@JUDGMENTTAG-ORDER
K.P. Singh, J.@mdashAggrieved by the order dated 26-4-1990 in favour of the plaintiff- respondent, the defendants-appellants have preferred-noted appeals.
2. There is a dispute between the plaintiff-respondent No. 1 and the defendant-respondent No. 2 with regard to licence. Theka for collection of carcass, hides and bones of dead animals. The plaintiff-respondent had filed suit for permanent injunction against the defendants on the ground that the plaintiffs-respondents are entitled to the Theka and the defendants-appellants have wrongly granted Theka to the defendant-respondent No. 2 in each appeal, therefore, the suits for permanent injunction against the defendants. An application for interim injunction was moved by the plaintiff-respondent which has been granted by the impugned order after hearing the parties. Therefore, aggrieved by the impugned order dated 26-4-1990, the defendants-appellants have preferred the above noted appeals.
3. The learned counsel for the appellants has assailed the impugned judgment on the ground that the trial court has misappreciated the order of this Court dated 29-3-1990 in Civil Misc. Writ Petn. No. 9639 of 1989 -- Pashu Shav Chhedan Evam Haddi Choora Audyogic Utpadan Co-operative Society Ltd. Kasiwala, Bijnor v. Zila Parishad, Bijnor. According to him the impugned order should be set aside on the aforesaid ground alone.
4. Second contention raised on behalf of the appellants is to the effect that the trial court has wrongly observed that the appellants have violated the order of the Government as well as the dictum of law laid down by the highest Court in granting Theka to the defendant-respondent No. 2 in the above appeals.
5. Third contention raised on behalf of the appellants is to the effect that the trial court has wrongly construed the order of the High Court in favour of the plaintiff-respondent. According to the learned counsel for the appellants, the judgment of the High Court dated 29-3-1990 in Writ Petn. No.9639 of 1989 was in favour of the appellants and the observation in the aforesaid judgment related to the year 1990-91 but the same has been wrongly appreciated by the trial court.
6. The learned counsel for the defendant- respondent No. 1 has submitted that the appeals are not maintainable. It has been emphasized by the learned counsel for the defendant respondent No. 1 that the appellants are pleading the cause of the defendant-respondent No. 2, therefore, the appeals have no merit and should be dismissed.
7. We have heard the learned counsel for the parties at some length. We are not impressed with the submission of the learned counsel for the appellants that the trial court has misconstrued the order of this Court dated 29-3-1990. The relevant extract of the order relied upon by the learned counsel for the appellants is as below :--
".....However, learned counsel for the petitioner made a submission that his application be considered in terms of the aforesaid circular and in the light of the observations made by the Supreme Court in the case Gulshan v. Zila Parishad reported in 1988 U.P.L.B.E.C. 82
"We, therefore, accordingly direct that if such an application has already been moved by the petitioner before respondent No. 1, the same shall be disposed of by him in accordance with the guide-lines made by the Supreme Court in the above authority. It is further directed that if the petitioner is found qualified for the grant of licence sought for, and if the auction has not taken place so far, the application of the petitioner shall be considered by the respondent No. 1 in accordance with the terms of the circular and observations made in the aforesaid authority."
8. It is noteworthy that the aforesaid order cannot help the submissions made on behalf of the appellants as the application for grant of licence with regard to the year 1990-91 had already been decided before the judgment relied upon by the learned counsel for the appellants was rendered. In this view of the matter we do not think it necessary to deal with the contention raised on behalf of the appellants in this regard.
9. As regards second contention raised on behalf of the appellants the learned counsel for the appellants has not been able to substantiate the contention.
10. Regarding third contention, it appears that the trial court is under wrong notion that the observations made by the learned Judges in the above-mentioned writ petition related only to the year 1989-90 but we think that the mistake committed by the trial Court in this regard does not vitiate the conclusions as the order of this Court dated 29-3-1990 cannot be pressed in service to help the submission of the appellants as the grant of licence for the year 1990 had taken place on 27-3-1990.
11. During the course of arguments, we enquired of the counsel for the plaintiff-respondent how the trial Court directed the appellants to grant licence to the plaintiff in an application for temporary injunction contemplated by the provisions of Order 39 of the Civil Procedure Code. The learned Counsel for the plaintiff-respondent could not give any satisfactory answer. Rather, he suggested that the appeals be allowed and the trial Court be directed to decide the suits within two months from the date when a certified copy of this order is produced before the trial Court. The learned Counsel for the appellants also suggested that the operation of the impugned order be stayed and the trial Court be asked to decide the claims of the parties within two months from the date when a certified copy of this order is produced before the trial Court. Counsel for both the parties have stated before us that their clients will not take adjournments before the trial Court and would co-operate in getting decision in the suit within the time mentioned above. In our opinion, the direction of the trial Court in the impugned order dated 26-4-1990 to the effect that the appellants should grant the licence to the plaintiff-respondents is in excess of the powers enjoyed by the trial Court under O. 39, C.P.C. The provisions of Order 39 of the CPC ordinarily contemplate temporary prohibitory injunction in the circumstances mentioned in the aforesaid provisions. We think that the trial Court has exceeded its jurisdiction in granting mandatory injunction against the appellants. The trial Court should also consider the provisions of Order 39, Rules 1 and 2, C.P.C. as amended by the State amendment while dealing with the claims of the parties in the above-noted appeals.
12. In
".....It is only in very rare cases that a mandatory injunction is granted on an interlocutory application and instances where such an injunction is granted by means of an "ad interim" order pending the decision of the application itself are almost unknown.
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It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed at the date when the suit was instituted."
13. In Magnum Films v. Golcha Properties Pvt. Ltd. AIR 1983 Del 392 a single Judge of that Court has indicated vide Headnote''A'' -
"A temporary mandatory injunction can be issued only in case of extreme hardship and compelling circumstances and mostly in those cases when status quo existing on the date of the institution of the suit is to be restored."
14. In the present case, the trial Court has given a finding regarding the balance of convenience in favour of the plaintiffs without realising that defendant No. 3 had already started collecting carcass, hides and bones of dead animals before the date of the suit. If the auction in favour of defendant-No. 3 is bad in law, the necessary arrangement should have. been made by the trial Court with a view to adjust the equity between the parties at the time of final decision of the suit. Since defendant No. 3 has not filed the abovenoted appeal, we maintain the order against defendant No. 3 in each suit but we left it open to the trial Court to make necessary arrangement to adjust the equity between the parties for the period it decides the claims of the parties hereafter.
15. In the ends of justice we set aside the impugned order dated 26-4-1990 so far as it has directed the appellants to execute a licence in favour of the plaintiff-respondents. The impugned order shall remain operative insofar as it relates to defendant No. 3 in the suits. It is hoped that the contesting parties shall co-operate and will not get unnecessary adjournments and the trial Court shall decide the claims of the parties in the suits finally within two months from the date when a certified copy of this order is produced before it. The trial Court will take the case day to day so that no delay in deciding the claims of the parties may take place before it.
16. For the foregoing discussions, the abovenoted appeals succeed and the impugned orders of the trial Court dated 26-4-1990 in the two suits are hereby set aside as they relate to direction against the appellants but the impugned orders shall remain operative against the defendant No. 3 in each suit till the claims of the parties are finally decided by the trial Court. There would be no order as to costs.
A copy of the judgment may be given to the learned Counsel for the party on payment of usual charges within 24 hours.
17. Appeals allowed.
