1980 Supreme(MP) 637

IN THE HIGH COURT OF MADHYA PRADESH
U.N. BHACHAWAT, J.
Tahir Ali - Applicant
Vs.
Cantonment Board, Mhow - Respondents
C. Revn. No. 127 of 1979 (I)
Decided On : 30-01-1980

Headnote:Civil Procedure Code, 1908 – O. 39, R. 1 and 2 – purpose of injunction – is a preventive relief granted to litigant quistist – principles governing grant of injunction – interim injunction when may be granted.

        Short Note

       1. The plaintiff has filed the present suit for permanent injunction restraining the defendant Cantonment Board from demolishing the suit construction in house bearing No. 68 built up over survey No. 231 at Montieth road in Mhow town. The contention of the plaintiff is that the plaintiff had only affected certain minor repairs such as plastering of the walls repairs etc. and either re – erected or erected the suit construction violation of section 178 or 179 of the Cantonment Act, 1924 (hereinafter referred to as 'the Act'), the defendant Cantonment Board is unauthorisedly and illegally taking action for demolishing the suit construction treating it to be an erection or re – erection of a building which needed a prior sanction of the defendant under section 178 – A of the Act, and that the plaintiff did not obtain the requisite sanction. The defendant has resisted the suit inter alia on the ground that the plaintiff has unauthorisedly done the construction as detailed in its overseer's report dated 18 – 4 – 1974 without the prior sanction of the Board under section 178A, therefore, the Board vide its resolution dated 30 – 4 – 1974 had resolved to take action against the plaintiff under sections 185, 256 and 268 of the Act; accordingly a notice dated 4 – 5 – 1974 under section 185 of the Act detailing the suit construction and requiring the plaintiff to demolish the same was issued to the plaintiff. The plaintiff had filed an appeal against this notice under section 185, under section 274, which was dismissed as barred by time; consequently the order of the defendant Board for demolition of the suit construction attained finality; still when the plaintiff did not demolish the suit construction as per the direction in notice under section 185 of the Act, another notice No. 6169 dated 21 – 9 – 1974 under section 256 was issued to the plaintiff and it is in continuation of this notice that the defendant Board is proceeding to demolish the suit construction; that the plaintiff has after an inordinate delay malafidely suppressing all these material facts filed the present suit on false and bogus ground that he had carried on only minor repairs. The defendant has also contended that on the dismissal of plaintiff's appeal under section 274 of the Act in view of section 278 of the Act finality is attached to it and a civil suit to challenge defendant Board's action is not maintainable.

       2. Along with the suit an application for ad – interim injunction was also filed by the plaintiff, which has been dismissed.

       Held : Injunction is a preventive relief granted to a litigant quia tiest. The predominant purpose is to preserve the subject – matter of the suit in status quo.

       3. It is a trite law that the principles which govern the exercise of the discretion conferred on Court under Order 39, rules 1 and 2 for grant of temporary injunction are that the applicant seeking temporary injunction must satisfy the Court: –

       (i) That there is a prima facie case.

       (ii) That to protect him from irreparable injury Court's injunction is necessary;

       (iii) The balance of convenience lies in the issuance of the temporary injunction.

       4. For the purpose of prima facie case the real thing to be seen is only that plaintiff's claim is not frivolous or vexatious and that there is a serious question to be tried. It is not that the plaintiff is required to make out a clear legal title, he is only required to satisfy the Court that he has a fair question to raise as to the legal right claimed by him in the suit. At that stage it is not the function of the Court to resolve the disputed questions of fact or difficult question of law; they are to be left to be decided at the conclusion of the trial.

       5. In the instant case the two Courts below have found that the Civil Court has no jurisdiction to entertain the suit and predominated by this finding refused the applied injunction. The lower appellate Court has for this purpose relied on a decision in Cantonment Board, Kamtee v. Barjorejee Dada Bhoy Zal, AIR 1955 Nagpur 81 and held that the Civil Court has no jurisdiction to entertain the suit. The lower appellate Court though correctly stated the legal position for judging the prima facie case, while considering that misdirected itself in going into such a detail of merits as if the matter was being decided on merits. As already stated this is not the stage to have gone into such details on the question of merit.

       6. In the light of the arguments advanced by the learned counsels for the parties the main question that arise for determination in this case are: (i) whether the plaintiff carried on only minor repairs as alleged by him, and no previous sanction of the defendant Board was necessary for carrying on those constructions, (ii) whether the constructions carried on by the plaintiff were as detailed in the defendant's Overseer's report dated 18 – 4 – 1974, and the previous sanction of the defendant Board was imperative, (iii) whether the previous sanction of the defendant Board is imperative either it may relate to repairs or any other minor or major construction, (iv) whether once the defendant Board has resolved that the suit construction are unauthorised and liable to be demolished and an appeal against that under the Act has been dismissed may it be as barred by limitation, it has attained finality under section 278 of the Act and cannot be questioned in Civil Court and (v) whether on account of the non – disclosure about the failure of appeal the receipt of notice under section 256 of the Act and delay in the filing of the suit thereof the suit is malafide and entails dismissal.

       7. The above questions are all serious questions which in the light of the arguments advanced need interpretation of sections 2 (iv), 178 – A, 179 and 278 of the Act.

       8. According to the plaintiff, section 179 of the Act exhausts the list of the nature of the construction for which prior permission of the defendant Board is needed and he allegedly carried on repairs only in the old existing prior permission was not necessary and as such, the defendant Board's action for demolishing the suit construction is without jurisdiction. Whereas the contention of the learned counsel for the defendant Board is that section 179 only extends the definition of building given in section 2 (iv) for the purpose of section 178 – A therefore even for repairs previous sanction would be necessary and at any rate the defendant Board has on affidavit deposed in detail the suit construction, which need to be demolished and the plaintiff did not file a counter affidavit, which leads one to infer that plaintiff carried on these constructions and a prior permission for them was necessary. He also argued that section 278 attached a finality to the action of the defendant Board and once a finality has been attached, the jurisdiction of the Civil Court is ousted.

       9. Thus jurisdictional question do arise in this case involving not only interpretation of the fore – quoted action but of fact also. In the light of the question involved, it cannot be said that the case of the plaintiff is frivolous and/or vexatious. The Nagpur decision referred to hereinabove the sections enumerated by me hereinabove were not interpretated and at this stage it would be premature to say either way whether that decision applies to the present case or not. This itself is a question to be considered at the time of the final decision.

       10. In view of the fact that the matter is pending in the Court as yet, I am refraining from expressing any opinion on merits either way, but it can certainly be said that there are serious questions to be tried in the case, and as such there is a prima facie case.

       11. If the plaintiff were to succeed at the trial in establishing his right to a permanent injunction and in the enjoined in between the time of the application and the time of the trial, if the suit construction is demolished the plaintiff would suffer an injury which cannot be compensated. The cost of reconstruction of the suit accommodation can be ascertained and paid, but the loss of utility of the construction cannot be measured in terms of money.

       12. The suit itself is for a perpetual injunction, the refusal of the ad – interim injunction, would defeat the object of the suit, as on the demolition the suit construction would become infructuous.

       13. It is also relevant to point out that it has been indicated either in the reply opposing the application for ad – interim injunction or during the course of argument that the suit construction is harmful for the people of the locality or for the people of the town, for sanitary point of view or is otherwise a nuisance. So far as the facts stand at present the grievance of the defendant is of demolition of the suit construction. In such a situation the comparatively more substantial mischief is likely to be done to the applicant if the ad – interim injunction is refused, than is likely to be caused to the other side if the injunction is granted.

       14. Looking to the nature of the suit it is necessary to maintain the statusquo. In view of the dispute according to the plaintiff, suit construction is an old existing construction, he did not erect or re – erect, he only carried on minor repairs, whereas according to the defendant, plaintiff has raised it, is essential that during the course of trial the suit construction must stand, so the age of the disputed construction can be determined. In absence of the construction this controversy between the parties cannot the correctly determined.

       15. In the light of the foregoing discussion I am of the view that the Courts’ interference is necessary to protect the plaintiff from the irreparable injury and that comparative mischief which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it.

       16. In the light of the above discussion it is borne out that all the three requirements referred to in paragraph of this order are satisfied, and it is a fit case for grant of ad – interim injunction. The two Courts below did not make a correct approach to the case in the application of the aforesaid three principles for exercise of its discretion and proceeded to decide the case as the suit being decided on merits. Revision allowed.