Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Revn. No. 13 of 1971

Advocates

P.K. Duggal and B.B. Vaid
R.K. Gupta

Judges

D.B Lal, J.

Acts

Section 38(1) of the Delhi Rent Control Act, 1958
Order 39, Rules 1 and 2 of the CPC
Order 39, Rules I or 2 of the CPC
Order 43, Rule 1 of that Code.
Order 43. Rule 1(r) of the CPC
Order 40, Rule 1 of the CPC
Order 39, Rule 4 of the CPC
Rules 1 and 2 of Order 39
Rules 1 to 4 of Order 39
Order 43, Rule 1(r) or,(2)
Rule 1(r) of Order 43
Rule 4 of Order 39,
Order 43, Rule 1(r)

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Smart Summary

Structured Summary of the Opinion (Revision under Section 115 CPC)

Factual and Procedural Background

The plaintiff, Shrimati Raj Kumari Suri, filed a suit seeking a prohibitory permanent injunction against the defendant, Shri Prem Lal Dhiman. The plaintiff alleged that the defendant was constructing a house on a plot sold to him but was utilising the main passage beyond the point marked "AB" that led to the plaintiff's building and the court premises (as shown in the plaintiff's site plan). It was further alleged that the defendant was constructing a wall towards the main passage and had opened doors, windows and ventilators in that wall, which he was not entitled to do. The suit sought restraining the defendant from utilising the main passage and from opening the apertures in the wall.

On 3-11-1970 the learned Senior Sub-Judge issued an ad-interim injunction "as prayed for" and directed notice for 28-11-1970. The defendant filed objections under Order 39, Rule 4 of the CPC, which remained undisposed of. The defendant appealed to the District Judge, contending inter alia that several adjournments resulted in the ad-interim injunction being continued for an unnecessary period. By order dated 12-1-1971 the District Judge modified the interim injunction: he maintained the injunction restraining the defendant from using the main passage beyond point "AB" and enjoined that any windows, doors and ventilators opened by the defendant must not touch the main passage nor be utilised by the defendant as a path to the main passage beyond "AB"; subject to these restrictions the District Judge permitted the defendant to open such apertures in his wall.

The plaintiff, aggrieved by the modification made by the District Judge, filed this revision under Section 115 of the Code of Civil Procedure (CPC) seeking reconsideration and interference with the District Judge's order.

Legal Issues Presented

Whether an appeal under Order 43, Rule 1(r) of the CPC is entertainable against an interim (including ex parte) injunction granted under Rules 1 and 2 of Order 39 of the CPC.
Whether the District Judge, in modifying the interim injunction granted by the Senior Sub-Judge, exercised jurisdiction lawfully or whether the modification warranted interference in revision under Section 115 CPC (i.e., whether there was jurisdictional error, failure to exercise jurisdiction, illegal exercise of jurisdiction, or material irregularity).
Whether the conditions for granting an injunction — prima facie case, balance of convenience, and risk of irreparable loss — supported the District Judge's modification permitting apertures subject to specific restrictions.

Arguments of the Parties

Plaintiff (Revision Petitioner) — Contentions

The plaintiff complained of the District Judge's modification of the interim injunction and sought reconsideration of the whole issue by way of revision.
The plaintiff's learned counsel argued that the appeal under Order 43, Rule 1(r) of the CPC was not entertainable before the District Judge because the Senior Sub-Judge had only passed an interim order which could be modified or set aside subsequently; the contention was that Order 43, Rule 1(r) applied to appeals against final orders.

Defendant (Respondent / Appellant to District Judge) — Contentions

The defendant contended (in the lower court) that several adjournments had been granted by the Senior Sub-Judge, resulting in the ad-interim injunction being continued for an unnecessary period.
Before the District Judge and in objections filed later, the defendant asserted that the plaintiff did not possess any house in close vicinity to the wall where the apertures were to be opened.
In objections dated 1-3-1971 the defendant further contended that the construction work was almost complete and only roofing remained, implying that doors, windows and ventilators had already been opened; he also contended that no right of privacy existed which could be infringed by the apertures.
The District Judge observed that, prima facie, the sale-deed did not prohibit opening the apertures in the wall — a factual/legal point relied upon by the defendant and acted upon in the modification.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AIR 1970 All 370 (FB), Zila Parishad Budaun v. Brahama Rishi Sharma	Supports the proposition that alternative remedies may be provided (i.e., availability of more than one remedy against an interim order).	The Court relied on this authority to illustrate that it is not unusual for the law to provide alternative remedies (e.g., apply under Order 39 Rule 4 or directly appeal under Order 43 Rule 1(r)).
AIR 1958 Assam 171, Ram Chandra Dey v. Jhumarmal Jain	Discusses interlocutory appointment of a receiver under Order 40, Rule 1 CPC and whether appeal lies against such interlocutory orders.	The Court distinguished this case: there the court only expressed an opinion that a receiver should be appointed and the final appointment was yet to be made, so the appeal was not maintainable; the present case involved an already-granted interim injunction, so the precedent was held distinguishable.
(1967) 3 Delhi LT 1 : AIR 1967 SC 799, Central Bank of India Ltd. v. Gokal Chand	Holds that appeals are not entertainable against certain interlocutory procedural orders (e.g., summoning witnesses, discovery, inspection, fixing hearing date) despite statutory language suggesting broad appellate rights.	The Court agreed with the principle for procedural interlocutory orders but found the authority inapplicable to the present case because here a complete order granting an interim injunction was passed (not a mere procedural order).
(1968) 70 Pun LR 354, Shankar Singh v. Firm Sudarshan & Co.	Holds that no appeal lay against the trial Judge's refusal to grant a temporary injunction when the refusal was under Section 151 CPC rather than under Order 39, Rules 1 & 2, thus rendering Order 43 inapplicable.	The Court noted this decision but distinguished it: in Shankar Singh the injunction was refused under Section 151 and thus not appealable under Order 43; in the present matter the injunction was granted under Order 39 Rules 1 or 2 and thus appealable under Order 43 Rule 1(r).

Court's Reasoning and Analysis

The Court addressed first the jurisdictional question whether the District Judge could entertain an appeal under Order 43, Rule 1(r) of the CPC against the interim injunction granted by the Senior Sub-Judge. The Court examined the language and object of Rule 1(r) of Order 43 together with the scheme of Rules 1 to 4 of Order 39 and concluded that an appeal lies even against an ex parte or interim order of injunction. The Court explained that a party affected by an interim injunction has two remedies (both drawn from the opinion expressed in the judgment):

He may seek to have the ex parte injunction discharged, varied or set aside under Rule 4 of Order 39 and, if unsuccessful, appeal under Order 43 Rule 1(r); or
He may straightaway file an appeal under Order 43 Rule 1(r) against the injunction order made under Rules 1 and 2 of Order 39.

The Court considered authorities cited by the parties. It distinguished cases where (i) the order was a mere procedural interlocutory order (Central Bank of India Ltd. v. Gokal Chand) and (ii) the order involved only an expression of opinion pending a future final act (Ram Chandra Dey), and (iii) where refusal of injunction was under Section 151 (Shankar Singh). On these bases the Court held those authorities inapplicable to the present factual matrix where an interim injunction had already been granted under Order 39.

Turning to the merits of the District Judge's modification, the Court set out the usual conditions for granting an injunction: (a) prima facie case in favour of the plaintiff, (b) balance of convenience in favour of granting the injunction, and (c) risk of irreparable loss if the injunction is not granted. The Court noted that before the District Judge the defendant urged that the plaintiff did not have a house in close vicinity to the wall and that the construction was almost complete with apertures already opened; the defendant also argued absence of any right of privacy on the plaintiff's part. The District Judge had observed that the sale-deed, prima facie, did not prohibit opening the apertures. Given these circumstances, the Court found it reasonable that, prima facie, the defendant had a case in his favour and that the balance of convenience favoured permitting the openings subject to the restriction that they not touch or be used as a path to the main passage beyond point "AB". The Court held that such a modification prevented irreparable injury to either party pending the suit, since the apertures were allowed subject to the decision in the suit.

The Court also addressed the criticism that the District Judge gave no reasoning. It observed that the District Judge had given a hearing and clearly considered relevant points, including the sale-deed; the District Judge's observations indicated consideration of merits. The Court therefore could not conclude that the District Judge acted without justification, illegally, or with material irregularity.

Holding and Implications

Holding: The revision is dismissed. The Court held that the District Judge had jurisdiction to entertain the appeal under Order 43, Rule 1(r) of the CPC and that there were no grounds to interfere with the District Judge's modification of the interim injunction. The District Judge's order permitting the defendant to open windows, doors and ventilators subject to the restriction that they do not touch or be used as a path to the main passage beyond point "AB" stands.

Implications: The direct effect is that the plaintiff's challenge to the District Judge's modification fails and the District Judge's modified injunction remains effective as described. The opinion does not purport to lay down any new legal principle beyond its application of existing rules: it applies established propositions regarding the availability of alternative remedies against interim injunctions and the principles governing interference in revision (i.e., jurisdictional error, failure or illegal exercise of jurisdiction, or material irregularity). No order as to costs was made. The Court did not indicate that a new precedent was being set; the decision is an application of settled rules to the facts at hand.

Disposition: Revision dismissed.

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Smt. Raj Kumari Suri v. Prem Lal Dhiman .

1. This as an application in revision under Section 115 of the CPC and has been directed against an order D/- 12-1-1971 of the District Judge, Simla whereby he has modified a certain order of injunction issued at interim stage by the Senior Sub-Judge of Simla. The facts leading to the petition are as follows. The plaintiff Shrimati Raj Kumari Suri appeared in Court with the allegations that the defendant Shri Prem Lal Dhiman is constructing a house over a plot of land sold to him by her, but he is also utilising the main passage beyond the point ‘AB’ leading to her own building and the court premises, shown in her site plan and that the defendant should be prohibited from using this main passage. It was further contended, that the defendant is constructing a wall towards the main passage beyond the point ‘AB’ and he has opened doors, windows and ventilators in this wall to which he is not entitled. Accordingly the suit was filed for prohibitory injunction of a permanent nature restraining the defendant from utilising the main passage and from opening the doors, windows and ventilators.

2. Upon the application of the plaintiff on 3-11-1970, the learned Senior Sub-Judge made the following order:—

“Issue notice to the respondents for 28-11-1970. Ad-interim injunctions, as prayed for, till further orders.

Senior Sub-Judge

3-11-70”

3. The defendant filed his objections under Order 39, Rule 4 of the CPC which have remained undisposed of. It was contended on behalf of the defendant that several adjournments were granted by the learned Senior Sub-Judge, with the result that the injunction ad-interim was continued for unnecessary period of time. Accordingly the defendant came in appeal before the learned District Judge who heard the parties and by his order dated 12-1-1971 modified the injunction already granted by the learned Senior Sub-Judge. He maintained the Injunction for not using the main passage beyond the point marked ‘AB’ leading to the main building. He further maintained the injunction by saying that the windows, doors and ventilators which shall be opened by the defendant would not touch the main passage, nor would be utilised by the defendant for any path upto the main passage beyond the point marked ‘AB’. However, he modified the injunction to this extent that subject to these restrictions, the windows, doors and ventilators can be opened by the defendant in his wall towards this side. The plaintiff has the grievance to this modification and she has now come up in revision before this Court and wants reconsideration of the whole issue.

4. It was contended by the learned counsel that the appeal under Order 43. Rule 1(r) of the CPC was not entertainable before the District Judge. The basis for the argument has been, that the learned Senior Sub-Judge had passed only an interim order which could be modified or even set aside subsequently. It is stated that an appeal against a final order could be filed under Order 43. Rule 1(r) of the CPC. I can at once say that this argument of the learned counsel does not seem to carry any weight. The language and the object of the Rule 1(r) of Order 43 and the scheme of Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. As soon as in interim Injunction is issued and the party affected thereby is apprised of it, he has two remedies.

(1) he can either get the ex parte injunction order discharged, varied or set aside under Rule 4 of Order 39, and if unsuccessful, avail the right of appeal as provided for under Order 43, Rule 1(r) or,

(2) straightway file an appeal under Order 43, Rule 1(r) against the injunction order passed under Rules 1 and 2 of Order 39 of the CPC.

5. It is not unusual to provide for alternative remedies. To support this proposition, reliance can be placed on AIR 1970 All 370 (FB), Zila Parishad Budaun v. Brahama Rishi Sharma. The learned counsel referred to AIR 1958 Assam 171, Ram Chandra Dey v. Jhumarmal Jain and pointed out that in a case of appointment of receiver under Order 40, Rule 1 of the CPC which was an interlocutory order, an appeal was not permitted to the higher Court. The facts of that case are distinguishable, inasmuch as, the Court did not make the appointment of receives but only expressed an opinion that a receiver should be appointed and against that interlocutory order the appeal was filed. It was held that the person appealing should have waited for the final appointment which was yet to be made by the Court. In the instant case, the interim injunction was already granted by the learned Senior Sub-Judge and nothing more remained to be done, except hearing the objections of the defendant, if any, against the grant of such injunction.

6. The learned counsel further referred to (1967) 3 Delhi LT 1 : (AIR 1967 SC 799); Central Bank of India Ltd. v. Gokal Chand. In that case again an appeal was filed against interlocutory order of a procedural nature such as the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. I am in respectful agreement with the learned Judges who held in that case that although Section 38(1) of the Delhi Rent Control Act, 1958 prescribed for an appeal against “every order of the Controller made under the Act”, yet no appeal was entertainable.

7. In the instant case no such procedural order has been passed; rather a complete order of granting injunction was passed and that order was to be followed until it was set aside as a result to any objection raised by the defendant. Therefore, this case is also not applicable to the facts and circumstances of the case in hand. The learned counsel then, lastly, relied upon (1968) 70 Pun LR 354, Shankar Singh v. Firm Sudarshan and Co. In this case, it was held that no appeal lay against the order of trial Judge refusing to grant a temporary injunction. However, it was found that the injunction order was not refused under Order 39, Rules 1 and 2 of the CPC but was refused under Section 151 of that Code and hence the appeal was found not entertainable under Order 43, Rule 1 of that Code. The present case is again on a different footing. Here the injunction was granted under Order 39, Rules I or 2 of the CPC and the appeal was entertainable.

8. In this view of the matter, the contention of the learned counsel that the learned District Judge had no jurisdiction to entertain the appeal does not hold good. It is to be precisely understood that this Court would be able to interfere in revision only if the petitioner succeeds in showing that the subordinate Court exercised the jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity. After hearing all that could be stated on the subject by the learned counsel, I cannot help concluding that in this case the conditions for interfered in revision are not fulfilled. Regarding jurisdiction, I have already stated above that the learned District Judge had the jurisdiction to entertain the appeal and make the modification in the injunction order. Much less to say, the relief of injunction is always granted to protect the plaintiff from any injury which he is likely to suffer before the suit is decided. The oft repeated conditions for granting injunction: prima facie case in favour of the plaintiff, balance of convenience in favour of granting the injunction, and irreparable loss which he is likely to suffer if the injunction is not granted. In his grounds of appeal, the defendant urged before the learned District Judge that the plaintiff does not possess any house in close vicinity to the wall in which these apertures are to be opened.

9. In his objections dated 1-3-1971 against the interim stay granted by this Court after the revision was filed, the defendant further contended that the construction work was almost complete and that only roofing has remained to be given to such construction, meaning thereby that doors, windows and ventilators have already been opened in the disputed wall. It is also stated that no right of privacy exists which could be infringed against the plaintiff. The learned District Judge has already specified that in the sale-deed, prima facie, there is no prohibition for the opening of these apertures in the wall. With these circumstances which are available, it is quite reasonable to hold that the defendant had a prima facie case in his favour and that the balance of convenience also enjoined that the doors, windows and ventilators are permitted to be opened inside the wall so long as these are not utilised for a path to the main passage for any out let towards it. That has already been injuncted by the learned District Judge. There is no question of the defendant suffering an irreparable loss because these apertures would be opened subject to the decision in the suit.

10. It was stated that the learned District Judge did not give any reasoning for giving his decision. He had given a hearing to the parties and it is expected that all the relevant points must have been placed before him. The observation of the learned District Judge that the sale-deed did not contain an embargo for the opening of the apertures, indicates that he did consider merits of the case. It is difficult to say that the grant of injunction to the extent of certain particulars should have necessarily influenced the Court to have granted it in totality. Therefore, whatever part of injunction the learned District Judge modified he did so on justifiable grounds. In this view of the matter, I do not find any reasons whatsoever to interfere with the order of the learned District Judge. The petition has no force and is dismissed. However, no order is made as to costs.

11. Revision dismissed.

Smt. Raj Kumari Suri v. Prem Lal Dhiman .

Structured Summary of the Opinion (Revision under Section 115 CPC)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff (Revision Petitioner) — Contentions

Defendant (Respondent / Appellant to District Judge) — Contentions

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Smt. Raj Kumari Suri v. Prem Lal Dhiman .

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