2007 Supreme(AP) 1145

IN THE HIGH COURT OF JUDCATURE,
ANDHRA PRADESH AT HYDERABAD
BILAL NAZKI, ACJ AND RAMESH RANGANATHAN, J.
Municipal Corporation of Hyderabad, Hyderabad - Appellant
Versus
Philomena Education Foundation of India, Hyderabad - Respondent
Appeal no. : CRP Nos.2553 and 2554 of 2006
Decided on: 15, November, 2007

Headnote:(A) Hyderabad Municipal Corporation Act 1955, Section 437- Civil Procedure Code 1908- Order 39 Rules 1 and 2- Municipal Corporation of Hyderabad Building Bylaws 1981; Zoning Regulations 1981;- Grant of Ad-interim injunction restraining Municipal Corporation from exercising their statutory duties of preventing illegal and unauthorized constructions- Construction was in violation of provisions of the Act, Bye-laws and regulations- Failure of trial Court to take into consideration evidence on record has bearing on question regarding applicability of deeming provision in Section 437- Impugned findings perverse- Only order which could have been passed was status quo order and not temporary injunction-Question of deeming provision was a serious issue and could have been examined after trial in suit and not in interlocutory proceedings - Revision allowed. [Paras 36, 38, 39]

       (B) Hyderabad Municipal Corporation Act 1955- Section 437- Rejection of application for building permission raising objections- Writ petition filed by applicants questioning action of Corporation as arbitrary and illegal, disposed of merely directing Corporation to consider representation of petitioner and pass orders- Non consideration of a subsequent representation would not attract ingredients of Section 437 when order of rejection continued to remain in force. [Para 19]

       (C) Hyderabad Municipal Corporation Act 1955- Sections- 428, 433, 435, 440 and 450 -Ad interim injunction granted restraining Municipal Corporation from interfering with - Reconstruction of fallen area without obtaining permission -Neither did the petitioner specify nor did trial Court choose to enquire what was the nature and extent of the fallen area which the petitioner intended to reconstruct or to examine the nature of alterations proposed to be carried out by them and whether the proposed reconstruction of the so called fallen area was, indeed, in accordance with the plan sanctioned- In any event, such reconstruction/alteration would require permission under the Act. [Para 49]

       (D) Civil Procedure Code, 1908- Order 39, Rules 2 and 2- Injunction -Court, in exercise of power of granting ad interim injunction, is to preserve subject-matter of suit in the status quo for the time being. Discretion of Court is exercised to grant a temporary injunction only when there is : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiffs rights; (ii) when need for protection of plaintiffs rights is compared with need for protection of defendants rights, or likely infringement of defendants rights, balance of convenience is tilting in favour of plaintiff; and (iii) clear possibility or irreparable injury being caused to plaintiff if temporary injunction is not granted. Existence of a prima facie right, and infraction of the enjoyment of the right, is a condition precedent for grant of temporary injunction. Temporary injunction being an equitable relief, discretion to grant such relief will be exercised only when plaintiffs conduct is free from blame and he approaches Court with clean hands. [Para 57]

       (1992) 1 SCC 719, 1995 (5) SCC 545, (2002) 5 SCC 760, 2006 (5) SCC 282; 2006 (5) ALD 1 (SC)-Relied.

       (E) Civil Procedure Code 1908- Order 39 Rules 1 and 2- Temporary injunction-No injunction can be granted to violate law or to prevent statutory authorities from discharging their statutory functions- While the Court should always extend its helping hand to protect a citizen who is wronged, it must also ensure that judicial proceedings are not used/misused to protect or to perpetuate a wrong committed by the person who approaches Court. [Paras 62-64]

       (1993) 3 SCC 161- Relied.

       (F) Civil Procedure Code, 1908- Order 39, Rules 1 and 2 - A party is not entitled to an order of injunction as a matter of right or of course. Grant of injunction is within discretion of Court. Since relief of ad-interim injunction is wholly equitable in nature, party invoking jurisdiction of Court has to show that he was not at fault, that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. No person can be permitted to violate law on the plea that, not permitting them to do so, would affect their pride and prestige. Mere fact that they are in possession and enjoyment of suit schedule land would not confer on petitioner the right to construct/reconstruct buildings in violation of the applicable statutory provisions. [Para 66, 67]

       (G) Civil Procedure Code `1908- Order 39 Rules 1 and 2- Grant of interim order- restraining Municipal Corporation from exercising their statutory duties of preventing illegal and unauthorized constructions- Such order, confers no right upon a party, nor does it automatically amount to extension of statutory protection- An interim order passed by Court does not confer any right upon a party and is always subject to the final result of proceedings in Court and at the risk and cost of party obtaining interim order. Grant of an interim order does not automatically amount to extension of statutory protection. [Para 69]

       (2002) 1 SCC 319- Relied.

       (H) Hyderabad Municipal Corporation Act 1955, Sections- 450, 452 and 636- Act, Bye-laws and Regulations ensure orderly development of the city in larger public interest. Subordinate Courts must maintain constant vigil and ensure that they are not used as a tool by unscrupulous builders to violate these laws with impunity Gist of guidelines for Court below :-

       H-1 Ex parte ad-interim injunction order should not, ordinarily, be passed- factors which should weigh with the Court in the grant of an ex parte injunction are (a) whether irreparable or serious mischief will ensue to plaintiff; (b) whether refusal of ex parte injunction would involve greater injustice than grant of it would involve; (c) Court will also consider time at which plaintiff first had notice of the act complained so that making of an improper order against a party in his absence is prevented; (d) Court will consider whether plaintiff had acquiesced for sometime and in such circumstances it will not grant an ex parte injunction; (e) Court would expect a party applying for ex parte injunction to show utmost good faith in making application; (f) even if granted, ex parte injunction should only be for a limited period of time; (g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by Court.

       H-2 Order of ad-interim injunction is passed to maintain status quo regarding suit schedule property only when the tests for grant of such an order are satisfied, petitioner has approached Court with clean hands and has made a true and complete disclosure of all relevant facts.

       H-3 While an interlocutory order of status quo/injunction restraining municipal authorities from demolishing the building may be justified, an order of injunction enabling them to proceed with construction should, except under special circumstances and for reasons to be recorded in writing, be avoided.

       H-4 Courts should exercise a great degree of care and caution and ensure that relevant facts are pleaded, and are supported by evidence, before an order of ad-interim injunction, permitting construction/reconstruction of a building is passed.

       H-5 Burden lies heavily on the person seeking an order of ad-interim injunction to prima facie establish his legal right for such an order and to have complied with all statutory provisions applicable for construction/reconstruction of buildings.

       H-6 No injunction can be passed by a Court permitting a person to violate the law. Court should apprise itself of relevant statutory provisions and not be swayed entirely by the self-serving pleas and evidence adduced by the person seeking its intervention.

       H-7 Court has duty to call for required information from either party to satisfy itself that all statutory provisions for construction/reconstruction of buildings have been complied with.

       H-8 Even in those exceptional cases, where grant of an ad-interim injunction, enabling construction /reconstruction /alteration of a building, may be necessary, adequate safeguards must be provided in the order itself to ensure that applicable statutory provisions are not violated in the process of construction/ reconstruction/ alteration of buildings.

       H-9 Order of Court should not disable municipal authorities from monitoring and ensuring that construction of such buildings is in accordance with statutory provisions prescribed in the Act, bye-laws and regulations.

       H-10 Orders passed for extraneous considerations may invite disciplinary action against judicial officers concerned. [Para 72]

       (I) Administration of Justice - A high degree of care and caution should be exercised in passing judicial orders more so when it affects larger public interest. Justice must not only be done but must also be seen to have been done. [Para 74]

       (J) Constitution of India Article 227- Civil Procedure Code 1908, Section 115 (as amended by Amended Act 46 of 1999)- Revision petition against interlocutory order- Maintainability- An interim order which does not finally decide the lis, cannot be challenged by way of a revision under Section 115 CPC. However, in case where remedy of filing a revision before Court, under Section 115 CPC, is expressly barred a petition under Article 227 would lie. Interlocutory order, passed by Courts subordinate to High Court, against which remedy of revision has been excluded by the CPC Amendment Act 46 of 1999, are open to challenge in, and continue to be subject to, supervisory jurisdiction of High Court, against which remedy of revision has been excluded by the CPC Amendment Act 46 of 1999. [Para 8]

        (2003) 6 SCC 659; 2003(4) ALD 1 (SC); (2005) 5 SCC 527; 2005 (3) ALD 40 (SC); (2003) 3 SCC 524; 2003 (3) ALD 63(SC); (2003) 6 SCC 675; 2003(5) ALD 36 (SC); (2004) 6 SCC 71; (2003) 6 SCC 641; 2003 (2) ALD (Cri) 109 (SC)- Relied.

       (K) Constitution of India-Article 227- It is not permissible for High Court, under Article 227 to review or reweigh evidence upon which inferior Court has passed order. In cases where there is no error apparent on face of record, such jurisdiction would not be exercised. Where two views are possible, and trial Court has taken one view which is a possible and plausible view, merely because another view is attractive, High Court would not exercise its supervisory jurisdiction. High Court cannot assume appellate powers, and unlimited prerogative to correct all species of hardship or wrong decisions. Interference must be restricted to cases where grave injustice would occur unless High Court intervenes. [Para 11]

       (L) Constitution of India - Article 227- Purview-Finding of fact can also be set aside-Failure to record necessary findings to support its order would also be a jurisdictional error liable to correction. Interference is also justified where important evidence has been overlooked and the legal provisions involved are misinterpreted or misapplied. High court may intervene where refusal to do so would result in travesty of justice. [Paras 13, 14]