Madras High Court
Syeda Zehera Jabeen vs S. Padmanabhan And Anr. on 29 November, 1988
Equivalent citations: (1988)2MLJ423
ORDER K.M. Natarajan, J.
1. This revision is directed by the second defendant against the exparte order of ad-interim injunction passed by the IV Assistant City Civil Judge, Mad. in I.A.No. 17289 of 1988. The respondents-plaintiffs filed the suit O.S.No. 9891 of 1988 against the revision-petitioner and the Corporation of Madras, for a declaration that the construction already put up by the revision-petitioner herein is illegal and for a consequential relief of permanent injunction restraining the revision-petitioner from doing further construction and also for a mandatory injunction directing him to demolish the construction already put up and also to direct the Corporation of Madras to take action against the revision-petitioner. The plaintiffs prayed for ad-interim injunction in I.A.No. 17289 of 1988 restraining the revision-petitioner, who is the second defendant and his men from putting up any construction over and above the existing construction over the schedule mentioned property pending disposal of the suit. In that petition, the IV Assistant City Civil Judge passed an order as follows:
Head Perused the documents. I am satisfied that the petitioner is entitled to ad-interim injunction as the balance of convenience is in his favour. I therefore order ad-interim injunction and notice by 18-11-1988.
Aggrieved by the said order, this revision is filed on 15-11-1988 and an exparte order of interim suspension was obtained on 17-11-1988.
2. The main contention raised by the learned Counsel for the revision-petitioner, Mr. S. Balasubramanian, is that the respondents-plaintiffs have already filed a suit against the revision-petitioner in O.S.No. 6396 of 1988 for a declaration that they are entitled to the easementary right of light and air through the window of their property and also prayed for an injunction restraining the revision-petitioner from putting up any construction over his property so as to block the window of the plaintiffs' property. While the suit was pending, they filed another suit O.S.No. 6514 of 1988 on the file of the City Civil Court against the revision-petitioner for a declaration that they are entitled to have the prescriptive easementary right to receive light and air through the ventilator and also prayed for a permanent injunction restraining the revision-petitioner from putting up any construction so as to close the ventilator. Interim injunction was granted in I.A.No. 10969 of 1988 and the said application was resisted by the revision-petitioner. After hearing both the parties, the 9th Assistant Judge, City Civil Court, dismissed the application. The respondents herein were unsuccessful in C.M.A.No. 196 of 1988 on the file of this Court, filed against the said order. According to the learned Counsel for the revision-petitioner, the respondents herein having failed in those proceedings, have come forward with the present suit by adding the Corporation of Madras as the first defendant and they arc now fighting for the public cause. Further, if there is any violation of the sanctioned plan, it cannot be said that the entire construction is to be demolished and that is open to the revision-petitioner to convince the Corporation authorities to modify the earlier order and the sanctioned plan under Section 256(3) of the Madras City Municipal Corporation Act. According to him, the respondents are entitled to any order of injunction and that the observation of the lower court that the balance of convenience lies in favour of the respondents herein is not correct. It is further stated that the suit as well as the application for injunction are barred by the principle of res judicata and that the lower court has not followed the guidelines laid down by this Court in the matter of granting injunction.
3. On the other hand, the learned Counsel for the respondents submitted that the revision-petitioner was served with the order of injunction on 11-11-1988 and that he could have filed a counter and moved the trial court to vacate the order of injunction if he has got any case. Instead of doing so, he has straightaway filed the revision-petition and obtained an order of suspension on 17-11-1988. According to the learned Counsel, the C.R.P. itself is not maintainable. The rememdy of the petitioner is only to move the court which passed the interim order either to set aside or modify or rescind the said order under Order 39, Rule 4, C.P.C. on other hand, the learned Counsel for the revision-petitioner submitted that since this is not a first suit, but this is the fourth suit in series, the resort to Order 39, Rule 4, C.P.C. need not be done but can approach this Court. Let us consider the decisions relied on by both the parties in regard to the maintainability of the revision.
4. In Abdul Shukoor v. Umachander (1976) 1 M.L.J.315 : (1976) 89 L.W.330 : A.I.R. 1976 Mad. 350 a Division Bench of this Court held that "no appeal will lie against an ex parte ad interim injunction but the specific remedy available in Order 39, Rule 4, C.P.C. has to be availed of by the interdicted party so that a final reasoned order could be obtained in the trial court itself against which the Code has provided an obvious appeal under Order 43, Rule 1(r), C.P.C.". that was a case referred to the Division Bench on the question whether an appeal or a revision is maintainable against the exparte order, when there is an alternative remedy of vacating it is available by filing an application before the same court, in view of the conflicting decisions. Notice was given to the Advocates' Association, the Bar Association and the Women Lawyers' Association, and the Division Bench elaborately considered all the aspects and rendered the above decision. The said decision was also followed in a later decision by Ratnavel Pandian, J., (as he then was) who was also a party to the above quoted Division Bench decision, in Ramalingam Naicker v. Chennakrishna konar 96 L.W.62, wherein it was held:
Admittedly in the present case, the party has not moved the trial Court, availing Rule 4 of Order 39. Therefore, the order against which the revision is now sought to be filed, is not a final reasoned order within the expression of the judgment in Abdul Shukoor's case A.I.R. 1976 Mad.350. The explanation given by the party for not moving the trial courts there was no Presiding Officer in the District Munsif's Court at the relevant time for him to get a final order by filing a petition under Order 39, Rule 4, C.P.C.
...Notwithstanding the above position, as under Section 115(2) the High Court is debarred from varying or reversing any decree or order against which an appeal lies either to the High Court or to any Court subordinate to it, this Court cannot interfere with the impugned order in question by entertaining a revision.
Yet, another later decision brought to the notice of this Court is Spl. Tahsildar No. III L.A. Lignite Project v. Rangaswamy Reddiar 1988 (1) M.L.J.317 where a Division Bench held:
We are very much concerned to note a disturbing tendency that is fast developing now-a-days. In the recent past, we have come across several matters in which appeals are filed against ad interim ex pane order without resorting to the normal course of approaching the court which passed such orders and seeking appropriate further orders in spite of the law having been clearly laid down by a Division Bench of this Court in Abdul Shukoor v. Umachander (1976) 89 L.W.330 : A.I.R. 1976 Mad.350. No doubt, that case arose out of an order emanating from a subordinate court. The ratio of the decision will apply with more force to an order passed by a learned single Judge of this Court. Moreover the ad interim orders are not judgments within the meaning of Clause 15 of the Letters Patent.
The ratio laid down in the above decision clearly shows that no revision is maintainable and the remedy is only to move the court which passed the order, under Order 39, Rule 4, C.P.C. to vacate the same.
5. On the other hand, the learned Counsel for the revision-petitioner relied on the decision in Sundaram Pillai S. v. P. Govindaswami (1985) T.L.N.J. 32 : (1985) 2 Com. L.J.286 : 97 L.W. 630 and submitted that in the said case the court interfered with the ex parte order of injunction granted by the lower court. On going through the said judgment, I find that the said judgment is not helpful to the case of the revision-petitioner, as in the above quoted case the learned Chief Justice M.N. Chandurkar accepted the principle laid down in Abdul Shukoor's case (1976) 1 M.L.J.315, referred to above that no appeal lies against the order of interim injunction. But, the learned Chief justice observed:
But, to accept the contention of the plaintiff in the present case that the defendants should first appear before the trial court and move the trial court for setting aside the injunction, would really have the effect of permitting the plaintiff to have the benefit of an order which is patently erroneous, and to say the least, perverse and has been obtained by suppressing material facts. In any case, the High Court, in the exercise of its revisional jurisdiction under Section 115 of C.P.C., cannot allow an order which amounts to an abuse of the powers vested in the trial court to stand once such an order comes to the notice of the High Court.
That was a case where the relief prayed in the very suit was granted by way of ad-interim mandatory injunction and also suffered very many infirmities which have been set out elaborately in the judgment. The learned Chief Justice has observed:
A mandatory injunction is granted only in rare cases and normally a mandatory injunction is granted, if at all, only to restore the status que and not to establish a new state of things differing from the state which existed at the date when the suit was instituted.
In the peculiar circumstances of the above case, the learned Chief Justice felt that interference is called for in the said order under Section 115, C.P.C. That decision is not helpful to the case of the revision-petitioner herein.
6. Another decision relief on by the learned Counsel for the revision petitioner is The Rajapalayam Industrial & Commercial Syndicate v. A. Vairaprakasam (1988) 2 M.L.J.155 : (1988) 2 L.W. 179. That decision is also not helpful to the case of the revision-petitioner, as even in that case the learned Judge (Srinivasan, J.), who was also a party to the decision in Spl.Tahsildar No. III, L.S. Lignite Project v. Ramaswamy Reddiar (1988) 1 M.L.J. 317 has observed:
It is, no doubt, an ad-interim ex-parte order and a revision petition is not ordinarily maintainable in this Court. Normally, this Court does not entertain a revision petition against an ad interim injunction, when the Court below has passed the same and has ordered notice to the other side. The normal course open to the opposite party in such a case is to approach the same court for vacating the injunction order or passing appropriate order as laid down by a Division Bench of this Court in Abdul Shukoor Sahib v. Umachander and Ors. 89 L.W.330 : A.I.R. 1976 Mad.350.
But, the learned judge found in that case that the impugned order was passed without recording any reason and without giving any notice to the opposite party and by virtue of the said order, the working of the company was paralysed as the convening of the general body meeting was also restrained and the operation of the bank account was restrained and the defendants were restrained from functioning an Directors. However, in the above quoted case also, the learned Judge dismissed the revision on the ground that the defendants had filed an application to vacate the Interim order before the said Judge and final orders were also passed.
7. As far as the instant case is concerned, it is the contention of the learned Counsel for the revision-petitioner that there were already prior proceedings in which the respondents-plaintiffs were unsuccessful and that they filed the present suit and obtained an exparte order of injunction, and as such, the revision-petitioner is entitled to file this petition before this Court instead of moving the lower court to vacate the interim order. I do not find and merit in the said contention. It is open to the petitioner to move the court which passed the order, to vacate the order, by bringing to the notice of the court of the prior proceedings and all orders passed in his favour and as against the plaintiffs and to invite a decision of that court. There is absolutely nothing to hold that the impugned order is either perverse or has been obtained by suppressing material facts as was the case in Sundaram Pillai S. v. P. Govindaswami 97 L.W. 630 so as to warrant this Court to exercise the revisional jurisdiction of this Court under Section 115, C.P.C. On the other hand, the ratic laid down in the Division Bence decision in Abdul Shukoor v. Umachander A.I.R. 1976 Mad. 350 which has been followed in Spl. Tahsildar No. III, L.A. Lignite Project v. Rengaswamy Reddiar (1988) 1 M.L.J. 317 is clearly applicable to the facts of this case, where an ex pane order was obtained restraining the revision-petitioner from putting up further construction in violation of the sanctioned plan. It is open to the revision-petitioner to convince the court which passed the above interim order that the construction is not in any way contrary to the sanctioned plan or that the respondents-plaintiffs have not made out any case for grant of interim injunction to restrain him from proceeding with further construction. In the instant case, only the plaintiff has sought for maintaining the status que not to do any positive act. Since this Court has taken a view that the remedy of the petitioner is only to move the court which passed the ex parte ad interim injunction, this Court does not wish to express any opinion on the merits of the case of the respective parties. It is open to them to put forth their contentions before the lower court. But suffice if the lower court is directed to dispose of the petition without further delay and within the time specified by this Court. In this connection, it is worthwhile to quote the observations made by the learned Judge in the Division bench decision Abdul Shukoor v. Umachander A.I.R. 1976 Mad. 350 that in the matter of disposal of injunction applications, the subordinate courts are not following the provisions of the Code of Civil Procedure and disposing the same according to the provisions.
The Bench observed as follows:
Before leaving this matter, we would like to make some practical suggestions. We have already accepted a portion of the report of the Civil Justice Committee. Even in 1926, it was desired that such ad interim injunction should not stand, unless affirmed or dissolved, for more than a week. It is, therefore, desirable that the trial Courts, which pass such orders should not give more than a week's time to enable the other side to appear and if the other side files an application under Order 39, Rule 4, C.P.C. to vacate or modify the same, such applications also have to be heard within two weeks thereafter. The entire matter should be settled within a month. Otherwise, the litigants would be frustrated and the hope that the poor litigant has in a court of law will become a dupe. We, therefore, suggest that in all such situations, the Courts which are guided by expediency and avoidance of delay should dispose of such applications at least within 30 days from the date when they issue such ad interim injunction orders.
It is to be noted that even under Order 39, Rule 3-A, C.P.C. it has been clearly provided that where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to Finally dispose of the application within thirty days from the date on which the injunction was granted and where it is unable so to do, it shall record its reasons for such inability. It is unfortunate that the subordinate judiciary is not adhering the said provision as well as the direction given by the Division Bench in the above quoted case.
8. Lastly I wish to point out that I had also an occasion to consider the maintainability of revision against interim order, in Susila Bai Ammal v. Sethuraman (1988) 1 M.L.J. 443. In that case besides the decision in Abdul Shukoor v. Umachandar (1976) 1 M.L.J. 315 : A.I.R. 1976 Mad.350 (D.B). I relied on the decision of the Supreme Court in Baldevdan v. Pilmiatan Ltd. and the decision in Ramdas v. Subhan Bakshi and held that only in cases where the rights or obligations of the parties in controversy were adjudicated by the Court, the question of revision against that order arises under Section 115 Code of Civil Procedure and not otherwise. An ex parte ad interim injunction granted cannot be said to be a case which has been decided by the subordinate court which warrants interference by High Court under Section 115, C.P.C. On that ground also, the revision is not maintainable.
9. In view of the discussion already made, this revision fails and stands dismissed. However, the lower court is directed to dispose of the injunction application. I.A.No. 17289 of 1988 positively within two weeks from the date of receipt of this order. In the meantime the parties are directed to maintain the status quo, and co-operate with the lower court in the matter of disposal of the injunction application. In the circumstances of the case, there will be no order as to costs.