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S.C. Shukla (Dr.) v. Delhi Development Authority

Delhi High Court

Apr 1, 1998

Judgment

CaseIQ

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Factual and Procedural Background

This order disposes two interlocutory applications: IA 4013/95 filed by the plaintiffs under Order XXXIX, Rules 1 and 2 read with Section 151, CPC seeking an ad interim ex parte injunction; and IA 7894/95 filed by defendant No. 2 under Order XXXIX, Rule 4 read with Section 151, CPC seeking discharge/variation/setting aside of the ex parte order dated 9th May 1995 passed in IA 4013/95.

The plaintiffs instituted a suit for permanent injunction seeking to restrain the defendants from using a specific plot of land measuring 4000 sq. m (0.66 hectare as described) in Ashok Vihar, Phase IV, SFS Flats, Delhi, for any purpose other than a children's park. The plaintiffs allege that the plot was earmarked and formally approved as a children's park (they refer to an alleged 1989 approval by the then Lt. Governor) and that any allotment to defendant No. 2 for a school (DAV Public School) would be illegal and cause irreparable injury.

The plaintiffs previously filed Suit No. 1891/91 in which a compromise with Mohan Memorial Education Society is said to have been effected, and material on record includes a DDA written statement which (according to plaintiffs' pleading) acknowledged retention of 4,000 sq. m as a children's park. On 9th May 1995 an ex parte interim order was passed restraining defendants from using the 4,000 sq. m plot for non-park purposes, subject to plaintiff compliance with Order 39, Rule 3.

Defendant No. 2 thereafter filed IA 7894/95 under Order XXXIX, Rule 4, CPC seeking to vacate the interim order dated 9th May 1995. The learned Judge (Lokeshwar Prasad, J.) heard both applications and the parties’ counsel and recorded his decision in the present order.

Legal Issues Presented

Whether the plaintiffs were entitled to an ad interim ex parte injunction under Order XXXIX, Rules 1 & 2 read with Section 151, CPC — i.e., whether they satisfied the threefold test of (a) prima facie case, (b) balance of convenience, and (c) irreparable injury.
Whether the interim ex parte order dated 9th May 1995 should be discharged, varied or set aside under Order XXXIX, Rule 4, CPC (as sought by defendant No. 2).
Whether, on the material on record, the disputed plot of land was prima facie a children's park or was earmarked for a primary school according to the land use plan and statutory procedure (including whether plaintiffs had pleaded a lawful change in land use).

Arguments of the Parties

Plaintiffs' Arguments

The plaintiffs seek a permanent injunction to restrain defendants from using the 4,000 sq. m. plot for any purpose other than a children's park and to restrain defendant No. 2 from digging or constructing on the plot.
They contend the plot has been earmarked and formally approved as a children's park (they refer to an alleged 1989 approval by then Lt. Governor Romesh Bhandari).
They assert that a part of the plot was previously sought to be allotted to Mohan Memorial Education Society and that a compromise (in Suit No. 1891/91) included an agreement that the remaining site would be used and developed as a children's park by DDA.
They allege any allotment to defendant No. 2 for a school is illegal, contrary to bye-laws, and would cause irreparable loss/injury to the residents.

Defendant No. 1 (Delhi Development Authority) — Contentions in Written Statement

The DDA's written statement (filed 15th July 1996) states the land use of the plot in question is for a primary school as per the land use plan and that the plot has been validly allotted to defendant No. 2 accordingly.
The DDA asserts that the residents (plaintiffs) have no right to claim the plot contrary to the land use plan and raises preliminary objections as to maintainability of the plaintiffs' suit.

Defendant No. 2 (DAV College Trust Management Society) — Contentions in Written Statement

Defendant No. 2, in its written statement dated 6th November 1995, raised preliminary objections as to maintainability of the suit.
On merits, it stated that a plot measuring over 6,000 sq. m was allotted to it by DDA for the purpose of a school, that it was in actual physical possession of the plot, and that allotment had been made for a premium (stated elsewhere in the record as Rs. 34.36 lakhs).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 : AIR 1993 SC 276	Principles to be applied before granting an injunction — court must be circumspect and consider the conduct of the party, probable injuries to either party, and whether the plaintiff could be adequately compensated if injunction is refused.	The court relied on this authority as a statement of settled law setting out the threefold test (prima facie case, balance of convenience, irreparable injury) and the need to examine parties' conduct and compensatory adequacy before granting interim injunctive relief.

Court's Reasoning and Analysis

The court first restated the settled legal principles applicable to an application under Order XXXIX, Rules 1 & 2 CPC: the applicant must establish (i) a prima facie case, (ii) that the balance of convenience is in his favour, and (iii) that refusal of relief would cause irreparable injury. These principles are not mere formulae but flexible concepts to be applied judicially; the burden to satisfy the court is on the applicant.

The judge explained each element as follows (in the language of the opinion):

"Prima facie case" means existence of a prima facie right and infraction of enjoyment of that right.
"Irreparable injury" means a material injury that cannot be adequately compensated by damages (not necessarily that it is physically impossible to repair the injury).
"Balance of convenience" requires weighing the likely mischief or injury to each party if the injunction is refused or granted and maintaining status quo where appropriate.

The court relied on Dalpat Kumar v. Prahlad Singh for the proposition that the court must be circumspect and consider the parties' conduct and compensatory adequacy.

Applying these principles to the facts on record the court observed:

The DDA's written statement asserts the land use under the layout plan is for a primary school and that the land was validly allotted to defendant No. 2 (for a stated premium of Rs. 34.36 lakhs).
The plaintiffs' own pleading (para 5 of the plaint) admits that the plot had been earmarked in the layout plan for a primary school; thus, on the material before the court, the plot appears to be for a primary school and not a children's park.
The plaintiffs did not plead anywhere how the land use was lawfully changed from primary school to children's park following the statutory procedure under the Delhi Development Act, 1957 and rules; the only document on record from Romesh Bhandari is a letter (dated 19th September 1994) requesting continuation of the plot as a children's park, which the court found inconsistent with an assertion of a formal approval in 1989.
Even if Romesh Bhandari had purported to approve a change, the court noted it would not have been within his competence to change land use contrary to the land use plan without following the statutory procedure laid down by the Act and Rules.
On the material, it also appeared prima facie that the plot allotted to defendant No. 2 was not the same plot as that which was the subject of the alleged earlier compromise with Mohan Memorial Education Society.

Taking the above into account, the court concluded that the plaintiffs had not established a prima facie case in their favour, that the balance of convenience was not with them, and therefore they were not entitled to the interim relief sought.

Holding and Implications

Holding: IA 4013/95 (plaintiffs' application under Order XXXIX, Rules 1 and 2 read with Section 151, CPC) is dismissed; IA 7894/95 (defendant No. 2's application under Order XXXIX, Rule 4, CPC) is allowed.

Direct consequences and practical implications as set out by the court:

The ex parte interim order dated 9th May 1995 passed in IA 4013/95 is vacated forthwith.
The parties are directed to bear their own costs.
The court expressly stated that nothing in this order is an expression of opinion on the merits of the main suit; the merits are left to be decided in due course on evidence to be adduced by the parties.

The opinion indicates no novel legal principle or new precedent was laid down; the decision applies settled tests for interim injunctions to the material on record and results in vacatur of the ex parte order and dismissal of the plaintiffs' interim application.

Show all summary ...

Lokeshwar Prasad, J.— This order shall dispose of two applications (IA 4013/95 and IA 7894/95)—one filed by the plaintiffs under Order XXXIX, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’) and the other one filed on behalf of defendant No. 2 under Order XXXIX, Rule 4 read with Section 151, CPC for the discharge/variation/setting aside the order dated the 9th May, 1995, passed in IA 4013/95.

2. The facts relevant for the disposal of the above mentioned two applications, briefly stated are, that the plaintiffs have filed a suit for permanent injunction with the prayer that a decree for permanent injunction restraining the defendants from using any part of the land, measuring 4000 sq. mtrs (as shown in the plan annexed with the plaint) for any other purpose except a children's park, be passed in favour of the plaintiffs and against the defendants. It is further prayed by the plaintiffs that defendant No. 2 be restrained by a decree of permanent injunction Page: 133from digging or making any construction on the abovesaid plot of land, situated in Ashok Vihar, Phase IV, SFS Flats, Delhi. As per the case of the plaintiffs, the above said plot measuring 0.66 hect., was ear marked in the land out plan for a Primary School but all along the abovesaid piece of land has been used as a park. It is averred that in the year 1989 the abovesaid plot of land was formally approved as a children's park instead of a site for Primary School by the then Lt. Governor of Delhi Shri Romesh Bhandari. It is further stated by the plaintiffs that sometime in the year 1990/91 a part of the above said plot was sought to be allotted to Mohan Memorial Education Society for running a Nursery School and plaintiff No. 1 filed a suit (Suit No. 1891/91) in the Court of Senior Sub-Judge, Delhi against the Delhi Development Authority seeking the relief of permanent injunction from changing the nature of the park. It is alleged that in the above said proceedings (Suit No. 1891/91) Mohan Memorial Education Society made an application under Order 1, Rule 10, CPC for its impleadment as a party. It is stated that the Delhi Development Authority had filed a written statement in the Court of Sub-Judge 1st Class wherein it was stated that out of 0.66 hector (6600 sq. mtr) an area of 4000 sq. mtrs in the lay out plan, adjacent to the Nursery School site, had been retained as a children's park. It is further stated that a compromise was effected between the plaintiff and the Mohan Memorial Education Society and it was inter-alia agreed that the remaining site would be used and would be developed as a children's park by the Delhi Development Authority. The main contention of the plaintiffs in the present proceedings is that the above said plot/park, measuring 4000 sq. mtrs. has been admittedly year marked for a children's park and that the same cannot be used for DAV Public School or for any other purpose. It is stated that the allotment of land, if at all to defendant No. 2 is illegal and against the bye-laws and in case the allotment is allowed to stand the plaintiffs would suffer irreparable loss and injury.

3. Alongwith the plaint, the plaintiffs have also filed an application (IA No. 4013/95) under Order XXXIX, Rules 1 and 2 read with Section 1.51, CPC for an ad interim ex-parte order. The above said application came up for hearing before the learned predecessor of this Court on 9.5.1995 and the learned predecessor of this Court on the above said application of the plaintiffs passed the following orders

IA 4013/95

Heard. Mr. Makhija, Counsel for the plaintiff. It is stated that initially, plot of 6000 sq. mtrs was earmarked for primary school. That in Suit No. 1891/91, filed by plaintiff No. 17, the defendant had agreed that a plot of 2000 sq. mtrs would be set apart from 6600 sq. mtrs and the same would be used for primary school purpose. On the strength of this fact, plaintiff No. 17 withdrew the earlier suit and now the defendant wants 4000 sq. mtrs. plot of land to be used for school rather than for the purpose of park. It is stated that at the present, 4000 sq. mtrs, is being used for park for the children of the society.

Looking to the facts and circumstances, it becomes necessary not to permit Page: 134the user of 4000 sq. mtrs plot of land being used for park to any other purpose by an ex-parte injunction.

Defendants restrained in terms of para 18(a) and (b) till the next date.

Plaintiff to comply with provisions of Order 39, Rule 3, CPC within 3 weeks from today.

Dasti.

Notice to the defendants, on filing P.F and Regd. AD covers by the plaintiff, for 1.9.1995

4. Defendant No. 2 on 28th July, 1995 filed an application (IA 7894/95) under Order XXXIX, Rule 4, CPC for the discharge/variation/setting aside the above said order dated the 9th May, 1995 passed in I.A 4013/95.

5. In so far as the above mentioned two applications—(one filed by the plaintiffs under Order XXXIX, Rules 1 and 2 read with Section 151, CPC bearing No. 4013/95 and the other one filed on behalf of defendant No. 2 under Order XXXIX, Rule 4, CPC bearing No. 7894/95)—are concerned I have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. As per settled law, culled out from various decisions, relief under Order XXXIX, Rules 1 and 2 can be given to an applicant provided the applicant is in a position to satisfy the Court that the applicant has a ‘prima facie case'; that the ‘balance of convenience’ is in his favour and that ‘irreparable loss/injury’ would be caused to him if the relief is not granted to him. The phrases ‘prima facie case'; balance of convenience’ and ‘irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity to meet myriad situations presented by men's ingenuity in given facts and circumstances, hedged with sound exercise of judicial discretion to meet the end of justice. The burden is always on the applicant/plaintiff to satisfy the Court that there is a ‘prima facie case’ in his favour which needs adjudication at the trial. 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. However, satisfaction that there is a ‘prima facie case’ by itself is not a sufficient ground to grant injunction. The Court further has to satisfy itself that non-interference 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 the one to grant injunction and that the applicant needs protection from the consequences of apprehend injury. 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 cannot be adequately compensated by way of damages. While granting relief under the above provisions the Court has also to see that the ‘balance of convenience’ must be in favour of granting injunction. In other words, the Court, while granting or refusing to grant injunction, is expected to exercise sound judicial discretion to find out 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 it 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 Page: 135if the Court considers that pending the suit the subject matter should be maintained in status quo, an injunction under the above provisions would be granted by the Court. Their lordships of the Supreme Court in case Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 : AIR 1993 SC 276 have held that before granting injunction the Court would be circumspect and look to the conduct of the party, the probably injuries to either party and whether the plaintiff could be adequately compensated if the injunction is refused.

6. In the light of the above settled legal position it is to be seen as to whether in the present case the plaintiffs have a ‘prima facie case’ in their favour; whether the ‘balance of convenience’ is also in their favour and whether ‘irreparable loss/injury’ would be caused to the plaintiffs if the relief sought for is not granted to them.

7. As per the case of the plaintiffs the plot in question is a ‘children's park’ and therefore the same cannot be used or cannot be allowed to be used by any one for purposes other than children's park. Whereas the DDA in its written statement filed on 15th July, 1996 has categorically stated that the land use of the plot in question is for a primary school and in accordance with the land use of the plot, the same has been validly allotted to defendant No. 2 and the residents (plaintiffs) have no right to claim the above said plot of land contrary to the land used plan. The defendant Delhi Development Authority in its written statement has also taken certain preliminary objections with regard to the maintainability of the suit filed by the plaintiffs. Defendant No. 2 the DAV College Trust Management Society in its written statement dated the 6th November, 1995 while taking preliminary objections with regard to the maintainability of the suit, on merits, has stated that the plot in question, measuring over 6000 sq. mtrs was allotted to it for the purpose of a school by the defendant Delhi Development Authority and defendant No. 2 is in actual physical possession of the above said plot of land. On the basis of material on record, more particularly the contents of the written statement filed on behalf of defendant No. 1 DDA, it is apparent that the land use of the plot in question as per the land use plan of the area is not for children's park but is for a Primary School and in accordance with land use of the plot in question the respondent DDA has allotted the land in question to defendant No. 2 for a premium of Rs. 34.36 lakhs. In my opinion, on the basis of material on record, prima facie, at this stage there appears to be no substance in the contention of the plaintiffs that the above said plot is a children's park because as per the averments of the plaintiffs themselves the plot in question was earmarked in the lay out plan for a ‘Primary School’ (para 5 of the plaint). As per the statutory provisions, contained in the Delhi Development Act, 1957 and the Rules framed thereunder the land use of a plot of land can be changed only by following the procedures prescribed by the statute. The plaintiffs neither in the plaint nor in the application have any where pleaded as to how the land use of the plot in question was changed from primary school to children's park. In para 6 of the plaint it is stated that in 1989 the plot of land was formally approved as a children's park by the then Lt. Governor of Delhi Shri Romesh Bhandari. The above plea, taken by the plaintiffs, is not supported by the material on record On record in the documents filed on Page: 136behalf of plaintiffs there is a letter dated the 19th September, 1994, addressed by Shri Romesh Bhandari to Shri Markandey Singh, the then Lt. Governor, Delhi. In the above said letter Shri Romesh Bhandari has requested the then Lt. Governor/Chairman DDA that the plot of land in question be permitted to be continued to be used as a children's park for the children of the residents of the locality. In case Shri Romesh Bhandari had formally approved the site as a children's park instead of a primary school, as alleged, in that event where was the necessity for Shri Romesh Bhandari to make a request to the then Lt. Governor for permitting the user of the plot in question as children's park for the children of the residents of the locality. Even otherwise it was not within the competence of Shri Romesh Bhandari the then Lt. Governor/Chairman, DDA to have changed the user of the land contrary to the Land Use Plans of the area without following the procedure prescribed by the statute.

8. From the above facts it is apparent that the plot in question all through is for a Primary School as per the Land Use Plan of the area and not for children's park. Moreover, on the basis of material on record, more particularly the contents of the written statement filed on behalf of defendants 1 and 2 prima facie it is apparent that the plot in question allotted to defendant No. 2 is other than the plot in respect of which the compromise is alleged to have been arrived at between the plaintiff, the Delhi Development Authority and the Mohan Memorial Education Society.

9. From the narration of the above facts, it is apparent that the plaintiffs have no prima facie case and no balance of convenience is in their favour and as such they are not entitled to any relief as prayed for by them in the application filed by them under Order XXXIX, Rules 1 and 2 read with Section 151, CPC.

10. In view of the above discussion, the application (IA 4013/95) filed by the plaintiffs under Order XXXIX, Rules 1 and 2 read with Section 151, CPC is liable to be dismissed and the application (IA 7894/95) under Order XXXIX, Rule 4, CPC filed by the defendant No. 2 deserves to be allowed. Accordingly, the application (IA 4013/95) filed by the plaintiffs is dismissed and the application (IA 7894/95) filed by defendant No. 2 is allowed. The order dated 9th May, 1995, passed in IA 4013/95 stands vacated forthwith. In the facts and circumstance of the case the parties are left to bear their own costs.

11. Nothing stated hereinabove shall amount to expression of any opinion on the merits of the case by this Court which shall be decided in due course on the basis of the evidence that may be adduced by both the parties in support of their respective contentions.

12. I.A 4013/95 and IA 7894/95 stand disposed of in above terms.

I.A 4013 (95 dismissed & I.A 7894/95 allowed.