1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : Smt. Renuka Bhati & Others Vs. His Highness Maharawal Brijraj Singh & Another. (S.B. Civil Misc. Appeal No.819/2009) DATE OF JUDGMENT : February 01st, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Reportable Mr. J.R. Patel and Mr. G.R. Singhvi for appellant. Mr. L.R. Mehta/Mr. Ramit Mehta for the respondent. BY THE COURT : In this miscellaneous appeal, defendant- appellants are challenging order dated 01.06.2009 passed by the District Judge, Jaisalmer in Civil Misc. Petition No.12/2009, whereby, the learned trial Court allowed the application filed for temporary injunction under Order 39 Rules 1 & 2, C.P.C., read with Section 151, C.P.C. According to brief facts of the case, suit for perpetual injunction along with an application under Order 39 Rules 1 & 2, C.P.C. was filed by respondent- plaintiff in the name of His Highness Maharawal Brijraj 2 Singh against the defendant-appellants, successors of late Shri Chandraveer Singh. In the suit it is pleaded that plaintiff is sole heir and successor of Ex Ruler late His Highness Girdhar Singh ji and late Maharaja Raghunath Singh ji and, the property in question comes in his succession because as per law and custom governing the succession which is the rule of primogeniture, he being the seniormost male survivor from the original common ancestor, plaintiff is entitled to inherit the property of Ex Ruler of the State of Jaisalmer. It is mentioned in the plaint that before independence, as per the rule of primogeniture, late His Highness Girdhari Singh ji became sole owner of the property after the death of his father and late His Highness Girdhari Singh ji expired on 27.08.1950, survived by his two sons, and after his death, his elder son Maharaja Shri Raghunath Singh ji succeeded to the entire property of late His Highness Girdhari Singh ji. It is stated by the plaintiff that being the eldest son of late Raghunath Singh ji, he became entitled to inherit the properties of late Shri Girdhari Singh ji which was mentioned in the inventory dated 10.11.1949 which was prepared by the covenant and filed with the 3 plaint as Schedule-I. In the plaint, it is stated that Jaisalmer was sovereign State under the paramountcy of the British Crown. The Ruler was the supreme legislature, judiciary and head of Executive prior to independence. The Indian Independence Act, 1947 came into force on 15.08.1947 by which paramountcy of the British Crown was removed and State of Jaisalmer became independent sovereign state. As per the plaintiff- respondent, a covenant for formation of United States of Rajasthan was entered into by the Rules of certain States including the ruler of Jaisalmer and the said covenant was entered into at the guarantee of the Government of Rajasthan. As per Article 11 of the Covenant, the Ruler of each State continued to be the owner of the properties mentioned in the inventory as belonging to him on the date of his making over the administration of that State to the Raj Pramukh. Therefore, the suit properties which were marked by late His Highness Shri Girdhari Singh ji as his private properties, which is mentioned in the inventory, remained to be the private properties of his successor. The plaintiff claimed in the suit that he is the sole heir and successor of the estate of late Shri 4 Girdhari Singh ji and late Shri Raghunath Singh ji in accordance with the law and rule of primogeniture which was recognized by late Shri Chandraveer Singh also. In his life-time late Shri Raghunath Singh ji gave some properties including movable and immovable to late Shri Chandraveer Singh for his residence and maintenance; and, for the said purpose, on 20.04.1993, late Shri Chandraveer Singh executed a family settlement and renounced his right, title and interest in the properties in question in favour of the plaintiff- respondent. But, without any right, the legal successors of late Shri Chandraveer Singh, who are appellants before this Court, are claiming right of the properties upon the premises that they are also successors of late Shri Chandraveer Singh, son of late Shri Girdhari Singh and brother of late Shri Raghunath Singh. As per the plaintiff-respondent, there was no right created in favour of late Shri Chandraveer Singh because being elder son late Maharaja Raghunath Singh ji became sole owner of the property, being successor as per the rule of premoginature. The properties in question belonged to late Shri Girdhari Singh ji and late 5 Shri Girdhari Singh ji was Ex Ruler of Jaisalmer State though he died after implementation of the Constitution on 27.08.1950. but, after his death, late Shri Raghunath Singh ji, being elder son of late Shri Girdhari Singh ji, became His Highness of Jaisalmer State and became entitled for all the properties by virtue of signing of the covenant which is mentioned in the inventory. Being legal successor as per the rule of primogeniture became the sole owner of the property and after his death, defendant Brijraj Singh became sole owner of the property. But, successors of late Shri Chandraveer Singh, brother of late Shri Raghunath Singh ji are unnecessarily creating problems and claiming right in the property, therefore, the suit for perpetual injunction was filed and, along with the suit, application for temporary injunction under Order 39 Rules 1 & 2, C.P.C was filed. In the suit, a written-statement was filed by the appellant-defendants and denied all the allegations in the plaint and submitted that after independence on 15.08.1947, on 30.03.1948, Maharaja Girdhari Singh ji executed covenant and Letter of Merger to merge with the State of Rajasthan. Thereafter, on 10.11.1949, the 6 Government of India prepared a list of movable and immovable properties which were agreed to be kept as personal properties of late Girdhari Singh ji and after formation of the State of Rajasthan on 30.03.1948, the Government of Rajasthan took over possession of the properties belonging to the State while leaving the personal properties as per the terms of covenant. On 26.01.1950, late Shri Girdhari Singh ji was alive and was enjoying the properties given to the Ex Rulers. It is stated in the reply filed by the appellant- defendants that on the death of late Shri Girdhari Singh ji on 27.08.1950, as per the provisions of 'mitakshara', the properties included in the private properties became property of joint hindu family, in which, the son and daughter of late Maharaja Girdhari Singh ji were entitled for their right as coparceners. Thus on the basis of the above facts, late Shri Chandraveer Singh, brother of late Shri Raghunath Singh ji became entitled to half share in the ancestral joint hindu family property which were belonging to late Maharaja Shri Girdhari Singh ji at the time of his death. It is specifically denied that any right was created in favour of late Shri Raghunath Singh ji on the basis of rule of primogeniture because after independence only 7 those Ex Rulers were entitled to get benefit of primogeniture who becvame Rulers prior to promulgation of the Indian Constitution on 26.01.1950. But, in this case, Maharaja Girdhari Singh ji who became Ruler of State of Jaisalmer as per rule of primogeniture was alive but died after independence. At the time of independence on 15.08.1947, Maharaja Girdhari Singh ji was ruler and till his death he enjoyed the said status of Maharaja till 27.08.1950. But, before that Constitution of India was implemented in the country on 26.01.1950 and paramount control of the British Crown was lifted on 15.08.1947, therefore, those rulers who were existing rulers prior to implementation of the Contitution on the basis of rule of primogeniture remained Ex Rulers but, after independence, all the Ex rulers became citizens of India; and, as per provisions of Mitakshara School of Hindu Law, the properties which were in the control of late Shri Girdhari Singh ji who died on 27.08.1950 became personal properties of Maharaja Girdhari Singh ji and all the legal successors of Girdhari Singh ji became entitled for their share in the property because after framing and implementation of the Constitution there was no question of rule of primogeniture or Ex Ruler, that too, on the ground that 8 sovereignty of the Ex Ruler comes to end upon signing of the covenant and Letter of Merger of the State of Jaisalmer into larger State of Rajasthan on 30.03.1949; meaning thereby, sovereignty of the State of Jaisalmer came to end as and when the covenant was signed because after formation of the State of Rajasthan, upon signing the agreement by the Ex Rulers of the erstwhile States, certain properties were given to the Ex Rulers at that time and they were held entitled to enjoy the said properties but, after their death, that too, after implementation of the Constitution of India, the legal successors became entitled to get their share in the property of the Ex Ruler and there is no question of getting any succession as per the rule of primogeniture. Learned trial Court, after considering the above facts narrated in the plaint and written-statement, decided the application filed for interim injunction vide impugned order dated 01.06.2009 which is under challenge in this appeal. Heard learned counsel for the parties and perused the record of the case. In this case, learned counsel for the appellants has raised so many grounds for claiming relief against the order passed by the learned trial Court dated 9 01.06.2009. Learned counsel for the appellants argued that the suit itself is not maintainable without the prayer for declaration of right. The suit has been filed for perpetual injunction which is not maintainable. Further, it is submitted that in this case the appellant- defendants have seriously disputed the applicability of the Rule of Primogeniture, but, learned trial Court has committed serious error while accepting the plea of applicability of the rule of primogeniture at the interim stage. It is also argued that the learned trial Court has not correctly adjudicated the application while ignoring Section 80 of the Code of Civil Procedure which is mandatory in nature for instituting any suit. Likewise, learned trial Court has committed gross illegality while granting final relief upon the application filed for temporary injunction without deciding the issue of applicability of the rule of primogeniture. Therefore, the order impugned in this appeal is contrary to the principles laid down by the apex Court that no final relief shall be granted while deciding application for temporary injunction. Upon perusal of the finding of the learned trial Court in the order of temporary injunction application is virtually final adjudication of the matter without framing 10 issues and without taking evidence for adjudication of the issues. Learned counsel for the appellants invited my attention towards various judgments of the Hon’ble Supreme Court, more specifically, he has cited authorities related to the principles laid down by the apex Court for granting temporary injunction; and, vehemently argued that final relief sought in the suit has been granted by the trial Court upon the application filed for temporary injunction which is not permissible under the law. After promulgation of the Constitution of India, the successor of Ex Ruler of the Jaisalmer State who has preferred the suit beore the trial Court becomes citizen of India after death of the Ex Ruler, therefore, all the legal successors of the Ex Ruler late Maharawal Shri Girdhari Singh became entitled for their share in all the properties being legal successors of late Girdhari Singh ji, but, the learned trial Court has ignored this important aspect of the matter and passed the impugned order. On the other hand, learned counsel appearing on behalf of the respondents vehemently argued that no error has been committed by the trial Court because in view of the adjudication made by the Hon’ble Supreme Court and various High Courts, as per the rule of 11 primogeniture the present Maharawal Brijraj Singh s/o Raghunath Singh became sole successor of the Ex Ruler of the Jaisalmer State and he is entitled to enjoy the properties and status of the Ex Ruler. Learned counsel for the respondent-plaintiff has invited my attention towards various judgments of the Supreme Court and High Courts and submitted that the order passed by the learned trial Court upon the application filed under Order 39 Rules 1 & 2, read with Section 151, C.P.C. for temporary injunction has rightly been passed for interim relief which is prayed for in the suit. I have perused various judgments cited by learned counsel for the parties. In my opinion, all the judgments which have been cited before me for deciding the controversy on merit are required to be considered by the trial Court at the time of final adjudication of the suit. But, very important ground has been raised by the appellants with regard to granting final relief at interim stage while deciding application under Order 39 Rules 1 & 2, C.P.C. As per learned counsel for the appellants no final relief can be granted while deciding application for interim relief. For this purpose, learned counsel for the appellant- defendants has invited my attention towards following 12 judgments : (1) AIR 1985 SC 330 (2) 2000 (2) WLC (Rajasthan) 347 (3) 2004 (2) C.C.C. 88 (SC). In all the above judgments, it has been held by the apex Court that no final relief can be granted while passing interim order upon application filed under Order 39 Rules 1 & 2, C.P.C. In the case of AIR 1985 SC 330, Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. & Others, following adjudication has been made by the Supreme Court in para 5 and 7 of the judgment : “5. We repeat and deprecate the practice of granting interim order which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a hose of other relevant considerations. Regarding the practice of some clever litigants of resorting to filing writ petitions in far away courts having doubtful jurisdiction, we had this to observe : “……….. Having regard to the fact that the registered office of the Company is at Ludhiana and the principal respondents against whom the primary relief is sought are at New Delhi, one would have expected the writ petition to be filed either in the High Court of Punjab 13 and Haryana or in the Delhi High Court. The writ petitioners however, have chosen the Calcutta High Court as the forum perhaps because one of the interlocutory reliefs which is sought is in respect of a consignment of beef tallow which has arrived at the Calcutta Port. An inevitable result of the filing of writ petitions elsewhere than at the place where the concerned offices and the relevant records are located is to delay prompt return and contest. We do not desire to probe further into the question whether the writ petition was filed by design or accident in the Calcutta High Court when the office of the Company is in the State of Punjab and all the principal respondents are in Delhi. But we do feel disturbed that such writ petitions are often deliberately filed in distant High Courts, as part of a manoeuvre in a legal battle, so as to render it difficult for the officials at Delhi to move applications to vacate stay where it becomes necessary to file such applications.” In Union of India v. Jain Shudh Vanaspati Ltd. (supra), Chandrachud, CJ., A.P. Sen, R.N. Misra JJ. Allowed an appeal against an interim order making the following observations : “After hearing learned counsel for the rival parties, we are of the opinion that the interim order passed by the High Court on Nov. 29, 1983 is not warranted since it virtually grants to the respondents a substantial part of the relief claimed by them in their writ petition. Accordingly, we set aside the said order.” We have come across cases where the collection of public revenue has been seriously jeopardized and budgets of Governments and Local Authorities 14 affirmatively prejudiced to the point of precariousness consequent upon interim orders made by courts. In past, instances have come to our knowledge where Governments have been forced to explore further sources for raising revenue, sources which they would rather leave alone in the public interest, because of the stays granted by courts. We have come across cases where an entire Service is left in a stay of flutter and unrest because of interim orders passed by the courts, leaving the work they are supposed to do in a state of suspended animation. We have come across cases where buses and lorries are being run under orders of court though they were either denied permits or their permits had been cancelled or suspended by Transport Authorities. We have come across cases where liquor shops are being run under interim orders of court. We have come across cases where the collection of monthly rentals payable by Excise Contractors has been stayed with the result that at the end of the year the contracter has paid nothing but made his profits from the sop and walked out. We have come across cases where dealers in food grains and essential commodities have been allowed to take back the stocks seized from them as if to permit them to continue to indulge in the very practices which were to be prevented by the seizure. We have come across cases where land reform and important welfare legislations have been stayed by courts. Incalculable harm has been done by such interim orders. All this has been done by such interim orders. All this is not to say that interim orders may never be made against public authorities. There are, of course, cases which demand that interim orders should be made in the interest of justice. Where gross violations of the law and injustices are perpetrated or are about to be 15 perpetrated, it is the bounden duty of the court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen’s faith in the impartiality of public administration, a Court may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bona fide with due regard to the public interest, a court must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative burdensome inconvenience or orders preventing collection of public revenue for nor better reason than that the parties have come to the Court alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima facie case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of the public interest. There are many such factors worthy of consideration. We often wonder why in the case of indirect taxation where the burden has already been passed on to the consumer, any interim relief should at all be given to the manufacturer, dealer and the like. 7. Now coming to the facts of the present case, the respondent, Dunlop India Limited is a manufacturer of tyres, tubes and various other rubber products. By a notification dated April 6, 1984 issued by the Government of India, Ministry of finance (Department of Revenue) in exercise of the powers conferred by R. 8(1) of the Central Excise Rules, 1944, tyres, falling under Item 16 No.16 of the First Schedule to the Central Excise and Salt Act, 1944, were exempt from a certain percentage of excise duty to the extent that the manufacturers had not availed themselves of the exemption granted under certain other earlier notifications. The Department was of the view that the Company was not entitled to the exemption as it has cleared the goods earlier without paying central excise duty, but on furnishing Bank Guarantees under various interim orders of courts. The company claimed the benefit of the exemption to the tune of Rs.6.05 crores and filed a writ petition in the Calcutta High Court and sought an interim order restraining the central excise authorities from the levy and collection of excise duty. The learned single judge took the view that a prima facie case had been made out in favour of the Company and by an interim order allowed the benefit of the exemption to the tune of Rs. two crores ninety three lakhs and eighty five thousand for which amount the company was directed to furnish a Bank Guarantee, that is to say, the goods were directed to be released on the Bank Guarantee being furnished. An appeal was preferred by the Assistant Collector of Central Excise under clause 10 of the Letters Patent and a Division Bench of the Calcutta High Court confirmed the order of the learned single Judge, but made a slight modification in that the Collector of Central Excise was given the liberty to encash 30% of the Bank Guarantee. The Assistant Collector of Central Excise has preferred this appeal by special leave. By our interim order dated Nov. 15, 1984, we vacated the orders granted by the learned single Judge as well as by the Division Bench. We gave two weeks’ time to the respondent Company to file a counter. No counter has, however, been filed. Shri F.S. Nariman, learned counsel, 17 however appeared for the respondent. We do not have the slightest doubt that the orders of the learned single Judge as well as Division Bench are wholly unsustainable and should never have been made. Even assuming that the company had established a prima facie case, about which we do not express any opinion, we do not think that it was sufficient justification for granting the interim orders as was done by the High Court. There was no question of any balance of convenience being in favour of the respondent-company. The balance of convenience was certainly in favour of the Government of India. Governments are not run on mere Bank Guarantees. We notice that very often some courts act as if furnishing a Bank Guarantee would meet the ends of justice. No governmental business or for that matter no business of any kind can be run on mere Bank Guarantees. Liquid cash is necessary for the running of a Government as indeed any other enterprise. We consider that where matters of public revenue are that interim orders ought not to be made granted merely because a prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest. We are very sorry to remark that these considerations have not been borne in mind by the High Court and interim order of this magniture had been granted for the mere asking. The appeal is allowed with costs.” Co-ordinate Bench of this Court in the case of Chief General Manager State Bank of India & Others Vs. Shri Brij Mohan Shukla, 2000 (2) W.L.C. (Rajasthan) 18 347, held that while adjudicating on an application for temporary injunction no interim relief deciding the main controversy can be granted. Para 3 of the said judgment reads as under : “Admittedly, the plaintiff respondent has sought some relief in the plaint which has been asked for by him in the application under Order 39 Rules 1 and 2 CPC. By allowing the interim application under Order 39 Rules 1