MOOT MEMORIAL- INJUCTION, Assignments of Law

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Roll Number - 2016LJA

GURU NANAK DEV UNIVERSITY - 2nd^ MOOT COURT

SEMESTER 9

Before

THE CIVIL JUDGE SENIOR DIVISION

APPLICATION NO. ____ OF 2021

UNDER ORDER XXXIX, RULE 1 AND RULE 2 OF CIVIL

PROCEDURE CODE, 1908

BETWEEN

PLANTIFF………………………………………………APPLICANT

v.

DEFENDANT……………………………………………RESPONDENT

IN THE MATTER CONCERNING AD-INTERIM INJUNCTION

MEMORIAL ON BEHALF OF RESPONDENT

TABLE OF CONTENTS

• 1. LIST OF ABBREVIATIONS………………………………
• 2. INDEX OF AUTHORITIES………………………………
  • • Cases………………………………………………………………
  • • Books and Lexicons………………………………………………
  • • Statutes……………………………………………………………
• 3. STATEMENT OF JURISDICTION………………………….……
• 4. STATEMENT OF FACTS…………………………………….……
• 5. ISSUES PRESENTED………………………………………..……
• 6. SUMMARY OF ARGUMENTS………………………………….…
• 7. ARGUMENTS ADVANCED ………………………………………….
     • [1.1] Definition of Ad-Interim Injunction……………….………… [1] WHETHER THE APPLICATION IS MAINTAINABLE?
     • [1.2] Prima Facie Case………………………………………….……
     • [1.3] Irreparable Injury……………………..………………..……
     • [1.4] Balance of (In)convenience……………………………….…
• 8. PRAYER…………………………………………………………………

TABLE OF ABBREVIATIONS

Abbreviation Meaning AC Appeal Cases AIR All India Reporter Anr. Another Cal Calcutta Code Civil Procedure Code, Corpn. Corporation Cut LT Cuttack Law Times Ed. Edition ELT Equivalent Hon’ble Honourable i.e. That is Kant Karnataka KLT Kerala Law Times No. Number Ors. Others Para Paragraph SCC Supreme Court Cases SC Supreme Court u/s Under section v / vs. Versus Vol. Volume

INDEX OF AUTHORITIES

• CASE LAWS CITED :

Issue I

1. Dorab Cawasji Warden vs. Coomi Sorab Warden and Ors., 1990 AIR 867

2. Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad,

1995(5) SCC 545

3. Martin Burn Ltd. V R.N. Banerjee, AIR 1958 SC 79

4. Seema Arshad Zaheer and Others v. Municipal Corpn. of Greater Mumbai and

others, 2006 (4) KLT 65 (SC)

5. Dalpat Kumar v Prahlad Singh, AIR 1993 SC 276

6. Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974)

40 Cut LT 336

7. Mathew Philips vs P.O. Koshy, AIR 1966 Kant 74

8. Dr. K. Panduranga Nayak vs Smt. Jayashree, AIR 1990 Kant 236

9. Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974)

40 Cut LT 336

10. American Cyanamid Co. v. Ethicon Ltd., 1975 (AC) 396

• BOOKS USED :

• STATUTES USED :

S. No. NAME OF BOOK

1. Civil Procedure (CPC) with Limitation Act, 1963,C.K.Takwani

Eastern Book Co.(EBC)

S.No. STATUTES

1. The Code of Civil Procedure, 1908 2. (^) Specific Relief Act 1963

STATEMENT OF JURISDICTION

The Counsel for the Respondent, the Defendant, hereby humbly submits to this

Honourable Court’s Jurisdiction under Section 15 of the Civil Procedure Code, 1908 1.

(^1) Section 15 : Court in which suits to be instituted. - Every suit shall be instituted in the Court of the lowest grade competent to try it.

STATEMENT OF FACTS

RELATIONSHIP BETWEEN THE PARTIES

The plaintiff, in the present case, is the elder brother of the defendant. He acquired a property and constructed the same. When this event took place, the defendant was 17 years old. Further, the plaintiff permitted the defendant to stay on the 1st^ floor of the said property.

RELATIONSHIP TURNED SOUR

After the marriage of the plaintiff, the relations between the two brothers turned sour. The reason behind this turn in the relationship was because of the obstruction caused by the defendant when the plaintiff wanted to construct two toilets on the ground floor and along with that raise construction on the 2nd^ floor.

LEGAL RECOURSE

Infuriated by the obstruction caused by the defendant, the plaintiff filed a suit for possession of the 1st^ floor, declaration and injunction. Along with this suit, he also moved an application under Order XXXIX, Rule 1 and Rule 2 of the Civil Procedure Code, 1908 for ad-interim injunction.

THE TWO STAIRCASES

The ad-interim injunction is for the removal of the staircase which according to the plaintiff, has been constructed by the defendant in the front of the property without taking the consent of the plaintiff or a sanction of the municipal corporation. The plaintiff alleges that there is a staircase in the backside, which is properly sanctioned and in use. He further states that, he cannot enjoy his property unless the construction by the defendant is removed.

ISSUE PRESENTED

ISSUE I

WHETHER THE APPLICATION MADE BY THE APPLICANT

FOR THE AD-INTERIM INJUNCTION FOR THE REMOVAL OF

THE OF THE FRONT STAIRCASE IS MAINTAINABLE OR NOT?

SUMMARY OF ARGUMENTS

ISSUE I : WHETHER THE APPLICATION MADE BY THE APPLICANT FOR THE

AD-INTERIM INJUNCTION FOR THE REMOVAL OF THE OF THE FRONT

STAIRCASE IS MAINTAINABLE OR NOT?

It is humbly submitted before the Hon’ble Court that application for the ad-interim injunction made by the plaintiff for the removal of the staircase constructed in the front of the property by the defendant is not maintainable because the defendant is in permissive possession of the property and while it subsists he is entitled to enjoy the easements as well. It is further submitted that the 3 essentials required for the grant of injunction - prima facie case, irreparable injury to the applicant and balance of convenience are not in the favour of the applicant-plaintiff. He did not object when the construction of the staircase was being done and neither did he approach the authorities. He only asked for its demolition when the defendant obstructed him. Demolition of staircase would actually result in an irreparable injury to the defendant rather than to the plaintiff.

ARGUMENTS ADVANCED

ISSUE I : WHETHER THE APPLICATION FOR AD-INTERIM

INJUNCTION IS MAINTAINABLE OR NOT?

[1.1] Meaning of Ad-Interim Injunction :

1. It is humbly submitted before the Honourable Court that the application filed by the Plaintiff for the removal of the staircase in front of house through an ad-interim injunction is not maintainable since the Plaintiff in the present case has no prima facie case which is the most important requirement for the grant of an injunction order by the Court, neither he has suffered any irreparable injury and the balance of convenience also swings in favour of the defendant. Further, it is an admitted fact on record that defendant is in the permissive possession of the first floor. Even though he is not owner, yet he is in possession, hence he cannot be removed from possession forcibly except in due course of law, hence as long as he is in possession of the first floor, he is entitled to all the easements attached with the first floor of the suit property.
2. The Black’s Law Dictionary defines Injunction as “a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury.”^2
3. The Cambridge Dictionary defines Injunction as “an official order given by a law court, usually to stop someone from doing something.”^3 (^2) Black’s Law Dictionary - Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, By HENRY CAMPBELL BLACK, M. A. (^3) Cambridge Dictionary

4. An injunction is a judicial process whereby a party is required to do , or to refrain from doing, any particular act. It is a remedy in the form of an order of the court addressed to a particular person that either prohibits him from doing or continuing to do a particular act (prohibitory injunction); or orders him to carry out a certain act (mandatory injunction).^4
5. The present application is that of an ad-interim injunction which is basically a stage of the temporary injunction. A temporary injunction, may as it very often does, consists of two stages, one granted without finally disposing of the application for injunction to operate immediately till the disposal of the said application and the other granted while finally disposing of the main application to ensure generally till the disposal of the suit. While the former is generally classed as “ ad interim injunction ” , the latter is generally called “ temporary injunction ”. 5
6. Before granting the injunction as an equitable relief, the Court has to satisfy itself regarding the fulfilment of three essential factors. These factors, known as the “ three pillars ”, are the foundation on which every order of injunction rests. Apart from this, it is also referred to as the “ triple test ” for the grant of interim injunction. These factors are as follows : (i) Whether the plaintiff has a prima facie case? (ii) Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction is not granted? (iii) Whether the balance of (in)convenience is in favour of the plaintiff?
7. In Dorab Cawasji Warden vs. Coomi Sorab Warden and Ors. 6 , the Honourable Supreme Court of India laid down guidelines to be followed while granting injunctions. The guidelines are as follow : (^4) Halsbury's Laws of England (4th (^) Edn.) Vol. 24, para 901 (^5) Jagjit Singh Khanna vs Dr. Rakhal Das Mullick And Anr., AIR 1988 Cal 95 (^6) 1990 AIR 867

(i) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (ii) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (iii) The balance of convenience is in favour of the one seeking such relief.

[1.2] Prima Facie Case :

1. The expression "prima facie" means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary is disregarded.^7
2. It is humbly submitted before the Honourable Court that the plaintiff does not have a prima facie case, which is a condition precedent for the grant of the equitable relief of injunction that he is asking for. The reason for this is that the plaintiff filed for an ad- interim injunction for the removal of the staircase built by the defendant only when he filed a suit for possession and declaration. He instituted this suit after the alleged obstruction caused by the defendant.
3. It is further submitted that the plaintiff could have objected when the construction of the front staircase was taking place or approached the authorities at that time. Rather he stayed quiet at that time and only asked for its demolition when he brought a suit for possession and declaration. He has alleged that the defendant did not take his consent for the construction but from the facts we can clearly infer that the Plaintiff gave his implied consent by refraining himself from taking any action at the time of the construction of the staircase by the defendant. (^7) See Black’s Law Dictionary

4. It is further submitted that the plaintiff himself permitted the defendant stay on the first floor. Hence it is clearly meted out that the defendant has the permissive possession of the first floor. Further, defendant is entitled to enjoy easements attached with first floor. The staircase at the backside of the property doesn't allow the defendant to properly enjoy fruits of the first floor. Moreover, the plaintiff has to adduce evidence to justify that the staircase constructed by the defendant is unauthorised and unapproved by municipal corporation.
5. It is further submitted that this is a vexatious litigation on behalf of the plaintiff. He had the opportunity to approach the Municipal Corporation when he had a problem with the construction of the staircase in front of the house. Rather than doing so, he has now approached the Court for a remedy which he could’ve availed earlier. The reasons are just to harass the defendant and just to get back at him.
6. In Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad 8 , it was held that "Prima facie case" means that the Court should be satisfied that there is a serious question to be tried at the hearing, and there is a probability of Plaintiff obtaining the relief at the conclusion of the trial on the basis of the material placed before the Court. "Prima facie case" is a substantial question raised bona fide which needs investigation and a decision on merits. The Court, at the initial stage, cannot insist upon a full proof case warranting an eventual decree. If a fair question is raised for determination, it should be taken that a prima facie case is established. The real thing to be seen is that the Plaintiff’s claim is not frivolous or vexatious.”
7. In Martin Burn Ltd. V R.N. Banerjee 9 , it was held by the Supreme Court that “A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is (^8) 1995(5) SCC 545 (^9) AIR 1958 SC 79

whether on the evidence led it was possible to arrive at the conclusion in question and as to whether that was the only conclusion which could be arrived at on that evidence.”

8. In Seema Arshad Zaheer and Others v. Municipal Corpn. of Greater Mumbai and others 10 , it was held by the Supreme Court that “The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction. (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands. ”
9. In Dalpat Kumar v Prahlad Singh 11 , it was held by the Supreme Court that “The burden is on the plaintiff to satisfy the court by leading evidence or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial.

[1.3] Irreparable Injury :

1. In Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh 12 , the Orissa High Court held that, ‘ Irreparable injury’ means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused. (^10) 2006 (4) KLT 65 (SC) (^11) AIR 1993 SC 276 (^12) (1974) 40 Cut LT 336

2. It is humbly submitted before the Honourable Court that the second ingredient for the grant of injunction is that there should be an irreparable loss. In the present case, there is no such injury which the plaintiff will have to suffer. However, if the staircase at front is removed, it will cause irreparable loss and injury to defendant rather than plaintiff as it would cause inconvenience and monetary loss to the defendant.. The reason for this being that it will be a very costly affair to defendant for reconstruction of staircase if the suit of the plaintiff in end fails. On the other hand, the plaintiff would not suffer any kind of irreparable injury, if during the pendency of the suit the said staircase stays intact.
3. It is further submitted that notice of demolition has not been received from municipal corporation. Hence, apprehension of the plaintiff is without any foundation that no permission can be granted for developing the property unless the unauthorised construction is removed.
4. It is further submitted that a party should come to the court only after it has exhausted all the remedies available to him. When the plaintiff became aware of the construction of the first staircase he should have approached the municipal corporation for seeking the remedy of demolition which he is currently asking from the Court. The municipal corporations have their legalisations granting them powers to determine whether any contravention has been made or not. Hence, it is the right of the municipal corporation to demolish unauthorised construction, if any, after the due inspection by the municipal corporation commissioner.
5. In Mathew Philips vs P.O. Koshy 13 , His Lordship G. K. Govinda Bhat, J.of the Karnataka High Court held that “The City of Bangalore Municipal Corporation Act, 1949, is a self-contained Code, which provides a remedy for any contravention of its provisions or the bye-laws made thereunder. It is for the appropriate authority constituted under the Act to determine, whether or not a licensee of a building has contravened the terms and conditions of his licence. Prima facie, I am not satisfied that (^13) AIR 1966 Kant 74

any legal right of the plaintiff has been infringed or that he has any locus standi to maintain the suit. I do not wish to prejudice the final result of his suit by expressing any final opinion in the matter. The existence of a doubt as to the right of the plaintiff is sufficient to refuse the application for a temporary injunction.”

6. In Dr. K. Panduranga Nayak vs Smt. Jayashree 14 , the Karnataka High Court held that “The injunction sought for in the instant suit is that the Corporation Commissioner should be restrained from regularising these deviations. Such a relief is wholly unthinkable as rightly observed by the trial Court. Certain amount of discretion vests in the Commissioner and it is for him to take appropriate action as he deems fit. If the plaintiff does not sustain injury by such deviation then the Civil Court cannot grant injunction either prohibitory or mandatory as there is provision for approaching the Commissioner complaining of such a deviation.” [1.4] Balance of (In)convenience
7. In Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh 15 , the Orissa High Court held that, ‘Balance of convenience’ means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff, if temporary injunction is refused, would be balanced and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then interlocutory injunction alone should be granted.
8. Balance of convenience as under Halsbury's Laws of England - Unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the (^14) AIR 1990 Kant 236 (^15) Supra 12

balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.^16

3. It is humbly submitted before the Honourable Court that granting of the interim injunction will cause greater inconvenience to the defendant than the plaintiff.the defendant has used his money to build the front staircase to which the plaintiff impliedly consented by not objecting it at the time of the construction and also not approaching the municipal authorities. Granting of the interim construction will lead to demolition of the staircase. If at trial the suit concludes in favour of the defendant then reconstruction of the staircase will be a costly affair for the defendant.
4. It is further submitted that the plaintiff has filed for the demolition of the staircase out of malice. The defendant has been peacefully using the staircase continuously without any interference. It is only the plaintiff who has obstructed his peaceful enjoyment in order to get back at the defendant for the obstruction that he cause when the plaintiff tried to raise construction. Hence, balance of convenience swings in favour of the defendant.
5. In American Cyanamid Co. v. Ethicon Ltd. 17 , Lord Diplock observed that “The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where "the balance of convenience" lies.” (^16) Halsbury's Laws of England (Fourth Edition Reissue, 1991, Volume 24). (^17) 1975 (AC) 396

PRAYER

In the light of the facts stated, issues raised, authorities cited and pleadings advanced, the Counsel for the Respondent humbly prays that Hon’ble Court be pleased to adjudge, hold and declare:

• That the ad-interim injunction for the removal of the front staircase built by the respondent-defendant made by the plaintiff is devoid of any merit and is liable to be dismissed.
• That the respondent-defendant be awarded reasonable compensation under Section 95 of the Civil Procedure Code,1908 for the expense and injury caused to him. Any other order as it deems fit in the interest of equity, justice and good conscience. For This Act of Kindness, the counsel for Respondent be Duty Bound Forever Pray. Date: Sd/- Place: (Counsel for Respondent)