IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 744 of 2010 (M/S) Dilip Rai S/o Sri Khirod Rai and others ..……… Petitioners. Versus Narayan Chandra Sardar ……… Respondent. Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. S.K. Mandal, Advocate for the petitioners. Mr. Yogesh Pacholiya, Advocate for the respondent. Hon’ble Tarun Agarwala, J. Heard Shri Rajendra Dobhal, the learned Senior counsel assisted by Mr. S.K. Mandal, the learned counsel for the petitioners and Mr. Yogesh Pacholiya, the learned counsel for the respondent. The plaintiff filed a suit for permanent injunction restraining the defendants and their agents from interfering in the possession of the plaintiff on the land in question. An application for temporary injunction was filed under Order 39 Rule 1 of the C.P.C. which application was rejected by the trial court by an order dated 13/11/2007. The plaintiff filed an appeal after six months before the lower appellate court under Order 43 Rule 1 (r) of the C.P.C. This Misc. appeal was allowed by the lower appellate court by an order dated 20th April, 2010 and the appellate court granted a temporary injunction restraining the defendants and their agents from interfering in the possession of the land of the plaintiff. The defendants, being aggrieved by the grant of injunction, has filed the present writ petition. Shri Rajendra Dobhal, the learned Senior Counsel submitted that, at the outset, that the lower appellate Court has considered such documents which were not part of the record of the trial court and, consequently, the lower appellate court should not have granted injunction based on such documents. The learned counsel submitted that if the lower appellate court found that some case 2 was made out by the plaintiff, he should either have admitted such documents or should have remitted the matter to the trial court for consideration. The submission of the learned counsel for the petitioners appears to be very attractive in the first blush but on a closer scrutiny, this Court is of the opinion that such submission cannot be taken into consideration for the reasons that such averment has neither been stated with clarity or with precision in any paragraph of the writ petition nor has it been alleged in the grounds. Further, from a perusal of the order of the lower appellate Court, the Court does not find that the documents considered by the Court were such which were filed before the lower appellate court. Consequently, this ground cannot be taken into consideration by the Court. In order to obtain an injunction from the Court, the plaintiff must prima-facie prove his case and, only thereafter, balance of convenience and irreparable injury is required to be considered. The petitioners contends that he is the owner and in the possession of the land in question and in this regard has filed various copies of the revenue records indicating that he is in possession of the land. The Court finds that most of the documents, the column relating to the possession is left blank and, in one such document, the name of the petitioner No.1 Dilip Rai was shown that he was in possession. In another document, there is an endorsement that by an order dated 8th September, 2006, the Tehsildar has struck off the said entry. On the basis of this document, the learned counsel submitted that he has filed an application under the U.P. Tenancy Act which is pending consideration. In my opinion, the petitioner cannot take any advantage from this document to indicate that he was in possession of the premises in question at some point of time. At the moment, the entry of the Tehsildar indicates that the entry relating to the possession of petitioner No.1 has been struck off. That order at the moment is still operative. 3 In the light of the aforesaid, there is no clear-cut evidence which has been brought on record to indicate that either of the parties are in possession of the property in question. Consequently, this Court is of the opinion that the injunction granted by the lower appellate Court is not justifiable in the facts and circumstances of the case. Consequently, the order dated 28th April, 2010 is not justifiable and is set aside. The writ petition is allowed. This Court by an interim order dated 18/05/2010 had granted an interim injunction directing the parties to maintain the status quo on the spot in regard to the property in dispute. In my opinion, the said interim order should continue till the disposal of the suit. Consequently, the court directs the parities to maintain the status quo on the spot, as existing as on date, which will continue to operate till the pendency of the suit. (Tarun Agarwala, J.) Dated 07.07.2010 Shiv