IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Special Leave Petition © Nos. 11964-11965 of 2009

ECE Industries Limited                           … Appellant

VERSUS

S. P. Real Estate Developers  P. Ltd. & Anr. .... Respondents  

O  R  D  E  R

1. The instant Special Leave Petitions arise from an  

Appellate  Order  of  the  High  Court  of  Andhra  

Pradesh at Hyderabad, by which the High Court  

had affirmed the order  of  the Second Additional  

City Civil Judge at Hyderabad refusing to grant an  

order of injunction till the disposal of the suit which  

has  been  filed  by  the  plaintiff-appellant  for  

declaration and injunction.  

2. In the aforesaid suit, two applications for injunction  

under Order 39 Rule 1 and 2 of the Code of Civil  

Procedure  were  filed  by  the  plaintiff-appellant.  

The  relief  that  was  prayed  for  in  one  of  the  

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applications  for  injunction  was  to  restrain  the  

respondents  from  alienating  the  suit  property  

including the structures coming up thereon and the  

other  for  injunction  over  the  suit  property  from  

changing the  nature  thereof  pending disposal  of  

the suit.   

3. While deciding the said applications for injunction,  

an Advocate Commissioner was appointed by the  

trial  Court  to  find  out  the  extent  of  construction  

raised by the defendants-respondents in the suit  

property in view of the fact that there was a denial  

on the part of the plaintiff-appellant that there was  

no construction at all.   

4. The Advocate Commissioner appointed by the trial  

Court  submitted  his  report,  which  is  already  on  

record.   While  deciding  the  applications  for  

injunction,  the  said  report  was  taken  into  

consideration  by the  trial  Court  and  as  per  that  

report and also as per the photographs produced  

by the Advocate Commissioner, the trial Court was  

prima facie of the view that construction work was  

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undertaken and completed which had required the  

respondents to invest crores of rupees.  The trial  

Court,  considering  this  fact  that  substantial  

construction  has  already  been  completed,  had  

refused to grant an order of injunction in favour of  

the  plaintiff-appellant  from  making  any  

construction in the suit property and, accordingly,  

the applications for  injunction were rejected with  

the following conditions :-

“1) That the respondents shall deposit the balance  value of  the  property,  which  comes to  around Rs.  28,00,000/- into Court within one month.   2) That  it  shall  furnish  bank  guarantee  for  the  value  of  the  unrealized  post  dated  cheques,  and  pay/deposit  the value of four cheques, which were  dishonoured, within one month from today. 3i) That  the respondents shall  not  claim equities  over the construction made in the land and they are  bound by the decision in the suit.  The Respondents  shall furnish the particulars of the prospective buyers   of the residential units in advance to the Competent  Authority/Urban Land Ceiling, and it must be made  clear to the prospective buyers that their purchases  are  subject  to  the  result  of  the  suit  by  making  a  ‘specific  recital’  in  the  agreement  of  sale  or  sale  deed, as the case may be.”

5. Aggrieved  by  the  order  of  the  trial  Court,  the  

appeals were preferred before the High Court of  

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Andhra  Pradesh  at  Hyderabad,  which  by  the  

impugned order, had affirmed the order of the trial  

Court  on the question of  construction in the suit  

property, but set aside the conditions imposed by  

the trial being Clauses Nos. 1 and 2 of the order of  

the trial Court.  It is these concurrent orders, which  

are  now  under  challenge  before  us  in  these  

Special Leave Petitions.    

6. Before  us,  both  the  learned  senior  counsel  

appearing for the parties had drawn our attention  

to the report of the Advocate Commissioner.  Mr.  

Nariman, learned senior counsel appearing for the  

plaintiff-appellant, sought to argue after taking us  

to the report  of  the Advocate Commissioner that  

no construction has been made in the suit property  

whereas  Dr.  Singhvi,  learned  senior  counsel  

appearing  on  behalf  of  the  defendants-

respondents,  after  taking  us  to  some  of  the  

portions  of  the  Advocate  Commissioner’s  report  

and also by producing recent photographs to show  

substantial  constructions already made in the suit  

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property, sought to argue that the Appellate Court  

was fully justified in affirming the order of the trial  

court  holding  that  substantial  construction  has  

been  made  in  the  suit  property  for  which  the  

respondents have invested huge sum of money.   

7. After hearing the learned counsel  for  the parties  

and  after  going  through  the  Commissioner’s  

report, we are of the prima facie view that before  

deciding  this  Special  Leave  Petition  finally  on  

merits, it would be proper in order to do complete  

justice  to  find  out  the  actual  position  of  the  suit  

property i.e. :-

i) Whether constructions have been made on  

the different blocks of the suit property and  

how many blocks are still remaining vacant ?

ii) If constructions have been made, what is the  

nature and extent of such constructions ?

iii) Whether such constructions can be said to  

be substantial constructions or not ;

iv) Whether constructions have been completed  

in some blocks of the suit property and the  

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flats constructed in such blocks are ready for  

use and occupation ;

v) Also to see the local features.   

8. To find  out  the  aforesaid,  we appoint  Shri  Ram  

Krishna Prasad, a learned Advocate of this Court,  

who  will  visit  the  suit  property  in  course  of  this  

week by giving prior notice to both the sides and  

submit a report on the above-mentioned items by  

next Monday i.e. on 27th of July, 2009. The matter  

will  be placed again for consideration of the said  

report on 28th of July, 2009.  We make it clear that  

there will be no further hearing in the matter.   

9. The  entire  expenses  of  the  learned  Advocate  

Commissioner  for  visiting  the  site  and  coming  

back to Delhi, shall be met by the respondents and  

the remuneration of the Commissioner shall  also  

be borne by the respondents, which is assessed at  

Rs.30,000/-, to be paid in course of this Friday i.e.  

24th of July, 2009.        

………………………….J

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[  TARUN CHATTERJEE ]

NEW DELHI                                             ……………………………J. JULY 23, 2009                                   [ R. M. LODHA ]

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