JUDGMENT

The equitable remedy by way of an injunction whether mandatory or interlocutory in nature, is discretionary in nature and is never granted as a matter of course. Lord Diplock's speech in the American Cyanamid's case (American Cyanamid Co. v. Ethicon Ltd. (1975) 1 All ER 504) lays down certain guidelines for the grant of interlocutory injunctions. According to these guidelines the plaintiff must first satisfy the Court that there is a serious issue to decide and that if the defendants were not restrained and the plaintiff won the action, damages at common law would be inadequate compensation for the plaintiffs loss. Once satisfied of these matters, the Court will then consider whether the balance of convenience lies in favour of granting the injunction or not, that is, whether justice would be best served by an order of injunction. The great value of the Cyanamid case lies in its treatment of interlocutory injunctions as an aid to doing justice in the litigation. The demands of justice when it comes to the question of whether or not to maintain the status quo until the trial, cannot be governed by rules. What should be borne in mind in addition to the test phrased by Lord Diplock, is his reminder that at this stage the Court does not and cannot judge the merits of the parties' respective cases and that any decision on justice will be taken in a state of uncertainty about the parties rights. It would seem to follow from this that, if there is uncertainty, the Court should be doubly reluctant to issue an injunction, the effect of which is to settle the parties' rights once for all (See in this context All ER Annual Review: 1984).

2. In order to, however, appreciate the true scope and effect of Lord Diplock's speech in Cyanamid case (1975-1 All ER 504), it would be worthwhile to recapitulate the law as it stood prior to the decision in Cyanamid case. The House of Lords in the case of J.T Stratford & Sons Ltd. v. Lindley, reported in 1965 AC 269 laid down that in the matter of grant of an interlocutory injunction, the plaintiff had to show a strong prima facie case, that is, his rights had been infringed. He was then required to show that damages would not be an adequate remedy, if he succeed in the trial and that the balance of convenience favoured the grant. In other words, House of Lords held that an interlocutory injunction would not be granted, unless the plaintiff could show that it was more likely than not that he would succeed in obtaining a final injunction at the trial.

3. It is at this juncture, however, the precise effect of Lord Diplock's speech in Cyanamid case (1975-1 All ER 504) ought to be considered. Lord Diplock observed “………..the governing principle is that the Court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiffs claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the Court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiffs undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason on this ground to refuse an interlocutory injunction.”

Lord Diplock, however, went on to say further:

“It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises, it would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.”

4. Similar view has also been expressed by the House of Lords in the case of Dimbleby & Sons Ltd. v. National Union of Journalists, reported in (1984) 1 All ER 751.

5. It is, therefore, apparent that the question of damages as also balance of convenience has not really been ignored or been said to be of trifling value. American Cyanamid case (1975-2 All ER 504) has not really as such made a departure from the age-old law as regards the grant of interlocutory injunction. The Supreme Court in the decision of United Commerical Bank v. Bank of India, AIR 1981 SC 1426 also laid down that even if there was a serious question to be tried, the balance of convenience ought to be considered in the matter of grant of injunctions. Further, this Court in the case of Damodar Valley Corporation v. Haripada Das & Ors., reported in AIR 1978 Cal 489, also held that on being satisfied that there is a serious question to be tried, the Court also ought to consider the issue of balance of convenience and whether the plaintiff, would be adequately compensated by an Award of damages in the event of his success in the suit.

6. On the state of law as discussed above it, therefore, is to be seen whether, the ad interim injunction granted by this Court ought to be continued in the facts under consideration.

7. The plaintiff is The Captain of the Ladies' Golf Club, Calcutta, a Society registered under the West Bengal Societies' Registration Act, 1961. The plaintiff contended that from about 1891 the Club came into possession of a piece of land in Calcutta Maidan subject only to the administrative control of the Police authorities and the Club has been in possession of the land continuously and as of right for over 90 years and had constructed a structure which is used as a Pavillion for which a fee was at all material times and is still being paid to the authorities. The Ladies' Golf Qub maintains a Golf Course for its Lady Members and there are regular members who are playing golf in the course. The plaintiff averred that on Dec., 19, 1985 some workmen engaged by and on behalf of the Calcutta Tramways Authority suddenly commenced to encroach upon a portion of the land and began to dig the same and continued to do so without consent or authority of the Club. The plaintiff/petitioner's definite case is that the respondent authority have trespassed on to the petitioners' land to the extent of roughly 100 ft. long and 20 ft wide and 8 deep by reason wherefor the petitioner has suffered damages on its 8th Fairway as also the 5th and 9th trees within this course. The plaintiff/petitioner assessed the damages at Rs. 5000/-.

8. The counter-affidavit filed by the respondent Calcutta Tramways Company inter alia asserted that on the proposal of construction of the Second Hooghly Bridge which was undertaken under the Hooghly River Bridge Commissioners, the Calcutta Improvement Trust took up the matter with the Calcutta Tramways Company in 1973 asking the diversion and realignment of tram tracks along the Kidderpore Road for the construction of Calcutta Side inter-change for Second Hooghly Bridge.. The respondents, contended that diverse discussions were had right from the very beginning with all the authorities concerned about the same, and due sanction and/or permission from the Defence Authority had already been obtained in that regard. Strenuous submissions have been made on behalf of the respondent Tramways Company that the inter-section of the Calcutta side of the Second Hooghly River Bridge would be rendered absolutely useless in the event the ad interim order of injunction is directed to continue. Realignment of the Tramway line is indispensable, without which there would be a tremendous blockade by the flow of traffic and the benefit of having a Second River Bridge would be completely lost to the public in general.

9. Mr. Arun Prokash Chatterjee, the learned Standing Counsel appearing for the Tramways Company relied on the recorded minutes of the meetings between the representatives of the Ladies' Golf Club and the authority concerned wherefrom it appears that at an earlier point of time there was no objection from the Ladies' Golf Club in regard to the realignment of the Tramways track.

10. Mr. D.K De, the learned Advocate appearing for the Ladies' Club, however, submitted that the original plan and/or drawing on which such an agreement was effected had since been changed and the tees and the fairway of the Golf Course for the entire stretch on the Kidderpore Road would be affected by reason of the encroachment of the land by the Calcutta Tramways Company.

11. While it is true that realignment of the Tramway track would definitely, affect the golf course, but it would have to be seen as to whether the Law Courts would be justified in the matter of granting an order of injunction in a case like this, where benefit to millions may be thwarted or be rendered nugatory in order to allow a small section of the people to enjoy and relax in the lush green area of Calcutta Maidan, Crores of rupees have been spent on the Bridge to ameliorate the conditions of the travelling millions in the city of Calcutta. Tramways tracks if allowed to remain on the existing path without any realignment of the same, the experts opine, would lead to such a traffic hazard that the Bridge would be of no use to its users. Criticism has been levelled on the alteration of the alignment of the tramway tracks since 1979, but Calcutta's problems including the traffic has not remained static since 1979. The authorities are now faced with multifarious problems and in an attempt to remedy the problems, efforts are now being made so that the problems may remain at a minimal and not take a gigantic shape. In its bid to restrict the problems to the minimal, the authorities thought it fit upon expert advice to further realign the tramway track. There is no denial of fact that traffic hazard is enormous in the city of Calcutta, but in a developmental work Undertaken by the appropriate authority for the benefit of the millions, balance of convenience ought to be of prime consideration in the matter of grant of injunction. This is, however, apart from the issue as regards the question of damages being an adequate remedy though, however, I am not expressing any opinion in regard thereto.

12. Mr. De however, strenuously contended that a possessor can maintain an action against a wrong doer and relied on the decision of Privy Council in the case of Ismail Ariff v. Md. Ghouse reported in (1893) 20 Ind. App. 99, wherein Sir Richard Couch observed that the possession of the plaintiff was sufficient evidence of title as owner against the defendant and if the plaintiff had been dispossessed otherwise, then in due course of law, he could by a suit have recovered possession notwithstanding any other title that might be set up in such suit and an injunction to restrain the wrong doer from interfering with his possession. But, in my view, the decision referred to above has no manner of application in the facts of the case under consideration.

13. Mr. De next relied upon the decision of Supreme Court reported in AIR 1968 SC 1165, in the case of Nair Service Society v. K.C Alexander. In that decision the Supreme Court observed that the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The Supreme Court went on to observe that between the two claimants, neither of whom having a title, the plaintiff, if dispossessed, is entitled to recover possession subject, of course, to the law of limitation. But the matter ought to be looked into in the proper perspective and considering the facts and circumstances noted above, the said decision is also of no assistance to Mr. De. Same is the position in regard to other decision of the Supreme Court in the case of Somnath Berman v. S.P Raju, reported in AIR 1970 SC 846.

14. In my view, the balance of convenience ought to be considered as a pre-eminent consideration in the matter of grant of an interlocutory injunction in the facts of this case. The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss or injury. Even though some affectation of right may be involved in the matter, but can it be termed to be such so as to render it an irreparable loss? Admittedly, the area in question consists of about 29 big has of land in the Calcutta Maidan area making of tees and fairways afresh is not an impossibility though there may be claim for damages. If other conditions being satisfied as to its entitlement, the overriding consideration is, can a developmental project be even temporarily suspended for the convenience of a small section of people. In my view, the answer ought to be in the negative as otherwise the same would lead to a catastrophe which is not only unwarranted, but wholly undesirable as well.

15. In the premises aforesaid, I am of the view that the plaintiff has not made out a sufficient case for the grant of an interlocutory injunction and as such, this application fails and is dismissed. All interim orders are vacated. Cost of this application, however, be cost in the cause. Stay of operation of this order prayed for but is refused.

Application dismissed.