IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER S.B. CIVIL MISC. APPEAL NO.3262/2007 Hindustan Petrolium Corporation Ltd. Vs. M/s.Ramesh Chandra Suresh Chandra. 28.5.2008. HON'BLE MR. JUSTICE DALIP SINGH Shri S. Kasliwal, for the appellant. Shri M.M. Ranjan, for the respondent. This appeal has been preferred by the defendant appellant against the order dated 31.7.2007 by which the application filed by the plaintiff respondent herein for grant of a temporary injunction has been allowed. The plaintiff filed a suit for permanent mandatory injunction in respect of the sealing of their petrol pump by the appellant and its closure. The aforesaid petrol pump was closed and sealed by the appellant on account of the fact that an inspection was allegedly carried out by the officers of the appellant company on 17.6.2007 for checking the quality of the petrol products in accordance with the marketing disciplinary guidelines issued by the Ministry of Petroleum to all the oil companies. Learned counsel for the appellant broadly submitted that under the marketing disciplinary guidelines the company takes sample of its product at three levels i.e. (i)at the stage of its dispatch from the depot (ii) the sample is taken from the Tanker through which the product is transported and (iii)the sample is taken from the retail sale outlet of the petrol pump. The first two samples from the Depot and the Tanker are sealed and as per the procedure kept with the Dealer. As per the working of the guidelines when the quality control officials go along with the mobile Lab and take sample from the retail outlet and find any adulteration or impurity on inspection and tests carried out on the spot in the Mobile Lab the dealer is liable to action under the guidelines. The safeguard for the dealer lies when three samples from Depot the other from the Tanker and third from the retail outlet are sent for test at the laboratory set up at Shakur Basti in Delhi and if in case the sample from the retail outlet is similar to the one as has been taken from the Tanker or from the Depot the dealer would not be liable for any action. If on the other hand the sample which is taken from the retail outlet of the dealer is found adulterated and the other two sample from the Depot and the Tanker are not the dealer would be liable for action in terms of the guidelines which includes closure and sealing of the pump apart from other action. It is the case of the plaintiff interalia that the sample which was taken from Tanker which transported the supply was not tested at the Shakur Basti Laboratory at Delhi nor compared with the samples taken from the retail outlet and therefore the three tier system, which has been provided under the guidelines, had not been followed and as such the action which had been taken against the plaintiff was contrary to the guidelines and thus mala fide. The case of the defendant in this behalf was that seals on the sample taken from the Tanker and kept at the retail outlet of the dealer were not found in order and therefore the sample from the Tanker was not sent and checked at the Shakur Basti Laboratory or by the Mobile Lab on the spot. The learned trial court after having considered the above submissions came to a prima facie finding on page 9 of the certified copy of the impugned order that it was not proved and is disputed whether the disputed sample taken from the outlet of the plaintiff was adulterated as claimed by the defendant and the plaintiff was responsible for the same as the three tier check system had not been followed and the sample which had been kept with the dealer after having been taken from the Tanker which brought the supply was not inspected or tested by the Shakur Basti Laboratory at Delhi. The findings in this behalf reads as follows : "अत: ǒवप¢ी कȧ काय[वाहȣ दभ[वानापूव[क ूितत हो ती है । माल ु अपिमौीत है या नहȣं यह भी ǒववादȣत है, È यɉǑक तीन ः तरȣय जांच नहȣं हई है टɅकर के पेशोल डȣजल के नमूने शकुर बः ती मɅ नहȣं जांचा ु गया।........" While it was not correct on the part of the learned trial court to give a prima facie findings that the action of the appellant was malafide but it has not been disputed that the sample taken from the Tanker which was required to be compared with the sample taken from the outlet were not sent to the Shakur Basti Laboratory at Delhi by the appellant though it is submitted by the learned counsel for the appellant that this was not done as the seals were found to have been tampered. At present however there is no material to show that the seals were tampered and the plaintiff was in any manner responsible. This is a dispute which would require evidence and be proved during the trial. The fact remains that the procedure was not fully followed in letter and spirit. In accordance with the policy therefore the second sample taken from the Tanker on being tested could have prima facie led to the conclusion whether there was any adulteration or impurity for which the dealer was responsible and not the transporter. If the two are identical the dealer may reasonably plead that the product which he is selling is of the same quality as was delivered to him by the Transporter and hence it was incumbent under the policy to carry out the inspection of the sample taken from the Tanker at the Laboratory established for this purpose. More over the experts at the laboratory at Shakur Basti in Delhi could also have given an opinion whether the seals were tampered with or not. In the case at hand therefore the dealer may in the absence of testing the third sample from the Tanker successfully defend his case on account of the failure to send it for testing as per policy. There is however another aspect to the matter regarding determination of the fact whether the seals have been tampered with. In the instant case it was the sole opinion of the defendant appellant which in a given case may also be subjective. This, therefore, makes out a prima facie case in favour of the plaintiff and can be disproved by evidence at trial. Having said so whether the seals of the samples kept with the dealer which was taken from the Tanker were tampered with or not would be required to be established and proved by the appellant company and unless that is done the dealer cannot be penalized as the sealing and closure of the pump would result in irreparable loss to the dealer as the same is a severe penalty. During the course of hearing it was submitted by the learned counsel for the parties that the trial it is at the completion and both the parties have already led their evidence and the plaintiff only wants to lead evidence in rebuttal and it is that the stage that the trial now stand. At this late stage also, therefore, I find no necessity of altering the status quo as the appellants are making the necessary supplies to the plaintiff and the pump has been running satisfactorily. In view of the facts and circumstances of the present case therefore I am not inclined to interfere with the impugned order. In the facts and circumstances this appeal is disposed of and status quo as it exists today shall be maintained by both the parties during the pendency of the suit inasmuch as the appellant who are provided necessary and supply after the order dated 31.7.2007 to the plaintiffs shall continue to do so. It is also made clear that any observations made by the trial court or this court in the order of injunction shall not in any manner affect the rights of either party. The company is at liberty to carry out all necessary inspections in future in accordance with the policies and guidelines. This appeal as well as the stay application are disposed of. (DALIP SINGH),J. Ramchandrkhatri,PS