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Bhawarilal and anr. Vs. S. Jaichand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 93 of 1974
Judge
Reported inAIR1975Kant122; ILR1975KAR127; 1975(1)KarLJ1
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Specific Relief Act, 1963 - Sections 37; Constitution of India - Article 226
AppellantBhawarilal and anr.
RespondentS. Jaichand and ors.
Appellant AdvocateS.R. Ramanathan, Adv.
Respondent AdvocateS.L. Simha, Adv.
Excerpt:
.....interfering with possession of plaintiffs over suit house. prayer of plaintiffs to declare them to be dismissed as unregistered documents and mutation entry will not confer any ownership rights on plaintiffs. - 4. in my opinion, that submission is well-founded......the plaintiffs come to the court and seeks an injunction compelling the municipality to lease the shops by auction?9. if under law the municipality is bound to lease the shops by holding public auction, but the municipality has in contravention of that law leased the shops directly to the petitioners, the remedy of the plain-tiffs, if any, is to approach this court under article 226 of the constitution. courts subordinate to the high court have not the power of issuing writs.10. i am most surprised that when the plaintiffs have not acquired any present right to the suit shops, the courts below should have granted the temporary injunction as prayed for. the learned munsiff at k. g. f. as also the learned civil judge at kolar have betrayed their ignorance of the basic principles governing.....
Judgment:
ORDER

1. This is a revision petition by defendants 2 and 3 in O. S. No. 94 of 1973 on the file of the Court of the Munsiff, K. G. F., against the order of temporary injunction granted in the said suit, which was affirmed in appeal by the Court of the Civil Judge, Kolar, in M. A. No. 62 of 1973.

2. Respondents 1 and 2 are the plain-tiffs and respondent 3 is the Administrator of the Robertsonpet Town Municipality, K. G. F. The said Municipality is the owner of two shops which are the subject-matter of these proceedings. The Municipality leased the two shops on 17-6-1972 to the petitioners. On 9-3-1973, respondents 1 and 2 instituted O. S. No. 94 of 1973 against the Municipality and also the lessees from the Municipality, who are the petitioners herein, seeking the relief of permanent injunction restraining the petitioners from occupying the premises leased to them. The plaintiffs' case is that under the directions of the Deputy Commissioner of Kolar, the Municipality should have auctioned the shops and by leasing the said shops without holding auctions, to the petitioners, the plaintiffs have been deprived of the right to bid in the auctions. The gist of the plaintiffs' case is that the Municipality should have sold the shops in public auction and should not have disposed of the same by leasing them to defendants 2 and 3.

3. The Court of the Munsiff at K. G. F. granted the interim relief of injunction and that was made absolute by the order dated 22-3-1973. The appeal preferred against the said order was dismissed by the Civil Judge at Kolar in M. A. No. 62 of 1973. It was urged by the learned counsel for the petitioners that the Courts below have acted Illegally in the exercise of then jurisdiction ID granting the temporary injunction.

4. In my opinion, that submission is well-founded. Ordinarily, I do not interfere when an interlocutory order is made in the exercise of the discretionary power of the Court granting or refusing temporary injunction. But it is the duty of the High Court to interfere in revision to correct the lower Courts when they act perversely and contrary to all settled principles governing the exercise of discretion.

5. It is an undisputed fact that the Town Municipality (Defendant No. 1) is the owner of the shops and that the plaintiffs have not any rights of property, whether as owners or lessees therein. The Town Municipality leased the shops to the petitioners on 17-6-1972, and that is a matter of record. The grievance of the plaintiffs is that the Town Municipality ought to have sold the leasehold rights in public auction and that if such an auction had been held, the plaintiffs would have bid at the auction. The substance of the relief sought for by the plaintiffs in this case is in the nature of a writ of mandamus to the Town Municipality, after quashing the lease dated 17-6-1972 granted in favour of defendants 2 and 3, to sell the leasehold rights of the shops. The interim relief prayed for is that defendants 2 and 3 should be restrained from occupying the shops in question. The question is whether such a relief could have been granted.

6. Suite for injunction are governed by the Specific Relief Act, 1963. The said Act also lays down the general principles governing the grant of injunctions--perpetual or mandatory. Temporary injunctions in aid of the main relief may be granted in the exercise of the discretion of the Court.

7. In determining whether an injunction will be issued to protect any right of property, to enforce any obligation, or to prevent any wrong, there is one fundamental principle of the utmost importance, which furnishes the answer to any questions, the solution to any difficulties that may arise. This principle is both affirmative and negative, and the affirmative aspect of it should never be lost sight of, any more than the negative side. The general principle may be stated as follows: Wherever a right exists or is created, by contract, by the ownership of property or otherwise, cognizable by law, a violation of that right will be prohibited, unless there are other considerations of policy or expediency which forbid a resort to this prohibitive remedy. The restraining power of equity extends, therefore, through the whole range of rights and duties which are recognised by the law, and would pe applied to every case of intended violation, were it not for certain reasons of expediency and policy which control and limit its exercise. (Vide Pomeroy's Equity Jurisprudence, 4th Volume. Paragraph 1338, Page 3207).

8. The plaintiffs have not acquired, any legal right to the suit shops. If and when an auction is held and the plaintiffs become the successful bidders and the lease in their favour is confirmed, they will acquire a right to the property until then they have no legal right to the shops. Supposing the Municipality does not lease out the shops at all. Can the plaintiffs come to the Court and seeks an injunction compelling the Municipality to lease the shops by auction?

9. If under law the Municipality is bound to lease the shops by holding public auction, but the Municipality has in contravention of that law leased the shops directly to the petitioners, the remedy of the plain-tiffs, if any, is to approach this Court under Article 226 of the Constitution. Courts subordinate to the High Court have not the power of issuing writs.

10. I am most surprised that when the plaintiffs have not acquired any present right to the suit shops, the Courts below should have granted the temporary injunction as prayed for. The learned Munsiff at K. G. F. as also the learned Civil Judge at Kolar have betrayed their ignorance of the basic principles governing the grant of injunction, perpetual or temporary. No doubt, they have written lengthy orders running over several pages.

11. For the above reasons, I allowthis revision petition, reverse the orders ofthe Courts below and dismiss the applicationof the plaintiffs for temporary injunction withcosts throughout.

12. Petition allowed.


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