf of plaintiff / petitioner has been rejected.

3. The brief facts of this case are that the plaintiff /

petitioner has filed Title Suit No. 5569 of 2014 claiming that he

is running a tea stall in the name and style of Vijay Tea Stall

within the premises of Biscomaun Bhavan Annexi Building

Gandhi Maidan Patna, since 1976. Later on, he was allowed to

construct a gumti and to get electric connection in the year

1997. However, in the year 2003 shop of the petitioner was

demolished by Patna Regional Development Authority (PRDA)

as it was in the area of parking and sub-way. After that petitioner

moved before this Court vide CWJC No. 13123 of 2003. This

Court vide order dated 23.11.2007 gave a direction to the

Biscomaun authorities to dispose of the representation of the

plaintiff. Pursuant thereto Biscomaun authorities vide letter No.

ESTATE /B/ 2121 dated 11.09.2008 allotted the plaintiff space

measuring area 150 sq. ft. at ground floor in the premises for 11

months with terms and conditions stated therein. The agreement

with respect to grant of licence was not executed between the

parties but the petitioner is in possession of the said premises. Patna High Court C.Misc. No.313 of 2018 dt.08-08-2023

On 12.06.2014 the Biscomaun authorities gave notice to the

plaintiff / petitioner to vacate the suit premises and stated

therein that the suit premises is in a dilapidated condition which

requires renovation and it may collapse anytime. Biscomaun

authorities decided to renovate and strengthen the building and

awarded the contract to a builder for this purpose. All the 12

shop occupiers had been served with common notice to vacate

the premises. The other shop keepers have vacated their

respective shops. The petitioner objected the same and requested

to grant some other space in the Biscomaun premises. The

petitioner has neither vacated the shop nor accepted the proposal

of shifting his shop in Kiosk and he preferred to file the suit

being Title Suit No. 5569 of 2014 and an application under

Order 39 Rule 1 and 2 read with Section 151 C.P.C. has been

filed therein for temporary injunction which was dismissed by

the trial court and the Miscellaneous Appeal has also been

dismissed vide the impugned order.

4. Learned counsel for the petitioner submits that

the annexie building is not in dilapidated condition but the

Biscomaun Authorities is trying to lease out the shops to some

other party by the advertisement and wants to get the shop

vacated without proper legal recourse. The petitioner is a Patna High Court C.Misc. No.313 of 2018 dt.08-08-2023

bonafide renter of the shop in question and the rent is fixed @

Rs. 20 per sq. ft. He further submits that the Biscomaun

Authorities has not offered the suitable shop in place of disputed

shop so that he may be able to run the tea shop for his

livelihood. Further, he submits that petitioner has prima facie

case in his favour and balance of convenience is also in his

favour and irreparable injury would cause for not granting to

petitioner temporary injunction. He has next submitted that the

learned trial court as well as Appellate Court below failed to

appreciate that all the three necessary conditions for grant of

temporary injunction are in favour of petitioner but ignoring the

same the trial court dismissed the application under Order 39

Rule 1 and 2 and 151 of C.P.C. filed on behalf of plaintiff /

petitioner and the Appellate Court below also confirmed the

same by dismissing the appeal which requires interference by

this Court in facts and circumstances of the case.

5. Per contra, learned counsel for the defendants /

respondents submits that the said annexie building consisting 12

shops including the petitioner's shop was in dilapidated

condition which requires an immediate renovation, all the

occupiers of the shops were asked to vacate their respective

shop by the common notice contained in Memo No. 192 dated Patna High Court C.Misc. No.313 of 2018 dt.08-08-2023

12.06.2014 and all the 11 shopkeepers including the petitioner

were given option to run their respective shop in kiosk within

Biscomaun Bhavan premises. It has further submitted that

owing to financial crunch, the Biscomaun was / is not in a

position to renovate the building by its own, hence it is invited

new lease who was competent to renovate the building. The

other shop keepers have vacated their respective shops. The

petitioner is not selling tea or any item but is in his possession

using it as his residence having bed to sleep. He has further

submitted that more injury and prejudice is likely to be caused

to the BISCOMAUN, if relief is granted to the petitioner. The

BISCOMAUN is not able to renovate the building by new lessor

and only intention of the petitioner is not to run the tea stall but

to cause heave loss to BISCOMAUN. The petitioner has no

prima facie case in his favour and balance of convenience is in

favour of BISCOMAUN on comparative hardship or

inconvenience. The petitioner is using the shop as residence and

is not opting to run tea shop from other suitable available place

shows that there is no irreparable loss to the petitioner on not

granting the temporary injuction. Further, he has submitted that

the trial court has by the reasoned order rightly dismissed the

application for temporary injunction and the appellate Court Patna High Court C.Misc. No.313 of 2018 dt.08-08-2023

below also vide the reasoned order has dismissed the appeal and

confirmed the order of trial Court. There is no jurisdictional

error or illegality for interference by this Court in its supervisory

jurisdiction.

6. The law is well settled that while passing an

interim order of injunction under order 39 Rules 1 and 2 CPC,

the Court is required to consider: (i) whether there is a prima

facie case in favour of the plaintiff; (ii) whether the balance of

convenience is in favour of passing the order of injunction; and

(iii) whether the plaintiff will suffer irreparable injury if an order

of injunction would not be passed as prayed for.

7. This Court in Dular Chand Sah & Ors. vs.

Devnath Sah & Ors. reported in MANU/BH/0794/2015

observed as follows:-

"The person who is seeking injunction has to

satisfy the Court three ingredients, namely, prima facie case,

balance of convenience and irreparable loss. If any of the

ingredients is missing the Court would refuse to grant

injunction. Satisfaction of prima facie case by itself is not

sufficient to grant injunction. The Court has to satisfy itself that

non-interference by the Court would result in irreparable injury

to the party seeking relief and there is no other remedy available Patna High Court C.Misc. No.313 of 2018 dt.08-08-2023

to the party except one to grant injunction and he needs

protection from the consequences of apprehended injury or

dispossession. Irreparable injury, however, does not mean that

there must be no physical possibility of repairing the injury but

means only that the injury must be a material one, namely, one

that cannot be adequately compensated in terms of money. Even

where prima facie case is made out in favour of the plaintiff, the

Court will refuse temporary injunction if the injury suffered by

the plaintiff on account of refusal of temporary injunction was

not irreparable...".

8. Grant of injunction is a discretionary relief. The

law is well settled that once the Court of first instance exercises

its jurisdiction to grant or refuse relief of temporary injunction

and the said exercise of discretion is based upon objective

consideration of the material placed before the Court and is

supported by cogent reasons, the Appellate Court will not

interfere with the Trial Court's exercise of jurisdiction.

9. In the present case, learned trial Court

considering the material on record and submission on behalf of

the parties did not find any prima facie case in favour of the

petitioner and no irrpearable loss to him by reasons stated in the

order dated 18.05.2016 including that petitioner is a mere Patna High Court C.Misc. No.313 of 2018 dt.08-08-2023

temporary allottee of the suit premises and it was in the

discretion of Biscomaun authorities for renewal / extension /

cancellation of the licence. The Biscomaun authorities to carry

out repair / renovation work got vacated 1st and 2nd floor of the

building from its employees who used to reside with their

families and other renters have also vacated the suit premises. It

is the responsibility of Biscomaun authorities to ensure safety of

all occupants and their lives cannot be allowed to be put at risk.

The respondent authorities appear to be making efforts to

accommodate the petitioner but the petitioner failed to accept

the same. Balance of convenience is also not in favour of the

petitioner. The Appellate Court below also in the impugned

order observed that it is the responsibility of the Biscomaun

authority of the safety of the occupants and noted the fact that

other shopkeepers have already vacated the shop / premises

allotted to them. He found no illegality or irregularity in the

impugned order. This Court is of the view that necessary

ingredients for grant of temporary injunction have not been

found by the Court below in favour of the petitioner.

Accordingly, the learned Court below rightly not granted the

temporary injunction in exercise of its jurisdiction.

10. In view of the above, this Court finds no Patna High Court C.Misc. No.313 of 2018 dt.08-08-2023

jurisdictional error or illegality in the impugned order and there

is no valid reason for interference of this Court in its

supervisory jurisdiction under Article 227 of the Constitution of

India. The application is devoid of merit and liable to be

dismissed.

11. This Civil Miscellaneous Application, is

accordingly, dismissed.

(Sunil Dutta Mishra, J)

shweta/-

AFR/NAFR             NAFR
CAV DATE             01.08.2023.
Uploading Date       08.08.2023.
Transmission Date