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Civil Petition for Special Leave to Appeal No. 899 of 1974, decided on 8th November 1975.

(On appeal from the judgment and order of the Lahore High Court Lahore, dated 20‑8‑1974 in Civil Revision No. 635 of 1974).

-- O. XXXIX, r. 2‑Injunction, temporary‑‑True criterion of issue. [Injunctions].

Along with the plaint, the respondents moved an application under Order XXXIX, rules 1 and 2, C. P. C. for interlocutory injunction against raising of the wall pending a decision in the case. The petitioner resisted the appli cation for interlocutory injunction on the ground that hitherto a wall and existed during the last 40 years but has been washed away by floods daring, the preceding year and which he now intends to restore by now construction. The facts that there existed a khanqah' and some graves over the area, and that tar respondents here occupancy tenants were not controverted. The trial Judge refused to issue interlocutory injunction. On appeal by the respondents, the District Judge reversed the order of the trial Judge and issued interim injunction prayed for. This was upheld by the High Court.

Held : The true criterion is to consider on which side the balance of inconvenience‑and not of convenience‑would lie in case interlocutory injunction is refused but the plaintiffs' suit ultimately succeeded. It is important to point out that when the applicant for interlocu tory injunction is able to show prima facie the existence of right and its infringement injunction will issue only if the circumstances are such, teat the object really is to avoid the comparative inconvenience, 'or mischief which is likely to result from refusing it. In other words the in evidence will be greater than that which is likely to arise from it. Keeping this principle in view, in the instant case, the having ref inconvenience lay definitely in refusing injunction for if the respondents' prayer for interlocutory injunction was refused and they ultimately succeeded in the suit, the latter would have to amend the plain, of even file a separate suit to ask for the relief for mandatory injunction for demolition of the wall. This would have also entailed a wastage of expense by the petitioner in constructing the wall which ultimately will nave to be demolished. Conversely, no such result would ensue, if the petitioner is restrained from raising the wail during the pendency of the suit. Even if the respondents' suit ultimately fails, it only means delay in the construction of wall for which the petitioner can claim compensation under section 95, C. P. C.

Manzour Hussain Sial, Advocate Supreme Court instructed by Sh. Salah -ud‑Din, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 18th November 1975.

This petition is from the judgment of the Lahore High Court dated 20‑8‑1974 dismissing a revision under section 115, C. P. C. moved by the petitioner herein in the circumstances set out below:

'The respondents herein brought a representative suit for perpetual injunction to restrain the petitioner herein from raising a boundary wall it certain area measuring about 37 kanals 8 marlas in square No. 15, in village Thatti Ilichi, on the allegation that the respondents were occupancy tenants and in possession of that area, in portion of which there is a 'khanqah' and graveyard but that the petitioner herein threaten to encroach over it by raising the boundary wall. Along with the plaint, the respondents moved an application under Order XXXIX, wiles 1 and 2, C. P. C. for interlocu tory injunction against raising of the wall pending a decision in the case.

The petitioner resisted the application for interlocutory injunction on the ground that hitherto a wall had existed during the last 40 years but had been washed away by floods during the preceding year and which he now intends to restore by new construction. The facts that there existed a Khanqah and some graves over the area, and the respondents were occupancy tenants were not controverted.

The learned trial Judge refused to issue interlocutory injunction On appeal by the respondents, the learned District Judge reversed the order of the trial Judge and issued interim injunction prayed for this has been upheld by a learned Single Judge by means of the impugned Order made in revision moved by the petitioner. The learned Judge has agreed with the view taken by the District Judge that balance or convenience lay in the grant of interim injunction to preserve status ante during the pendency of the suit.

We have heard Dr. Manzoor Hussain Sial in support of the petition and consider that the interlocutory injunction was rightly issued in this case. In matters like this, the tree criterion is to consider on which side the balance of inconvenience and not of convenience as the learned Judge in the High Court and District Judge seem to have thought‑would lip id case interlocutory injunction is refused but the plaintiffs' suit ultimately succeeded. It is important to point out that when the applicant for interlocutory injunction is able to show prima facie the existence of right and‑ its infringement, injunction will issue only if the circumstances are such, that the object really is to avoid the comparative inconvenience or mischief which is likely to result from refusing it. In other wordy the' inconvenience will be greater than that which is likely to arise from refusing it. Keeping this principle in view, in the instant case, the balance of inconvenience lay definitely in refusing injunction for if the respondents' prayer for interlocutory injunction was refused and they ultimately succeeded' in the suit, the latter would have to amend the plaint or even file a separate suit to ask for the relief for mandatory, injunction for demolition of the wall. This would have also entailed a wastage of expense by the petitioner in constructing the wall which ultimately will have to be demolished. Conversely, no such result would ensue, if the petitioner is restrained frees raising the wall during the pondency of the suit. Even if the respondents' suit ultimately fails, it only means delay in the construction of wall for which the petitioner car' claim compensation under section 95, C. P. C.

The case therefore was rightly decided in, the High Court. Accordingly, the petition is dismissed.

Petition dismissed.

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