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Aravind Goekna and anr. Vs. Sushila Devi Tibrewalla and ors. - Court Judgment

LegalCrystal Citation
Subject;Property;Civil
CourtGuwahati High Court
Decided On
Case NumberFAO No. 45 of 2001
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rules 1 and 2
AppellantAravind Goekna and anr.
RespondentSushila Devi Tibrewalla and ors.
Appellant AdvocateA. Roy, B.W. Phira and I. Saikia, Advs.
Respondent AdvocateN.M. Lahiri, N. Chouhdury, S.C. Koyal and S.K. Ghosh, Advs.
DispositionAppeal allowed
Prior history
Ranjan Gogoi, J.
1. Aggrieved by the grant of injunction, the instant appeal has been preferred by the principal defendants in Title Suit No. 6(SH)/2001 now pending before the learned Assistant District Judge, Shillong. The facts, in brief, may be noticed as hereunder.
2. The Respondents No. 1, 2 and 3 in the present appeal instituted a suit being Title Suit No. 6(SH)/2001 in the Court of learned Assistant District Judge, Shillong praying for declaration and perpetual injunction against the p
Excerpt:
.....the learned counsel has further argued that the learned trial court instead of proceeding to grant injunction ought to have rejected the plain under order 7 rule 10 of the code of civil procedure. roy has also argued that the equitable relief of injunction is not a matter of course and can only be granted subject to the existence of well recognised conditions precedent which ex facie are not present in the instant case. lahiri, learned senior counsel appearing on behalf of the respondents-plaintiffs has very strenuously contended that the averments made by the plaintiffs in the plaint and in the injunction petition field clearly make out a case in favour of grant of injunction. lahiri contends that on the facts as appearing in the plaint and injunction petition, a strong prima..........the learned counsel has further argued that the learned trial court instead of proceeding to grant injunction ought to have rejected the plain under order 7 rule 10 of the code of civil procedure. mr. roy has also argued that the equitable relief of injunction is not a matter of course and can only be granted subject to the existence of well recognised conditions precedent which ex facie are not present in the instant case. reliance in this regard has been placed by the learned counsel on two decisions of the apex court in the case or dalpat kumar and anr. v. prahlad singh and ors. and shiv kumar chadha v. municipal corporation of delhi, reported in (1992) 1 scc 719 and (1993) 3 scc 161 respectively. the learned counsel has further argued that by the injunction granted by the.....
Judgment:

Ranjan Gogoi, J.

1. Aggrieved by the grant of injunction, the instant appeal has been preferred by the principal defendants in Title Suit No. 6(SH)/2001 now pending before the learned Assistant District Judge, Shillong. The facts, in brief, may be noticed as hereunder.

2. The Respondents No. 1, 2 and 3 in the present appeal instituted a suit being Title Suit No. 6(SH)/2001 in the Court of learned Assistant District Judge, Shillong praying for declaration and perpetual injunction against the present appellants i.e. the defendants in the suit from proceeding with the construction undertaken by the appellants/defendants. Along with the plaint, the respondents/ plaintiffs had filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure praying for injunction. Ad interim order of injunction was also prayed for. The case of the respondents/ plaintiffs in the suit and in the injunction petition filed, in short, is that they are the owners of a dwelling house situated at Police Bazar, Shillong The aforesaid suit property has been in the possession of the plaintiffs for over 30 years. In the plaint field it was alleged that principal defendants in the suit (appellants herein) had recently acquired, by purchase, a plot of land adjacent to that of the plaintiffs. According to the plaintiffs, the defendant s had started construction of a building on the said plot of land about 6 months back and the building is being erected in such a manner that there is every likelihood of preventing and obstructing natural air and light from entering into the said house of the plaintiff, thereby rendering the said suit house unfit for comfortable dwelling. According to the plaintiffs, they had filed a complaint in this regard before the defendant No. 3 namely, Chief Executive Officer, Shillong Municipal Board as also the proforma defendant No. 4 namely, Deputy Commissioner, Shillong. It is stated in the plaint that pursuant to the said complaint a joint inspection on the site was carried out by the authorities and a report was prepared which was forwarded to the competent authority for appropriate action. According to the plaintiffs, although the aforesaid report of joint inspection dated 11.6.2001 substantiated the claims made by the plaintiffs, the defendants had clandestinely and by misrepresenting the facts,s obtained a building sanction from the proforma defendant No. 3 and were proceeding with the construction at a great speed. Specifically, the plaintiff contended that construction undertaken by the defendants was not in accordance with the Municipal Law, rules and regulations requiring any construction to be atleast 1.8 Mtrs away from the side of the immediate neighbouring building and 3 Mtrs from the main road. The plaintiffs also contended that by the side of their existing building there is a small lane which belongs to the plaintiff-defendant. By showing the same to be a public foot path, the defendants fraudulently overcame the stipulation regarding 1.8 Mtrs. of space required to be maintained. It was further contended by the plaintiffs that a perusal of the Enquiry Report dated 11.6.2001 would clearly go to show that the defendants had breached the mandatory requirements of the rules and regulations and as the construction undertaken had the potential of depriving the plaintiff from the flow of fresh air and light, the suit in question along with the injunction application was filed for the reliefs earlier stated.

3. A Caveat was filed in the learned trial Court on behalf of the defendants and upon institution of the suit, requisite notices were served on the defendants. The learned trial Court by order dated 6.9.2001, on the grounds and reasons stated, having granted the injunction restraining the defendants from proceeding with the construction, the instant appeal has been filed.

4. Mr. A. Roy, learned senior counsel appearing on behalf of the appellant/defendants has assailed the correctness of the order dated 6.9.2001 passed by the learned trial Court granting injunction primarily on the ground that ex facie the suit of the plaintiffs in its present form is not maintainable in law and, therefore, there could have been no occasion for the learned trial Court to pass the order of injunction impugned in the present appeal, Mr. Roy has argued that the averments in the plaint and the injunction petition not having even remotely made out a prima facie case in favor of the plaintiff, the impugned order of injunction is legally not sustainable. Elaborating, Mr. Roy contends that admittedly in the instant case the construction undertaken by the defendants is on their own land and on the basis of requisite sanction/permission granted by the Municipal authority. There is no relief prayed for in the suit for a declaration that the building permission accorded to the defendants is illegal. It is, therefore, contended that the plaintiffs cannot have a prima facie case to go for trial on the basis of the pleadings as on record. The learned counsel further argues that there is no relief claimed in the suit by way of permanent injunction and, therefore, the grant of ad interim injunction is clearly beyond the power of the trial Court, notice under Section 80A of the Code of Civil Procedure and the provisions of the Municipal Act not having been served on the official defendants in the suit and no order dispensing with such notice having been recorded by the learned trial Court the plaintiffs' suit, it is contended, is not maintainable, As the suit of the plaintiff has not been valued, the learned counsel has further argued that the learned trial Court instead of proceeding to grant injunction ought to have rejected the plain under Order 7 Rule 10 of the Code of Civil Procedure. Mr. Roy has also argued that the equitable relief of injunction is not a matter of course and can only be granted subject to the existence of well recognised conditions precedent which ex facie are not present in the instant case. Reliance in this regard has been placed by the learned counsel on two decisions of the Apex Court in the case or Dalpat Kumar and Anr. v. Prahlad Singh and Ors. and Shiv Kumar Chadha v. Municipal Corporation of Delhi, reported in (1992) 1 SCC 719 and (1993) 3 SCC 161 respectively. The learned counsel has further argued that by the injunction granted by the learned trial Court, the final reliefs in the suit having been allowed, the impugned order is, therefore, contrary to the mandate of the law laid down by the Apex Court in the case of Bank of Maharashtra v. Race Shipping and Transport Co. Pvt. Ltd and Anr., reported in AIR 1995 SC 1368.

5. Mr N.M. Lahiri, learned senior counsel appearing on behalf of the respondents-plaintiffs has very strenuously contended that the averments made by the plaintiffs in the plaint and in the injunction petition field clearly make out a case in favour of grant of injunction. Defects, if any, in the suit filed are curable defects and they can form the subject matter of corrections and amendments at a later stage. Mr. Lahiri contends that on the facts as appearing in the plaint and injunction petition, a strong prima facie case for trial and a grave and irreparable loss to the plaintiff which cannot be compensated in terms of money in the event injunction is refused having been clearly established it was within the power and jurisdiction of the learned trial Court to grant injunction. No case for interference with the said order of injunction, in exercise of the appellate power of this Court has been made out, it is argued.

6. Injunction is a relief founded in equity. The power to grant or refuse injunction essentially lies in the realm of discretion of the Court. The norms for exercise of such power has however, come to be fairly well established. Whether the plaintiff seeking an injunction has a prima facie case to go for trial; whether the balance of convenience between the parties lies in favour of grant or refusal of injunction and the determination of the question of irreparable loss and injury that will be occasioned to the plaintiff if injunction is refused, apart from the question of public interest, if any involved, undoubtedly have been accepted to be the cardinal principles to be considered by the Court while adjudicating the rival claims of the parties made for and against grant of injunction. Reiteration of the settled principles raises no difficulty; the difficulty however lies in applying the principles to the given facts of a case. The power to grant and/or refuse injunction is a drastic power and may have been the effect of causing serious repercussions on the affected party. The problem is more acute when the Court is required to consider such grant or refusal at the initial stage of the proceedings when the benefits of the statements made in the plaint and the injunction petition alone are available to the Court. The power, therefore, has to be exercised with the greatest of care, caution and circumspection.

7. Before proceeding to determine the correctness of the order passed by the learned trial Court in the instant matter and no determine the entitlement of the parties in the present case, the powers of the appellate Court to interference with the grant or refusal of injunction may be noticed at this stage. The law in this regard is fairly well settled. In the case of Wander Ltd v. Antox India Pvt Ltd, reported in (1990) Suppl. SCC 717, The Apex Court has held that unless discretion has exercised by the trial Court arbitrary, capriciously, whimsically or without due regard to the established principles governing the grant and/or refusal of injunction, the appellate Court should be slow to interfere with the discretion exercised by the Court below. A view possible on the facts of the case, if adopted by the trial Court, must be allowed to prevail notwithstanding the fact that the appellate Court, on the same fact might be inclined to take another view. I however the view taken is neither a possible nor a reasonable view, the power of the appellate Court to interfere will spring into action.

8. Adverting to the facts of the instant case, it may be noticed that the trial Court after recording a finding that there is a prima facie case in favour of the plaintiff and balance of convenience also lies with the plaintiff had proceeded to hold that denial of injunction would result in depriving the plaintiff of his right to fresh air and light which cannot be compensated in terms of money. On the said basis, the learned trial Court was inclined to pass an ad interim injunction in favour of the plaintiff. The findings regarding prima facie case, balance of convenience and irreparable loss as recorded by the learned trial Court are the conclusions which must have been reached by the trial Court by a process of reasoning. The said process of reasoning which would consist of the reasons has however, not been reflected in the impugned order. Reasons and basis are the essence of the judicial process. It is the reasons in support of an order that can generate satisfaction in the Court to pass the order and it is the said reasons and basis which made the exercise of the appellate powers meaningful. The practice of disposing of injunction prayers on the basis of mere conclusions without indicating as to how the said conclusions have been arrived at has to be deprecated and discouraged.

9. Viewed from the above perspective, the case in hand may deserve a remand for a de novo consideration. However, considering the pressing urgency indicated by the counsels for the rival parties as also the fact that the only question that requires determination in the instant case is as to whether the trial Court, notwithstanding the very cryptic order passed, was eventually right in its conclusion, I have persuaded myself to look into the rival contentions and record appropriate findings thereon.

10. The essence of the plaintiffs' case as stated in the plaint and injunction petition is that on the basis of a fraudulent building permission, the defendants had since the last six months started construction on the plot of land adjacent to the building of the plaintiff. The aforesaid construction is being planned and designed in such a manner that if allowed to be completed, the new construction would obstruct the passage of air and light into the existing building of the plaintiffs thereby causing substantial injury to them. On the aforesaid core facts, the plaintiffs prayed for an appropriate injunction restraining the defendants from proceeding with the construction until the defendants complied with the mandatory rules and regulations of the Municipal authorities governing the grant of permission for building construction. An additional prayer directing the defendant-Municipal Corporation to resolve the dispute by ascertaining the correct position of the byelane was also made on the basis of averments made in the plaint and injunction petition to the effect that the plaintiffs were in possession of the building in respect of which an injury was threatened by the new construction and such possession was for over a period of 30 years, it cannot be said that the plaintiffs do not have a prima facie case to go for trial. The objections raised by Mr. Roy, learned counsel for the appellants, in this regard may at best lead to the conclusion that the plaint filed is not very adequately drafted. However, the essence of the pleadings to establish a prima facie case for trial are found to be present. But that is not all that is required. The plaint as well as the injunction petition is conspicuously silent as to what is the stage of construction on the date when the suit was filed. The plaint and the injunction petition does not disclose as to whether the apprehended injury was imminent or did the apprehension lie in the realm of the future. From prayer (b) made in the suit, it is abundantly clear that the new construction undertaken by defendants consists of a basement. The materials available before the trial Court on the date when the order of injunction was passed does not indicate whether the construction of the basement is complete and the exact stage of the construction on the relevant date. In the absence of any pleading to the above effect indicating the precise stage of the new construction in relation to the plaintiffs' existing building, the determination of the question of balance of convenience and irreparable loss, in the considered view of this Court, cannot be made except by a process of speculation and guess work. If only the aforesaid facts had been brought on record by the plaintiffs succinctly depicting a clear picture that the new construction has reached or is about to reach a stage above the ground level and any further construction would cause obstruction to the passage of air or light, the plaintiff would have been entitled to an order of injunction. Injunction cannot be granted as a matter of right or course or on account of charity. The grant of injunction can follow only on the requisite satisfaction being reached by the Court. In the facts of the present case, it cannot be said that the learned trial Court was right in granting injunction in favour of the plaintiff,

11. In view of the foregoing discussions, this appeal is allowed. The impugned order dated 7.9.2001 passed in Misc case No. 6(SH) 2001 by the learned assistant district judge, Shillong is hereby set aside. Naturally, as the entitlement of the plaintiffs to an order of injunction on the basis of the statements made in the plaint and injunction application as on 7.9.2001 has been considered by the present order, it will always be open for the plaintiffs to approach the learned trial Court for necessary interim relief on any new, additional and subsequent facts. If any such application is filed by the plaintiffs, the learned trial Court shall consider it on merits and pass appropriate orders thereon.


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