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2005 Supreme(SC) 1214
2005(6) Supreme 385
Supreme Court of India
(From Madhya Pradesh High Court)
G.P. Mathur and Balasubramanyan, JJ.
Col. Anil Kak (Retd.) —Appellant
versus
Municipal Corporation, Indore & Ors. —Respondents
Civil Appeal No. 5807 of 2005
(@ Special Leave Petition (Civil) No. 11940 of 2003)
With
Special Leave Petition (Civil) No. 11771 of 2003
Decided on 19-9-2005
Counsel for the Parties :
For the Appellant : Salman Khurshid, Sr. Advocate, Imtiaz Ahmed, Mrs. Naghma Imtiaz Marusagar Samantaray, Ghan Shyam and Devendra Singh, Advocates.
For the Respondents : R.F. Nariman, Sr. Advocate, A.K. Sethi, Ms. Ramni Tanjea, G. Balu, Nishant Gupta, Ms. Vani Mehta, Rajiv Nanda, Sakesh Kumar, Rohit Singh and D.K. Sinha, Advocates
Important point
No illegality in the view taken by High Court when it permitted revision u/s 115 CPC to be converted as proceedings under Article 227 of Constitution of India holding that revision against order passed in appeal in a proceeding under Order 39 Rules 1 and 2 CPC was not maintainable, order being interlocutory in nature.
Headnote:(i) Civil Procedure Code, 1908—Section 115—Revision against order passed in appeal arising from a proceedings under Order 39 Rules 1 and 2—High Court taking a view that order impugned being interlocutory could not be challenged in revision permitted petitioner to convert same as proceeding under Article 227 of Constitution of India—No illegality in the course adopted by High Court. (Para 2)
(ii) Civil Procedure Code, 1908—Order 39 Rules 1 and 2—Suit for injunction to restrain defendant—Respondent from interfering with possession of suit land and not to demolish or any step for removal of construction—Trial Court granted interim injunction confining it to an area of 16000 sq. ft. and construction thereon and also restrained plaintiff from putting up any construction outside it but included in plaint schedule—District Judge in appeal made injunction operative in respect of entire plaint schedule property and structure thereon—High Court restored order of trial Court — Appeal — Schedule property including disputed portion was an educational institution and was functioning—Number of litigations between parties including a suit for specific performance of an agreement to lease filed by appellant in respect of area out side 16000 sq. ft.—Supreme Court in appeal had directed status quo vide order dated 12.7.2003 it would be interest of justice to maintain that order and direct expeditious disposal of suit. (Paras 5 and 6)
Judgment
P.K. Balasubramanyan, J.—These two petitions arise from the claim for an interim injunction by the petitioner before us in a suit filed by him. The suit was for a permanent injunction restraining the respondents, the defendants in the suit, from interfering with the possession of the suit land allegedly held by the petitioner including the school buildings constructed thereon and not to demolish or take any steps for removal of the constructions. An interim injunction along the same lines to enure during the suit was sought. That application was opposed. Respondent No. 3, in turn sought an injunction restraining the petitioner-plaintiff from putting up any construction outside an area of 16,000/- Sq. ft. The trial court granted an interim junction in favour of the petitioner but confined it to an area of 16,000 Sq.ft. and the construction thereon and also restrained him from putting up any construction outside it but included in the plaint schedule. The petitioner appealed against those orders and the Additional District Judge allowed the appeals and modifying the order of injunction granted by the trial court, made the injunction operative in respect of the entire plaint schedule property and the structures thereon. The respondents originally filed a revision invoking Section 115 of the Code of Civil Procedure (for short ‘the Code’) before the High Court challenging the order of the first appellate court. In view of a decision rendered by that High Court that no revision under Section 115 of the Code could be entertained against an order of injunction since the order was purely interlocutory in nature, the respondents herein sought a conversion of their revision into a petition under Article 227 of the Constitution of India. This prayer was allowed by the High Court which decided to treat the proceedings as one under Article 227 of the Constitution of India. It is challenging that order that the petitioner before us has filed Special Petition (C) No. 11771 of 2003. Proceeding on the merits thereafter, the High Court modified the order of the first appellate court and restored the order of the trial court and thereby confined the interim order of injunction to an area of 16,000 Sq. ft. and the structures thereon. Feeling aggrieved by this modification, the petitioner before us - the plaintiff in the suit, has filed SLP (C) No. 11940 of 2003. Since both matters arise from the same proceedings, they are taken up together for final disposal.
SLP (C) No. 11771 of 2003
2. All that the High Court has done is to treat the petition filed before it under Section 115 of the Code as a proceeding initiated under Article 227 of the Constitution of India. The respondents had filed the revision originally and during the pendency of that revision the High Court appears to have taken a view that an order in an appeal arising from a proceeding under Order 39 Rules 1 and 2 of the Code, could not be challenged under Section 115 of the Code since the order was in the nature of an interlocutory order. In such a situation, in our view, the High Court rightly decided to permit the revision petitioners before it, to convert the same as a proceeding under Article 227 of the Constitution of India. After all, the court could have done it on its own, even without a motion in that behalf by the petitioner. We see absolutely no ground to interfere with the said order on the grounds raised in this special leave petition. Hence, this special leave petition is dismissed.
SLP (C) No. 11940 of 2003
Leave granted.
3. In this appeal, the appellant - plaintiff who had filed a suit, inter alia, for a permanent injunction restraining the defendants in the suit from interfering with his possession of the plaint schedule property and the structures thereon allegedly put up by him, challenges the order of the High Court by which that court set aside the order of the first appellate court and restored the limited order of interim injunction granted by the trial court.
