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PETITIONER: MAHADEO SAVLARAM SHELKE & ORS.

       Vs.

RESPONDENT: THE PUNA MUNICIPAL CORPN. & ANR.

DATE OF JUDGMENT23/01/1995

BENCH: (K.RAMASWAMY & N. VENKATACHALA)

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.   This  appeal by special leave arises from the order  of the  Single  Judge of the High Court of  Bombay  in  Special Civil  Application No.2521 of 1978, dated December 20,  1978 wherein the learned Single Judge set aside the order of  the Joint  Judge, Poona, dated 29.8.1973 made in  Misc.   Appeal No.92  of  1973.  The facts necessary for disposal  of  this appeal lie in a short compass. 2.   The  Poona Municipality has undertaken widening of  the road to remove traffic congestion and initiated  proceedings under s.4(1) of the Land Acquisition Act, 1894 for acquiring two storied building belonging to N.H. Naik at Kotwal Chowk. The  Notification under s.4(1) was published in the  Gazette in  December 1966. The Land Acquisition Officer  passed  his award on December 14, 1970.  Thereafter the compensation was deposited   and  paid  to  the  owner.    Pursuant   thereto possession  was  taken on March 13, 1971  by  the  competent officer  and handed over to the corporation.   However,  the earlier  24  appellants/tenants who entered into  leave  and licence agreements with the Corporation were allowed to  get into  possession.  After the expiry of the period  of  leave and licence, proceedings were initiated for eviction of  the appellants  and an order in that behalf came to  be  passed. Calling  in  question that order of eviction, they  went  in appeal and writ petition but were unsuccessful.  Ultimately, this Court affirmed the order of eviction of the appellants. Subsequently,  they filed Civil Suit No.590/73 in the  Court of  the  Joint  Civil  Judge,  Poona  and  sought  perpetual injunction from dispossession and for ad interim injunction. The  Civil  Judge by his order dated  27.4.1973  refused  to grant  ad  interim injunction.  The Joint Judge,  as  stated earlier,  on appeal under s.43(r) C.P.C. allowed the  appeal and  granted ad interim injunction pending disposal  of  the suit.  The High Court in the Special Civil Application under Art.227  of  the Constitution, by its impugned  order  dated 20.12.1978 set aside the appellate order and confirmed  that of  the Civil Judge.  Thus this appeal, by special leave. 3.   Shri  Rajinder Sachher, the learned Senior counsel  for the  appellants contended that under s. 115 CPC, High  Court has  power of revision where the appeal is not provided  for

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either  to it or subordinate court.  Since the  Joint  Judge had  exercised  the appellate power, by operation  of  s.  1 15(2), the High Court was devoid of jurisdiction to exercise the  revisional power.  When statutory prohibition  was  im- posed  by  CPC  which is more  expeditious  and  efficacious remedy,  the  exercise of’ jurisdiction by  the  High  Court under  Art.226  was not warranted.  At this juncture  it  is necessary  to  point out that the High Court  exercised  its power under Art.227 and not either under Art.226 or under s. 115  CPC.   Even  otherwise the bar under s.  115(2)  is  to exercise  revisional power where the party is provided  with right  of appeal to the High Court or the Subordinate  Court against  the impugned order.  It is not a bar   to  exercise revisional power under s. 115(1) 507 against  appellate  order.   The ratio in  Aundal  Ammal  v. Sadasivan  Pillai,  1987  (1) SCR 485,  is  that  no  second revision under s.   1  15(1)  would lie  against  revisional order of  the Subordinate Court. 4.   He  further contended that the exercise of power  under Art.226 is only discretionary; the appellate Judge has  gone into  the questions of fact and law; the exercise  of  power under  Art.226  is not an appellate power but  only  one  of correcting  errors  of jurisdiction.   Appellate  Judge  ex- haustively   dealt  with  all  the  points  raised  by   the appellants,  it is one of taking an alternative view by  the High  Court  to the one taken by the appellate  Judge.   The High   Court  in  that  situation  was  not   justified   in interfering  with  the  order of  the  appellate  Judge,  in particular,  when scope of the revisional power tinder s.  1 15 CPC itself is very rigid.  Even in equity the  appellants are  entitled to remain in possession since they  have  been continuing under the respondents since 1971  uninterruptedly and they should be allowed to continue till the disposal  of the  suit  by  giving suitable  directions  for  expeditious trial.   He also contended that in view of  the  resolutions passed by the Municipal Corporation on November 11, 1972 and November  29, 1972, suitable direction may be given  to  the Municipality  to reconsider the matter whether the  building is  still  needed for widening the road and  based  thereon, they could take appropriate steps or to provide  alternative shops. 5.   Shri Wad, the learned Senior counsel appearing for  the respondents,  on the other hand contended that the need  for widening  the road still subsists and that  the  Corporation having  taken  possession of the building and the  order  of eviction passed against the appellant having been allowed to become  final  by disposing the S.L.P. by  this  Court,  the appellate  Judge  had  committed palpable error  of  law  in interfering  with  the order.  He also  contended  that  the Civil Suit itself is not maintainable as being barred by the provisions in the Corporation Act and C.P.C. 6.   Having  heard the learned counsel for the parties,  the question  arises whether the appellant had shown that  there was  a  prima  facie case, triable  issue  and  balance   of convenience  for granting ad interim injunction pending  the suit.   It is an admitted position that after the award  was made  by the Collector, possession was  taken.   Thereafter, the  appellants  entered  into leave and  licence  with  the Corporation.    On  expiry  thereof,  the  Corporation   had initiated  proceedings for ejectment of the  appellants  and the  order  of ejectment had become final when the  SLP  was dismissed by this court.  Thereafter, the appellants had  no legal  right  to  remain in possession of  the  shops.   The question then is, whether an injunction could be granted  in

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favour  of  the  persons who remain  in  possession  of  the property.   After the order of ejectment had  become  final, their continuance will be only unlawful possession and  that therefore  strong  prima  facie case need to  be  made  out. Further question is, whether an injunction could be  granted against  the  rightful owner in favour of  the  persons  Who remain in unlawful possession.  The appellate Court has  not gone into the pertinent aspects of the matter.  The  founda- tion  for action is based on the subsequent  reservation  of the Corporation. 0 7.   In Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993)3 SCC 161, a Bench of three Judges of this Court 508 held that "a party is not entitled to an order of injunction as  a matter of 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  the legal principles - ex  debito  justifiae. 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.   Further the court should be always willing to  extend its  hand  to protect a citizen who is being wronged  or  is being deprived of a property without any authority in law or ,without  following the procedure which are fundamental  and vital  in  nature.   But  at  the  same  time  the  judicial proceedings  cannot  be used to protect or to  perpetuate  a wrong committed by a person who approaches the court. 8.  In  Dalpat Kumar v. Prahlad Singh, (1992)1  SCC  719,  a Bench of two Judges (in which K. Ramaswamy, J. was a Member) of  this  Court held that the phrases  "prima  facie  case", "balance  of  convenience" and "irreparable  loss"  arc  not rhetoric  phrases  for incantation but words  of  width  and elasticity, intended to meet myriad situations presented  by men’s ingenuity in given facts and circumstances and  should always be hedged with sound exercise of judicial  discretion to meet the ends of justice.  The court would be circumspect before  granting the injunction and look to the  conduct  of the party, the  probable injury to either party and  whether the plaintiff could be adequately compensated if  injunction is  refused.   The  existence  of  prima  facie  right   and infraction of the enjoyment of his property or the right  is a  condition for the grant of temporary  injunction.   Prima facie  case  is not to be confused with  prima  facie  title which has to be established on evidence at the trial.   Only prima  facie  case is a substantial  question  raised,  bona fide,  which needs investigation and a decision  on  merits. Satisfaction  that there is a prima facie case by itself  is not  sufficient to grant injunction.  The court further  has to satisfy that noninterference by the court would result in "irreparable  injury " to the party seeking relief and  that there  is no other remedy available to the party except  one to  grant  injunction  and  he  needs  protection  from  the consequences   of  apprehended  injury   or   dispossession. Irreparable  injury, however, does not mean that there  must be no physical possibility of repairing the injury but means only that the injury must be a material one, namely one that

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cannot  be  adequately compensated by way of  damages.   The balance  of  convenience  must  be  in  favour  of  granting injunction.  The  court while granting or refusing to  grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare  it  with that which is likely to be caused  to  the other  side  if the injunction is granted.  If  on  weighing competing  possibilities or probabilities of  likelihood  of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an in- 509 junction  would  be issued.  The court has to  exercise  its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit." 9.It  is  settled law that no injunction  could  be  granted against  the  true  owner  at the  instance  of  persons  in unlawful  possession.It is true that the  appellants  placed reliance  in  their  plaint on  resolutions  passed  by  the Municipality. on 11.11. 72 and 29.11.72. A reading of  those resolutions would prima facie show that possession would  be taken  where the acquisition proceedings have  become  final and land acquisition proceedings would not be pursued  where award  has not been made as on the date of the  resolutions. In this case, since the acquisition proceedings have  become final,  then necessarily possession has to be taken  by  the Corporation for the public purpose for which the acquisition was  made.  In that context the question arises whether  the appellants  can  seek  reliance on  two  resolutions.   They furnish  no prima facie right or title to the appellants  to have  perpetual injunction restraining the Corporation  from taking  possession of the building.  The orders of  eviction were  passed  by due process of law and  had  become  final. Thereafter no right was created in favour of the  appellants to  remain in possession.  Their possession is unlawful  and that therefore, they cannot seek any injunction against  the rightful  owner  for evicting them.  There is  thus  neither balance  of  convenience  nor irreparable  injury  would  be caused to the appellants. 10.  In  Woodroffe’s "Law Relating  to  Injunctions,  Second revised  and  enlarged  edition, 1992, at page  56  in  para 30.01, it is stated that "an injunction will only be granted to  prevent  the  breach of an obligation (that  is  a  duty enforceable by, law)existing in favour of the applicant  who must  have a personal interest in the matter.  In the  first place,  therefore, an interference by injunction is  founded on the existence of a legal right, an applicant must be able to  show  a fair prima facie case in support  of  the  title which he asserts".  At page 80 in para 33.02, it is  further stated  that  "if the court be of opinion  that  looking  to these principles the case is not one for which an injunction is a fitting remedy, it has a discretion to grant damages in lieu  of  an  injunction.   The  grounds  upon  which   this discretion to grant damages in lieu ’of an injunction should be  exercised,  have been subject of discussion  in  several reported Indian cases".  At page 83, it is stated that  "the court  has  jurisdiction  to grant an  injunction  in  those cases.where pecuniary compensation would not afford adequate relief, The expression "adequate relief" is not defined, but it is probably used to mean - such a compensation as  would, though not in specie, in effect place the plaintiffs in  the same position in which they stood before.  The determination of  the question whether relief by injunction or by  damages shall  be  granted depends upon the  circumstances  of  each case.

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11.In "Law of Injunctions" by L.C. Goyle, at page 64, it  is stated  that "an application for temporary injunction is  in the  nature  of  a  quia  timet  action.   Plaintiff   must, therefore,  prove  that  there is an imminent  danger  of  a substantial kind or that the apprehended injury, if it  does come,  will be irreparable.  The word "imminent" is used  in the  sense that the circumstances are such that  the  remedy sought  is not premature.  The degree of probability of  fu- ture injury is not an absolute standard: what 510 is  aimed at is justice between. the parties, having  regard to all the relevant circumstances".  At page 116, it is also stated  that  "in  a  suit  for  a  perpetual  or  mandatory injunction,  in  addition to, or in  substitution  for,  the plaintiff  can  claim damages.  The court  will  award  such damages  if it thinks fit to do so.  But no relief for  dam- ages will be granted, if the plaintiff has not claimed  such relief in the suit". 12.  In  "Modem Law Review", Vol 44, 1981 Edition,  at  page 214, R.A. Buckley stated that "a plaintiff may still be  de- prived of an injunction in such a case on general  equitable principles  under which factors such as the public  interest may, in an appropriate case, be relevant.  It is of interest to  note,  in this connection, that it has not  always  been regarded as altogether beyond doubt whether a plaintiff  who does thus fail to substantiate a claim for equitable  relief could be awarded damages". in "The Law Quarterly Review" Vol 109,  at  page 432 (at p.446), A.A.S.Zuckerman  under  Title "Mareva Injunctions and Security for Judgment in a Framework of Interlocutory Remedies" stated that "if the plaintiff  is likely  to  suffer irreparable or uncompensable  damage,  no interlocutory  injunction  will be granted,  then,  provided that the plaintiff would be able to compensate the defendant for  any  unwarranted  restraint on  the  defendant’s  right pending   trial,  the  balance  would  tilt  in  favour   of restraining  the defendant pending trial.  Where both  sides are exposed to irreparable injury pending trial, the  courts have  to strike a just balance".  At page 447, it is  stated that   the   court  considering  an   application   for   an interlocutory  injunction  has  four  factors  to  consider: first,  whether the plaintiff would suffer irreparable  harm if  the  injunction is denied; secondly, whether  this  harm outweighs  any  irreparable harm that  the  defendant  would suffer  from an injunction; thirdly, the  parties’  relative prospects  of  success on the merits; fourthly,  any  public interest involved in the decision.  The central objective of interlocutory  injunctions  should  therefore  be  seen   as reducing  the  risk that rights will be  irreparably  harmed during the inevitable delay of litigation". 13.  In  "Injunctions" by David Bean, 1st Edn., at page  22, it   is   stated  -that  "if  the   plaintiff   obtains   an interlocutory  injuntion, but subsequently the case goes  to trial  and  he  fails  to  obtain  a  perpetual  order,  the defendant  will meanwhile have been restrained unjustly  and will  be entitled to damages for any loss he has  sustained. The  practice has therefore grown up, in almost  every  case where  an  interlocutory  injunction is to  be  granted,  of requiring  the  plaintiff to undertake to  pay  any  damages subsequently  found due to the defendant as compensation  if the   injunction   cannot  be  justified  at   trial.    The undertaking may be required of the plaintiff in  appropriate cases in that behalf".  In "Joyce on Injunctions Vol.  1  in paragraph  177  at  page 293, it is  stated  "Upon  a  final judgment  dissolving an injunction, a right of  action  upon the injunction bond immediately follows, unless the judgment

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is  superseded.   A right to damages on dissolution  of  the injunction  would arise at the determination of the suit  at law". 14.  It  would  thus be clear that in a suit  for  perpetual injunction,  the court would enquire on  affidavit  evidence and  other material placed before the court to  find  strong prima  facie  case and balance of convenience in  favour  of granting injunction otherwise irreparable damage or damage 511 would  ensue  to the plaintiff The Court  should  also  find whether  the  plaintiff would adequately be  compensated  by damages  if  injunction  is  not  granted.   It  is   common experience that injunction normally is asked for and granted to  prevent  the public authorities or  the  respondents  to proceed  with execution of or implementing scheme of  public utility  or granted contracts for execution  thereof  Public interest  is,  therefore, one of the material  and  relevant considerations in either exercising or refusing to grant  ad interim   injunction.    While  exercising  the   power   of discretion,  the  court should also adopt the  procedure  of calling   upon  the  plaintiff  to  file  a  bond   to   the satisfaction  of the court that in the event of his  failing in the suit to obtain the relief asked for in the plaint, he would  adequately compensate the defendant for the loss  en- sued due to the order of injunction granted in favour of the plaintiff.   Even otherwise the court while  exercising  its equity  jurisdiction in granting injunction as  also  juris- diction and power to grant adequate compensation to mitigate the  damages caused to the defendant by grant of  injunction restraining  to proceed with the execution of the work  etc. which  is  retrained by an order of injunction made  by  the court.   The pecuniary award of damages is consequential  to the  adjudication of the dispute and the result  therein  is incidental  to the determination of the case by  the  court. The  pecuniary jurisdiction of the court of  first  instance should  not  impede nor a bar to award  damages  beyond  its pecuniary  jurisdiction.  In this behalf, the grant  or  re- fusal  of damages is not founded upon the original cause  of action but the consequences of the adjudication by the  con- duct of the parties, the court gets inherent jurisdiction in doing ex debito justifiae mitigating the damage suffered  by the defendant by the act of the court in granting injunction restraining  the defendant from proceeding with  the  action complained  of  in the suit.  It is  common  knowledge  that injunction is invariable sought for in laying the suit in  a court of lowest pecuniary jurisdiction even when the  claims are much larger than the pecuniary jurisdiction of the court of  first instance, may be, for diverse reasons,  Therefore, the  pecuniary jurisdiction is not and should not stand  -an impediment  for the court of first instance  in  determining damages as the part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for  damages.  This procedure would act as a check on  abuse of  the process of the court and adequately  compensate  the damages or injury suffered by the defendant by act of  court at the behest of the plaintiff. 15.  Public  purpose  of  removing  traffic  congestion  was sought  to be served by acquiring the building for  widening the road.  By orders of injunction, for 24 years the  public purpose,  was  delayed.  As a consequence execution  of  the project  has been delayed and the costs now  stand  mounted. The  courts in the cases where injunction arc to be  granted should  necessarily  consider the effect on  public  purpose thereof and also suitably mould the relief In the event  the plaintiffs   losing   ultimately  the  suit,   they   should

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necessarily bear the consequences. namely, escalation of the cost  or the damages the Corporation suffered on account  of injunction  issued by the courts.  Appellate court  had  not adverted  to  any  of the material aspects  of  the  matter. Therefore, the High Court has rightly, though for  different reasons,  dissolved  the  order of  ad  interim  injunction. Under these circumstances, in the event of the suit to 512 be  dismissed while disposing of the suit the trialcourt  is directed  to  assess  the  damages and  pass  a  decree  for recovering the same at pro rata against the appellants. 16.  The appeal is accordingly dismissed with     costs.