Thangam vs Jayavarma Textiles Private Limited

D. Murugesan, J.—The Revision Petitioner is the defendant in O.S. No. 209/2002 on the file of Principal District Munsif, Valliyoor. The

respondent filed the said suit for declaration that the plaintiff is the absolute owner of the suit property and for consequential permanent injunction

restraining the defendant from interfering with the plaintiff''s peaceful possession and enjoyment of the suit property.

The parties are referred to as arrayed in the plaint. According to the plaintiff, the suit property, an extent of 1.24 acres on the eastern portion out

of 4.61 acres in S.F. No. 720, Karunkulam village, was purchased by the plaintiff from one Balasubramanian, Shanmugam and Muthuramalingam

through their power agent Gnanathiraviam and Madathaiammal by registered sale deed dated 15.7.2002. On 18.9.2002, the defendant attempted

to prevent the erection work of wind mill by falsely claiming title over the schedule property. Hence, the plaintiff filed the suit for declaration that the

plaintiff is the absolute owner of the suit property and for consequential permanent injunction restraining the defendant, his men, agents etc., from

interfering in any manner with the plaintiff''s peaceful possession and enjoyment of the schedule property. Pending the suit, the plaintiff also filed

I.A. No. 975/2002 for injunction restraining the defendant from interfering with the plaintiff''s peaceful possession and enjoyment of the suit

property.

The defendant filed written statement with the counter claim for declaration of title and for permanent injunction in respect of the property in the

same Survey Number to an extent of 4.61 acres including the extent claimed by the plaintiff. The defendant also filed I.A. No. 1009/2002 for the

relief of injunction.

The learned Principal District Munsif, Valliyoor, by common order dated 14.1.2003 granted injunction in favour of the plaintiff and dismissed

the I.A. No. 1009/2002 filed by the defendant. Questioning the said common order the defendant filed C.M.A. Nos. 4 and 5/2003 before the

Principal Subordinate Judge, Tirunelveli. By common judgment dated 18.8.2003, the Principal Subordinate Judge, Tirunelveli dismissed both the

C.M.As. Aggrieved by the said common judgment, the defendant has filed the above two Civil Revision Petitions.

I have elaborately heard Mr.Sundar, learned counsel appearing for the defendant/Revision Petitioner and Mr. K. Srinivasan, learned counsel

appearing for the plaintiff/respondent.

In view of the rival submissions, the following points arise for consideration:

1) The scope of Order 39 Rule 1 and the principles could be followed byCourts in exercise of the discretionary power while granting the equitable

remedy of injunction? and

2) The scope of Judicial review in exercise of power under Article 227 of the Constitution?

Point No. 1: Order 39 Rule 1 of C.P.C. reads thus:

Cases in which temporary injunction may be granted: Where in any suit it is proved by affidavit or otherwise:-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution

of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to (defrauding) his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in the suit.

The Court may by order grant a temporary injunction to restraining such act, or make such other order for the purpose of staying and preventing

the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the

plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until disposal of the suit or until further orders

Temporary injunction can be granted in any one of the above three contingencies. The plaintiff while filing the suit for declaration and permanent

injunction, for the interim relief of injunction, the plaintiff has prayed for only with the following averments made in para 9 of the affidavit.

While this being the state of affairs, instigated by vested interest on 18.9.2002, the respondent along with her band of rowdy elements attempted

to prevent the erection work of the windmill by falsely claiming title over the schedule property. But however, their such attempt was temporarily

thwarted by the petitioner and other right thinking people of the locality

It appears that temporary injunction was sought on the ground that the defendant attempted to prevent the erection work of the windmill and in

such circumstances, whether the Courts below would be justified in granting of temporary injunction restraining the defendant from preventing the

plaintiff in erecting windmill could fall under Order 39 Rule 1 C.P.C.

While considering the scope of Order 39 Rule 1 C.P.C. and the power of Courts to grant temporary injunction, in Shiv Kumar Chadha and

Others Vs. Municipal Corporation of Delhi and Others, the Supreme Court has held in para 30 as follows:

It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the

intervention of the Court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly

that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the Court and such

discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an

order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary

injunction is, thus, to maintain the status quo. The Court grants such relief according to legal principles, ex debito justitiae. Before any such order is

passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the

suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him

In Dalpat Kumar and Another Vs. Prahlad Singh and Others, the Supreme Court in para 4 has held as follows:

Order 39 Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the

defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may

by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing. or dispossession of

the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit until the disposal of the

suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by Section 86(i)(b) of the

Amending Act 104 of 1976 with effect from February,1, 1977. Earlier thereto there was no express power except the inherent power u/s 151

CPC to grant ad interim injunction against dispossession. Rule 1 primarily concerned with the preservation of the property in dispute till legal rights

are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of

preventive relief to a litigant to prevent future possible injury. In other words, the Court, on exercise of the power of granting ad interim injunction,

is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief.

The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts

before the Court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the Court''s interference is necessary

to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be

established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will

be greater than that would be likely to arise from granting it

Injunction is only a preventive relief to a litigant to prevent future possible injury and it is granted only to preserve the subject matter of the suit

in the status quo for the time being. The grant of injunction is only a discretionary relief. Grant of temporary injunction if amounts to altering the

physical features of the suit property by making developments over the same, shall be outside the scope of Order 39 Rule 1 C.P.C. The

respondent/plaintiff has approached the Court below for grant of temporary injunction only on the ground that the petitioner/defendant is interfering

with his activities of erecting windmill and in my opinion, such injunction cannot be granted. Accordingly, this point is answered.

Point No. 2:Coming to the scope of Judicial review in exercise of the jurisdiction under Article 227 of the Constitution of India, the jurisdiction

under Article 227 being a supervisory, cannot be considered as an appellate jurisdiction. In exercise of such jurisdiction, the High Court cannot re-

appreciate or re-evaluate the evidence. It has has been held by the Supreme Court in Ranjeet Singh Vs. Ravi Prakash, that the jurisdiction under

Article 226 and 227 could be exercised only when there is patent error in the order of the subordinate Courts which does not require

establishment by lengthy and complicated arguments or by long drawn process of reasoning. In that case, the Supreme Court has further held that

if two opinions on the same material are reasonably possible, the finding arrived at one way or the other, cannot be called as a patent error.

In Surya Dev Rai Vs. Ram Chander Rai and Others, it has been held by the Supreme Court that the Amendment Act 46 lf 1999 with effect

from 1.7.2002 in Section 115 of the CPC cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227

of the Constitution.

The Supreme Court has held in in para 22 as follows:

Article 227 of the Constitution confers on every High Court the power of superintendence over all Courts and Tribunals throughout the territories

in relation to which it exercises jurisdiction excepting any Court or tribunal constituted by or under any law relating to the armed forces. Without

prejudice to the generality of such power the High Court has been conferred with certain specific powers by clauses (2) and (3) of Article 227

with which we are not concerned hereat. It is well settled that the power of superintendence so conferred on the High Court is administrative as

well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount

consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles

therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of

superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the

parameters invoking the exercise of power are almost similar.

The power of supervisory jurisdiction conferred on the High Court under Article 227 includes the power to substitute a decision of its own in

the place the decision of subordinate Courts or Tribunal. Such power is exercised to keep the subordinate Courts within the bounds of their

jurisdiction when error is manifest and apparent on the face of the records and grave injustice or gross failure has been occasioned.

The relief of temporary interim injunction was not one for maintaining status quo in respect of the suit property but to make improvements by

erecting wind mills. As already held, such relief would be outside the scope of Order 39 Rule 1 C.P.C. and grant of injunction in my considered

view, an error which is manifest and apparent on the face of the records. By that order if the plaintiff is allowed to make improvements and thereby

change the physical features of the suit property, it will result in grave injustice to the defendant. Further, the balance of convenience is only in

favour of the Revision Petitioner/defendant to maintain status quo as the Revision Petitioner/defendant has also made a counter claim, claiming title

and possession of the very same property. In the circumstances, both the Courts below have manifestly erred in granting injunction. In view of the

above, interim injunction granted by this Court in C.M.P. No. 10417/2004 in C.R.P. No. 1025/2004 dated 24.6.2004 is made absolute and

V.C.M.P. No. 51/2005 is dismissed. Accordingly, C.R.P. No. 1025/2004 is allowed. No costs.

Insofar as C.R.P. No. 1026/2004 is concerned, as the power of this Court under Article 227 of the Constitution of India, cannot be extended

to re-appreciate and reevaluate the evidence, I do not find any error muchless patent error on the concurrent findings of both the Courts below in

negativing the relief of injunction in favour of the Revision Petitioner/defendant. Accordingly, C.R.P. No. 1026/2004 is dismissed. No costs.