CPC O 39- conduct of parties

CPC -Orders and Rules

Civil Procedure Code, 1908 (V of 1908) - Order 39 - Temporary injunction - In a matter concerning grant of injunction, apart from the existence of a prima facie case, balance of convenience, irreparable injury, the conduct of the party seeking the equitable relief of injunction is also very essential to be considered - Defendants had materially altered their position evidently by the inaction of the plaintiff to institute the suit in time and having allowed third party rights to accrue by making substantial investments - Needless to state the balance of convenience is in favour of the defendants on account of the intervening developments, without furthermore, inter-alia by reason of the plaintiff having waited for seven months to institute the suit - The question of irreparable harm to a party complaining of a breach of contract does not arise if other remedies are available to the party complaining of the breach. M.P. Mathur v. DTC, (2006) 13 SCC 706, Wander Ltd. and another v. Antox India P. Ltd., 1990 Suppl. SCC 727, Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 SCC 545, relied. #2020 SCeJ 52

Held, we are therefore of the considered opinion that in the facts and circumstances of the present case, and the nature of the materials placed before us at this stage, whether there existed a concluded contract between the parties or not, is itself a matter for trial to be decided on basis of the evidence that may be led. If the plaintiff contended a concluded contract and/or an oral contract by inference, leaving an executed document as a mere formality, the onus lay on the plaintiff to demonstrate that the parties were ad-idem having discharged their obligations. #2020 SCeJ 52