Karnataka State Road Transport Corporation vs Omni Visual Media Pvt. Ltd.

Aravind Kumar, J.—This is a defendants appeal challenging the correctness and legality of order dated 30.10.2014 passed by XIII Addl. City Civil and Sessions Judge, Mayohall, Bangalore, whereunder I.A. No. 1 filed by plaintiff under Order 39 Rule 1 and 2 CPC read with Section 151 CPC to restrain the defendant by an order of temporary injunction from dismantling or defacing the hoarding boards or interfering with the maintenance of said hoardings located at "Intermodal Transit Center, Bus Shelter, Bangalore", at Bangalore International Airport Trumpet Centre Change, which is situated within the jurisdiction of Poojenahally Junction, Jala Hobli, Bangalore Rural District, Devanahalli has been allowed.

Heard the arguments of Sri. P.D. Surana, learned counsel appearing for appellants/defendants and Sri. C.K. Nandakumar, learned counsel appearing for respondent/plaintiff. Perused the order in question. By consent of learned Advocates appearing for parties, this appeal is taken up for final disposal.

Facts in brief which has led to filing of this appeal can be crystalised as under and parties are referred to as per rank in the trial Court:

"Plaintiff has instituted a suit for perpetual injunction against defendants seeking an order of restraint against defendants from dismantling or defacing hoardings and boards located at Bangalore International Airport Trumpet Centre Change, situated within the jurisdiction of Poojenahally Junction, Jala Hobli, Bangalore Rural District, Devanahalli, contending inter alia that defendants have executed an agreement in favour of plaintiff on 27.06.2008 permitting the plaintiff to erect and maintain modern high-tech bus shelters landscaping LED video along with several other amenities to the travelers at intermodal transit centre and said contract has been renewed on 21.03.2011 and same being in-force upto 2017, Officials of defendant/Corporation during March'' 2014 abruptly appeared near said hoardings and threatened to dismantle or deface the same and also made threats to plaintiff with regard to maintenance of schedule hoardings and plaintiff had been successfully preventing such illegal acts. It is further contended by plaintiff that defendants are likely to repeat their illegal acts and dismantle or deface the hoardings in question and as such, in aid of main relief, I.A. No. 1 under Order 39 Rule 1 and 2 CPC came to be filed seeking an order of temporary injunction by reiterating the averments made in the plaint."

Defendants on service of suit summons appeared and filed their objections to said interlocutory application denying the averments made therein and contending that plaintiff is guilty of suppression of facts and as such, not entitled for any relief. It is also contended that plaintiff was given licence to erect the advertisement boards in the bus shelters on concessional licence fee and he has been displaying the said advertisements in three bus shelters and in lieu of two other bus shelters which could not be provided to plaintiff, he has put up a hoarding measuring 40 x 40 ft. and has been displaying the advertisement of his customers. It has been contended that licence issued to plaintiff came to an end on 09.02.2014 and as such, said hoardings or the display boards installed by plaintiff vested with defendant/Corporation on expiry of licence and defendant as such has taken steps to allot the advertisement space. It is further contended that plaintiff was given licence to display advertisement at this bus shelters as per agreement executed in that regard, which came to an end after expiry of three years i.e., from 27.07.2008. Since plaintiff continued to display the advertisement despite being aware of expiry of licence period, to regularize the same, he was asked to execute an agreement for further period of 3 years from 10.02.2011 and was also directed to pay licence fee, which also expired on 09.02.2014. Defendants have also contended that since plaintiff had failed to remove the hoardings on expiry of lease period on 09.02.2014 since no fresh agreement has been executed. It is also contended that despite several notices being issued to plaintiff, hoardings had not been removed. On these amongst other grounds, defendants sought for dismissal of the application.

It is the contention of Sri. P.D. Surana, learned counsel appearing for appellants/defendants that plaintiff being very well aware of fact that hoardings are located in Jala Hobli, Poojenahally, which is situated within the jurisdiction of Devanahalli Court, suit in question has been filed in City Civil Court, Bangalore, and no cause of action has arisen within the jurisdiction of City Civil Court, Bangalore and as such, suit in question itself is not maintainable. He would further contend that when plaintiff is entitled for damages, even if any, in the event of plaintiff being able to demonstrate his right and there being no infraction of contractual terms, plaintiff would not be entitled for relief of injunction. He would also contend that no legal right is vested with the plaintiff to seek for enforcement of order of injunction against defendants and when admittedly plaintiff is a licencee, Sections 52, 53 and 54 of the Indian Easements Act, 1882, would be applicable and as such, after completion of period of licence, the possession of licencee even if any being continued would that of a trespasser and as such, appeal is to be allowed by setting aside the order passed by trial Court.

He would further elaborate his submission by contending that non-consideration of these vital aspects, which was canvassed and urged by defendants before the trial Court has not been considered, answered or adjudicated by trial Court and as such, order of trial Court is liable to be set aside.

Per contra, Sri. C.K. Nanadakumar, learned counsel appearing for respondent/plaintiff would submit that City Civil Court, Bangalore, has jurisdiction to entertain the suit, in view of fact that defendants have not filed written statement and examining the plea regarding jurisdiction, at this juncture, in the appellate proceedings, would not arise and as such, he seeks for rejection of said contention. He would also submit that in the present appeal plaintiff had entered a caveat, which was also within the knowledge of defendants and despite same, defendants suppressed this fact when the appeal came up for consideration before this Court and as such, they have obtained an order of stay and same is liable to be vacated by dismissing the appeal.

He would also elaborate his submission by contending that agreement that has been entered between plaintiff and defendants would relate to a contract called as Build, Own, Operate and Transfer (BOOT) of hoardings and as such, it cannot be construed same as a mere agreement of licence. Even otherwise, he would submit that on account of subsequent events that took place namely, on account of five hoardings as agreed to under the contract not being provided by defendants to the plaintiff, said contract by application of doctrine of novatio, has stood substituted by the subsequent terms agreed to between the parties and as such, plaintiff has got a right to enforce the said contract. He would also submit that plaintiff has invested very heavily for putting up those hoardings and as such, without considering the request of plaintiff for renewal of the agreement, it cannot be terminated by the defendants unilaterally and as such, he would support the order passed by the trial Court and contends that provisions of Indian Easements Act, 1882 would be inapplicable to the facts on hand. Hence, he prays for dismissal of the appeal.

Having heard the learned Advocate appearing for parties and on perusal of the order passed by the trial Court and also pleadings, I am of the considered view that following points would arise for my consideration in this appeal:

"(1) Whether order passed by this Court on 06.11.2014 staying the operation of order of the trial Court dated 30.10.2014 in O.S. No. 26396/2014 is liable to be vacated only on the ground that caveator has not been notified?

(2) Whether order of temporary injunction granted by the trial Court is liable to be affirmed, set aside or modified?

(3) What order?"

RE: POINT No. (1)

This Court time and again has held that Section 148A CPC would clearly indicate that when a caveat petition has been filed, it is the duty of the Registry to enter such caveat petition in the order sheet so as to enable the Court to notify the caveator before any order either interim or final is being passed. When caveat petitions are filed, if the same is not notified by the Registry, the situation that has arisen now would be a consequence. In fact, this Court had considered the effect of non-compliance of provision of Section 148A CPC in the case of G.C. Siddalingappa Vs. G.C. Veeranna, and held once a caveat petition is filed under Section 148A CPC, it would become necessary and obligatory on the part of the Court to serve notice on the caveator irrespective of the fact whether caveatee is served with the caveat petition or not. It has been held as under:

"7. Section 148-A has been inserted in the Civil P.C., by the Central Act No. 104 of 1976. The object of inserting this provision in the Code is to afford an opportunity of hearing before passing an interim order, to any person who is going to be affected by the interim order to be passed on an application which is expected to be made or has been made in a suit or proceeding instituted or about to be, instituted in a Court. Therefore any person who claims a right to be heard, before passing an interim order in any suit or a proceeding instituted or about to be instituted in a Court, has been given a right to lodge a caveat in respect thereof, by sub-section (1) of Section 148-A of the Civil P.C. As per subsection (2) thereof, the person who files a caveat is required to serve a notice of the caveat on the person by whom the application has been or is expected to be made under sub-section (1) thereof. The service of notice as contemplated by sub-section (2) thereof, need not take place before or at the time of the filing of a caveat. The language of sub-section (2) does not call for such an interpretation in as much as it provides that the person by whom the caveat is lodged shall serve a notice of the caveat. Therefore, the service of notice of the caveat can take place even after the caveat is filed. What all the caveator is required to do is to produce a postal receipt along with the caveat for having sent the notice of the caveat by registered post with acknowledgment due. The service of notice as contemplated in sub-section (2) is relevant only for the purpose of sub-section (4) thereof which makes it obligatory on the applicant who seeks an interim order to furnish to the caveator a copy of the application and also the copies of any paper or document which the applicant wants to rely upon in support of his application. Thus, when once a caveat is filed under sub-section (1), irrespective of the fact as to whether or not the applicant or an intended applicant is served with the notice of the caveat as per sub-section (2) thereof, as per sub-section (3) thereof, it becomes obligatory on the part of the Court to serve a notice on the caveator of any application filed for an interim order affecting the caveator. The provision regarding service of notice as contained in sub-section (3) is mandatory and noncompliance with it defeats the, very object of introducing Section 148-A. Consequently, it follows that the breach of sub-section (3) vitiates the order passed thereof."

Order sheet of the present appeal would indicate that when the matter was taken up for consideration by this Court on 06.11.2014, caveat petition had not been notified and as such, caveator was not notified. Though Mr. Nanda Kumar, learned Advocate appearing for respondent - plaintiff would contend that defendants were aware of such caveat having been filed, this Court would not embark upon conducting any roving enquiry in this regard since appeal itself is being disposed of on merits and arguments having also been heard in this regard.

Be that as it may. Facts in the present case would indicate that Registry was well aware of the caveat petition having been filed subsequently, it has been notified in the order sheet on 19.11.2014. To ensure that there is no recurrence of such incidents, it would be appropriate to direct the Registrar (Judicial) to enquire into this matter and take suitable and appropriate remedial measures in this regard after bringing this fact to the notice of Hon''ble Chief Justice, to avoid such incidents recurring in future.

This Court would have certainly vacated the order passed on 06.11.2014 on this short ground itself. However, perusal of the said order would clearly indicate that interest of plaintiff has also been taken note of by this Court namely, defendants have been virtually restrained by order of injunction from removing the hoardings as found in photographs 1, 2 and 3 produced along with the memo by learned Advocate appearing for Sri P.D. Surana on 06.11.2014 while staying the operation of order of temporary injunction granted by trial Court. Hence, interest of the plaintiff also having been protected, question of vacating said order would not arise and Sri Nanda Kumar, learned Advocate appearing for respondent - plaintiff has also fairly submitted before this Court that hoardings have not been removed by the defendants. In that view of the matter, question of vacating the said order on the ground of caveator having not been notified would not arise. Accordingly, point No. (1) is answered.

RE: POINT No. (2)

Perusal of the plea advanced in the plaint would indicate that plaintiff has relied on an agreement dated 27.06.2008 wherein plaintiff has been permitted to put up five bus shelters. Plea found in paragraph 2 of the plaint would indicate that said agreement came to be renewed subsequently on 21.03.2011 and it is claimed by plaintiff that it is in force upto 2017. At the same time, plaintiff does not dispute the fact that on account of only three bus shelters having been provided by defendant and in lieu of two remaining shelters defendants had permitted the plaintiff to put up single hoarding of 40'' x 40'' to be displayed on either side and accordingly, in lieu of two bus shelters, plaintiff has put up such a hoarding which is not in dispute. Though learned Advocates appearing for the parties have tried to buttress their respective contentions by relying upon the agreement, I am not inclined to go into the merits of said contentions at this stage since it would suffice for this Court to examine whether three ingredients namely, prima-facie case, balance of convenience and irreparable loss and injury are present to continue the order of temporary injunction granted by trial Court.

Perusal of order of trial Court would indicate that existence of these ingredients necessary for grant of injunction has not been considered in proper perspective by the trial Court. At paragraph 16 of its order, trial Court has jumped to a conclusion stating that there is an agreement between the parties and as such, there is balance of convenience. Issue regarding consideration of balance of convenience cannot be put in straight jacket formula. It depends on facts of each case. Hence, in the instant case, when the facts on hand are examined, it would indicate as already noticed herein above that in lieu of two bus shelters, a hoarding was permitted to be put up and in respect of same, agreement had been entered into by plaintiff with defendant initially in the year 2008 and was undisputedly renewed or continued upto 2011 and thereafter by communication dated 21.03.2011 defendants have notified the plaintiff of the said three years period being extended i.e., up to 09.02.2014. In fact, plaintiff has also referred to said communication in its representation said to have been submitted to the defendants seeking for renewal. Fact which remains is that on 10.02.2014 three years period also has come to an end. Prima-facie , licence agreement and the correspondence between the parties would clearly indicate that plaintiff is a licencee and defendant is a licensor (though this opinion is expressed only for the purpose of examining the prayer made in I.A. No. I) and once period of licence has come to an end, possession of the licencee even if continued, it would become possession of a trespasser, as such, licencee would not be entitled to the equitable relief of temporary injunction.

Yet another factor which requires to be noticed by this Court is that by virtue of licence having come to an end, steps are said to have been taken by the Corporation for allotting said hoarding to third parties. Sri P.D. Surana, learned Advocate appearing for appellant - defendants would hasten to add that it has already been allotted in favour of third party. Thus, claim of plaintiff against defendant even if any would be only to seek damages on establishing the fact that it was not a agreement of licence but otherwise. As such, equitable relief of temporary injunction cannot be granted where plaintiff can otherwise suitably be compensated and thereby plaintiff would not suffer any irreparable loss or injury if order of temporary injunction is not granted in its favour. In the event of temporary injunction granted by the trial Court were to be continued despite there being no prima-facie case and plaintiff not suffering any irreparable loss and injury, the scale of balance of convenience if held in favour of the plaintiff it would amount to perpetrating the illegality for further period. Hence, this Court is of the considered view that balance of convenience also does not lie in favour of the plaintiff. Accordingly, point No. (2) is answered against respondent - plaintiff and in favour of defendant-appellant.

RE: POINT No. (3)

For the reasons stated hereinabove, I proceed to pass the following:

JUDGMENT

"(1) Appeal is hereby allowed.

(2) Order passed by XIII Addl. City Civil and Sessions Judge, Mayohall, Bangalore dated 30.10.2014 on I.A. No. I in O.S.N.O. 26396/2014 is hereby set aside.

(3) I.A. No. I filed by the plaintiff is hereby dismissed.

(4) No costs."