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Civil Revision Application No. 23 of 1975, decided on 23rd May 1975.

O. XXXIX, rr. 1 & 2‑Temporary injunction‑Principles for grant or refusal of‑Easement of light and air‑Suit for grant of injunc tion‑No diminution in plaintiff's right to air and light so as to constitute nuisance‑Temporary injunction, held, rightly refused -Question involved, in application for temporary injunction, inextric ably linked with suit itself‑No grievance could legitimately be made about observations of Court as regards matter involved in suit -Mandatory injunction‑Court has power to grant at interlocutory stage‑Such injunction, however, granted in rare and exceptional cases‑Easements Act (V of 1882), Ss. 7 & 35.

The well‑settled principles for grant or refusal of temporary injunc tions are; firstly, whether the plaintiff has made out a prima facie good legal case, secondly, whether the balance of convenience lies in favour of the grant of injunction, and thirdly, whether the plaintiff will suffer irreparable loss if the injunction is refused. The trial Court while considering the application for grant of temporary injunction formed the view that the applicants had failed to make out a prima facie good case as there was clear open to sky space of 14 to 17 ft. between the houses of the plaintiff and defendant and that on his visiting the room in question at 9‑45 in the morning he found that the room had light and air and as such the construc tion on the first floor did. not obstruct passage of light and air to the room in question.

In forming the above view the trial Court proceeded also on. consideration that injunction to restrain the obstruction could be granted only when there was such diminution of light and air that it constituted nuisance and there was substantial privation of the right of another having regard to the ordinary notions of mankind and reasonable usages which that portion of the house may be capable of and light coming in sufficient amount from other sources had also to be taken into account. One more factor that was taken into consideration by him was that the applicants' own building was a three‑storeyed one surrounded by other three‑storey buildings so that the respondent being the owner could not be restrained from raising similar construction unless it infringed the legal rights of others, which it did not in the instant case.

It would be seen that while deciding whether the applicants had made out a prima facie case, the trial Court acted properly by himself inspecting the site and having found as a fact that the room in question was getting light and fresh air, he proceeded to consider the case on correct appreciation of the legal test applicable to such cases which was, whether the obstruction complained of amounted to a nuisance.

Thus, having correctly appreciated and applied the legal test to the factual situation at site and having regard to illustrations (a) & (d) to section T of the Easements Act referred to above, the trial Court cannot be said to have acted arbitrarily in holding that the applicants had failed to make out a prima facie case for grant of temporary injunction.

The trial Court was invited to make site inspection and having done that he could not have avoided making certain observations while considering the question whether the applicants had made out a prima facie good case for temporary injunction. If the question involved in the application for injunction under Order XXXIX, rr. 1 and 2, C. P. C. was .inextricably linked with the suit itself so that certain observations could .root be avoided, no grievance of it could be legitimately made.

Even if it were to be assumed that the trial Court over‑stepped in expressing itself beyond it was required to do, it cannot be a valid ground for setting aside its order and granting injunction unless, it is found that the temporary injunction was refused in violation of the well settled principles governing temporary injunctions, which, however, is not the case there.

There can be no cavil with the proposition that the Court has the power to grant mandatory injunction at the interlocutory stage, but, it is equally well‑settled that it is granted in very rare cases when the Court is satisfied ‑that the matter is an emergent one and immediate assistance is needed to prevent irreparable injury being done to the legal rights of the claimant. ',The leading principle which ought, generally speaking, to be the guide of ‑Court is that before issuing such injunction the Court must consider and .satisfy himself whether the effect of injunction would be to preserve or alter ‑the status quo during the pendency of the litigation and whether irrepar able injury would be caused to the plaintiff if the injunction is not issued. ,If the effect of the injunction would be to alter the status quo during the pendency of the trial and no irreparable injury is likely to be caused to .the plaintiff it is not a fit case issuing the injunction which is a :remedy which should be sparingly resorted to since it would often result in giving to the plaintiff the remedy he seeks in the suit, even before the .contentions of the contending parties are properly tried.

P. C. E. Paul and another v. W. Robson and others A I R 1914 ‑ P C 45 Coll's case (1904) A C 179 ; Jolly v. Kine (1907) A C 1 ; Firm of Haroon Brothers v. Cowasji Bezonji Agha A 1 R 1926 Sind 201 and A I R 1955 Cal. 428 ref.

S. 115 & O. XXXIX, rr. 1 & 2‑Temporary injunction, grant or refusal of‑Discretionary‑Order cannot be interfered with in revision unless discretion found to have been exercised fancifully or arbitrarily.

Muhammad Umas Beg v. Sultan Mahmood and another P L D 1970 S C .;139 ref.

M. I. Nomani for Appellants:

Ismail Munshi for Respondent.

Dates of hearing : 24th and 25th February 1975.

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