A court while granting stay must consider three aspects viz. Balance of convenience (ii) Irreparable harm or injury (iii) Prima facie case, the Supreme Court has observed.
The bench of Justice Deepak Gupta and Justice Aniruddha Bose were considering the appeal filed by Mizoram Government against the High Court order which directed it to keep in abeyance all paper lottery draws pursuant to expression of interest dated 04.06.2019 pending final outcome of the writ petition.
It was contended that the effect of the order of stay is that no paper lotteries can be conducted and therefore the petitioner must be put on terms that if it loses the writ petition then it shall compensate the State for the loss suffered.
The bench taking note of the three aspects while granting stay observed:
"Even assuming for the sake of argument that the respondent no.1 writ petitioner has a prima facie case on merits, there is no balance of convenience in its favour. The respondent no.1 writ petitioner was running a paper lottery in the State of Mizoram with the same draw machine and with the same drawbacks in violation of the law which it now claims in its favour. The balance of convenience does not lie in favour of such persons. In case stay is granted, no loss or injury shall be caused to the respondent no.1 writ petitioner because it will be permitted to run the lottery as per the bid submitted by it. On the other hand, if the lotteries are not permitted to run, the State will lose about Rs. 20 lakhs daily. There is no way this loss can be compensated by the respondent no.1 writ petitioner since it is unwilling to furnish any bank guarantee in this regard. "
These three aspects are to be considered while granting injunction also. In Kashi Math Samsthan & Anr vs Srimad Sudhindra Thirtha Swamy, it was observed thus: In an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted.
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