Karnataka High Court
Sri Subramanya Sri Devara Bhandram vs Srinivasa Rao on 27 November, 1995
Equivalent citations: ILR1996KAR1485, 1996 A I H C 2500, (1996) 2 CIVILCOURTC 76, (1996) 2 CURCC 210, (1996) 1 KANT LJ 297
ORDER Hari Nath Tilhari, J.
1. This is a Civil Revision under Section 115 of the Code of Civil Procedure from the Judgment and order dated 7.3.1994 passed by the I Additional Civil Judge and C.J.M. Mangalore, D.K. in Miscellaneous Appeal No. 61/92 - Sri Subramanya Sri Devara Bhandram v. T. Srinivas Rao dismissing the defendant's appeal and confirming the order of temporary injunction granted by the Trial Court to the following effect: -
"The application filed by the plaintiff under Order 39 Rules 1 and 2 C.P.C. (I.A.II) is hereby allowed with costs.
It is hereby further ordered that the defendant, its men, servants and all persons claiming through it are temporarily restrained by way of temporary injunction from holding the celebration of Avabhratha Snana and Katte pooje to the presiding deity of the defendant temple at any other place except the tank situated in S.No. 11/5 in Thokoor village of Mangalore Taluk, during the pendency of the above suit.
The plaintiff shall pay necessary charges of Avabhratha Snana and Katte pooje according to the terms mentioned in the registered agreement dated 14.1.1994."
2. The brief facts of the case are that the plaintiff has filed a suit for declaration that the plaintiff and his successors-in-interest to have a right to "Avabhratha Snana" and "Katta Pooje" of Lord Subramanya Presiding deity of the defendant Temple in the water of tank situated in S.No. 11/5 of Thokoor Village of Mangalore Taluk and consequently for a permanent injunction restraining the defendant and all persons representing the defendant from holding the said celebration at any other places. While filing the suit for the above reliefs, the plaintiff filed an application under Order 39 Rules 1 and 2. The plaintiff claimed that right on the ground that it has become custom and practice and also on the basis of certain registered Agreement dated 14.11.44. According to the defendant's case, in the year 1989 the Temple authorities with the help of the devotees have constructed a water tank in the Temple premises specially for the purpose of "Avabhratha Snana" to the Idol of Lord Subramanya by spending a huge amount of Rs. 2 lakhs and thereafter a Resolution was also passed to the effect that 'Avabhratha Snana' of the idol of Lord Subramanya has to take place in the Temple's water tank and it was unanimously resolved by the Temple authorities, devotees and others, and 'Avabhratha Snana' of the Idol has to take place in the Temple tank on 25.11.90, and also during the festival of 1991. In course of pleadings in defence, it has been alleged that if the 'Avabhratha Snana' and 'Katta Pooja' is performed in the Temple premises tank, the plaintiff should not be and are not likely to suffer any loss or irreparable loss or injury. It has been stated that even therein the Agreement it is provided that in case that 'Avabhratha Snana' and 'Katta Pooja' is not performed at the plaintiff's tank, the Temple will be liable to pay sum to the maximum extent of Rs. 50/- to the plaintiff or his successors and the interest at the rate of 6 1/4% p.a. on that amount would also be payable and that being the position. The further plea had been taken in defence that the suit was not maintainable and interim relief could not be granted. The Trial Court considered the application and granted temporary injunction taking the view that the plaintiff has no doubt made out a prima facie case for trial and granting of temporary injunction is controlled by Order 39 Rules 1 and 2. It has been further held that merely because the Defendant has got efficacious or alternative relief of compensation, it does not mean that even because of the violation of the Agreement, he is not entitled to temporary injunction. The Trial Court further observed that under Order 39 Rule 2, the defendant can be restrained from committing breach of contract or other remedy. The Trial Court lastly observed that if temporary injunction is not granted in favour of the plaintiff, he will be put to much hardship because he has got prima-facie case and balance of convenience in his favour. The appeal having been filed, the lower Appellate Court dismissed the appeal after having observed that status-quo as existing prior to the filing of the suit is necessary to be maintained and arrangement has to be continued till the final disposal of the suit. Whether the compensation will be adequate remedy to constitute damage or whether the compensation will be sufficient remedy in the matter, it cannot be decided in Interlocutory Application and it has to be decided only at the stage of the Trial of the suit and dismissed the appeal. Having felt aggrieved from the Judgment and decree of the Court below, the defendant has come up in Revision under Section 115 of the Code of Civil Procedure.
3. It has been contended by the Revision applicant's Counsel - Sri Vishwanath Shetty, Senior Advocate, assisted by H. Jayakara Shetty, an Advocate of this Court that the Courts below have committed jurisdictional error in granting injunction order in terms as mentioned above and in directing the defendants to hold the celebrations only on the tank situated at Sy.No. 11/5 belonging to the plaintiff. The learned Counsel for the Revision applicant submitted that in the matter of the grant of temporary injunction no doubt the provisions of Order 39 Rules 1 and 2 of the Code are applicable, but the principle of law contained in the provisions of the Specific Relief Act, also control of granting temporary injunction and in cases where the permanent injunction cannot be granted, the Court has no authority to grant temporary injunction and this principle will control the granting of temporary injunction. Sri Shetty submitted that in case where the plaintiff-applicant has got alternative remedy or where breach of obligation as such occurs the compensation in money can be taken to be adequate relief temporary injunction is not available and should not be granted, He further made reference to Section 41 of the Specific Relief Act and submitted that injunction cannot be granted to prevent the breach of contract, the performance of which cannot be specifically enforced and made reference to the provisions of Section 14 of the Specific Relief Act in this regard. Shri Shetty invited my attention to Clause 1(a) of Section 14 of the Specific Relief Act. He submitted that this Section should be read alongwith Section 38(2) of the Act. Sri Shetty submitted that perusal of the Agreement on the basis of which the suit has been filed per se reveals that if there is any breach of contract, according to the plaintiff's own case and as per the Agreement relied upon by them, the breach is remediable by compensation in terms of money. He referred to Clause contained in Agreement. It provided that if defendant did not bring deity to the plaintiff's tank for the purpose of "Avabhratha Snana" and 'Kattepooje', the Temple of the defendant will be liable to pay a sum of Rs. 50/- to the maximum extent with interest at 6 1/4% p.a. He submitted that once the parties came to a decision and assessed the compensation for each breach, and the compensation is provided then, under the provisions of the Specific Relief Act particularly in view of provisions of Section 38 Sub-section (2) and Section 38(c) read with Section 41 Clause (c) where the invasion is such that compensation in money would not afford adequate relief, injunction may be granted. He submitted it is well settled principles of law that remedy of injunction should not be granted where there is no likelihood of any irreparable injury and injury likely to be compensated in terms of money. Sri Shetty submitted on this aspect of the matter, the two Courts below did not apply their mind. He submitted as such the Courts below acted illegally in granting temporary injunction without applying their mind to this aspect of the matter. On behalf of respondent, Sri Mohan Rao appearing for the Respondent submitted that firstly the injunction relief being discretionary one and when the Courts below had exercised its discretionary jurisdiction in favour of the plaintiff-opposite party after having found that plaintiffs have got prima-facie case and balance of convenience in their favour, the discretionary order passed by the Courts below should not be interfered with by this Court in exercise of Revisional Jurisdiction.
The learned Counsel Sri Mohan Rao submitted that the Court below while granting temporary injunction order had considered the sentimental hardship to be one of the factors in granting temporary injunction order and have issued temporary injunction order with an intention to maintain the status-quo. He submitted that there is civil right of worship and that civil right has accrued because it is being exercised for more than 50 years. So the learned Counsel submitted the Court did not commit error of law or illegality or error of jurisdiction. He submitted as regard the question that the likely injury is not compensatable in terms of money and is irreparable though the agreement provides for certain amount is to be paid to the plaintiff or plaintiff's predecessor under the Agreement.
4. I have applied my mind to the contentions advanced by the learned Counsel for the parties. That Section 37 of Specific Relief Act provides that temporary injunctions are such as are to continue until a specified time or until the further orders of the Court and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908. It is well settled that in the matter of grant of temporary injunction the basic principles of law governing the grant of injunction under Specific Relief Act, have got a controlling power. It is well settled principle of law that even in the matter of grant of temporary injunction, the applicant himself will have to show that if temporary injunction is not granted, the applicant will be subjected to irreparable loss or injury.
5. That Hon'ble Mr. Justice Desai in the case of H. BEVIS AND COMPANY v. RAM BEHARI, AI R 1951 Allahabad 8, referred to Woodroffe's Law relating to Injunction and quoted the following observations:-
"The power to issue an ex parte injunction no doubt exists but the greatest care should be employed in its exercise, There may be instances where the injury is so great that an exparte injunction is necessary; but the Court should if possible always require notice, however, short, to be given. (2) Such an injunction on the application of one party, and without previously giving to the person to be affected by it the opportunity of contesting the propriety of its issuing, is a deviation from the ordinary course of justice, which nothing, - but the existence of some imminent danger to property if it be not so granted - can justify. A case, therefore of irremediable mischief impending must be made out."
6. The Hon'ble Agarwala J. also dealt with the matter and put the question: was there a likelihood in the present case of an irreparable and irremediable injury resulting from the refusal of the injunction? I think there was this likelihood. As I have observed in the matter of granting temporary injunction, the powers of the Court are controlled by the principles of law and conditions as are provided by the provisions of law as contained in Specific Relief Act.
That as regards relief of temporary injunction, in the case of DELHI MUNICIPALITY v. SURESH CHANDRA, , while dealing with the question of grant of interim or temporary injunction, Their Lordships of the Supreme Court observed: "that it also seems that the attention of the learned Judge was not directed towards Section 41(h) of the Specific Relief Act, 1963 which lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust." Their Lordships further dealing with the matter, observed that: "however, we abstain from deciding the question whether the suit is barred or not on this ground. All we need say is that this consideration also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction,"
7. That being the position of law, it was the duty of the Courts below to have applied their mind to the question whether the compensation in terms of money which had been mentioned in the Agreement or equivalent to that could be adequate compensation and whether if any injury would have been caused, what would be such compensation or what would be adequate relief. This aspect of the matter does not appear to have been considered by the Courts below.
I may quote the observations of the Trial Court. When the attention of the Trial Court was tried to be invited for the purpose of interim injunction, it observed, "therefore under Section 37 of the Specific Relief Act, granting of temporary injunction are regulated by the Code of Civil Procedure. Therefore, for this purpose, Order 39 Rules 1 and 2 has to be looked into. Merely because the defendant has got efficacious remedy that does not mean that even because of the violation of the agreement, he is not entitled for temporary injunction."
8. These observations clearly show that while considering the application for temporary injunction, the Trial Court had acted illegally in not applying its mind to the provisions that are applicable in the matter of temporary injunction under Specific Relief Act. It opined that simply provisions of Order 39 Rules 1 and 2 will govern it and other provisions are immaterial. The Trial Court further has vaguely observed that if temporary injunction is not granted in favour of the plaintiff, he will be put to much hardship because he has got prima-facie case and balance of convenience in his favour. I am surprised at this approach of the Court below. The matter of hardship is a different question. Merely if according to the Trial Court he has made out prima-facie case and balance of convenience, the case is of much hardship, does not stand to any reason. The Court had to consider whether the hardship or injury was of such nature which cannot be remedied or for which compensation does not provide adequate remedy. The Trial Court does not appear to have applied its mind. When I look to the Appellate Court Judgment, I find that same jurisdictional error has been committed by the Lower Appellate Court when it observes: "Whether under the terms of agreement damages constitute adequate remedy or not cannot be decided in interlocutory application. Such dispute has to be decided in the suit because there is serious issue to be tried." These observations will run counter to the basic principles of law laid down by the Lordships of the Supreme Court in the matter of temporary injunction as well. The above quoted observations of the Supreme Court clearly reveals that in the matter of grant of temporary injunction under Order 39 Rules 1 and 2, the considerations that are applicable with regard to permanent injunction have got important role to play as well and the Court is required to apply its mind to these aspects of the matter as well. Here in the present case, the Courts below really appear not to have applied their mind to this aspect of the matter i.e. Whether and if there is likelihood of breach of contract, injury being caused and if the injury likely to be caused to the plaintiff, is irreparable one in the sense it cannot be repaired in terms of money particularly in the context of terms of agreement itself which the Trial Court and Appellate Court had deferred. That Section 38(2) of Specific Relief Act very clearly provides as I quoted above that injunction cannot be granted in cases where obligation arises out of contract. The Court has to be guided by the provisions of Chapter II namely Section 14(1)(a) which provides that no decree for specific performance of contract is to be granted for the non-performance of which compensation in money is an adequate relief. Clause 3(c) of Section 38 further provides decree for injunction can be granted only in case where the invasion is such that compensation in money would not afford adequate relief. These principles also control the exercise of the jurisdiction of the Court in the matter of temporary injunction as well. In my opinion the two Courts below did not apply their mind to this aspect of the matter while disposing of the application granting temporary injunction. Thus considered in my opinion the Judgment and order given and delivered by the Courts below which are impugned in this Revision suffer from jurisdictional error i.e., the Courts below acted illegally in exercise of jurisdiction. Here when the temporary injunction of the mandatory nature has been claimed, whether temporary injunction of mandatory nature could be granted in such a case under Section 37 or under Order 39, particularly when these aspects of the matter have not been considered, I am of the opinion that the Court could not grant such injunction until and unless it records a finding that injury would not be irreparable one and the loss could not be compensated in terms of money. Thus considered in my opinion the Court below without considering these aspects of the matter the Court had no jurisdiction to grant temporary injunction. Thus considered in my opinion the orders impugned are liable to be set aside and the Revision deserves to be allowed. Accordingly the Civil Revision is allowed and orders of temporary injunction passed by Trial Court as well as the appellate order impugned are set aside. Costs of the Revision are made easy.