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The Special Officer, Municipal Corporation of Hyderabad Vs. Mohd. NooruddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 139, of 1971 and C.M.P. No. 2249 of 1971
Judge
Reported inAIR1972AP46
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 39, Rule 3
AppellantThe Special Officer, Municipal Corporation of Hyderabad
RespondentMohd. NooruddIn and ors.
Appellant AdvocateM. Ramamohan Rao, Adv.
Respondent AdvocateJalil and ;Mohd. Mukkarramuddin, ;M. Narasiah, ;A. Venkataiah and ;S.M. Hasan, Advs.
Excerpt:
.....no danger that respondents would be left without remedy for recovering amount claimed by executing decree in event of their obtaining decree - held, order under appeal set aside. - - (3) the court shall, in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. in other words, respondents 1 to 7 have expressed an apprehension that in the event of their succeeding in the suit, they may not be in a position to realise the amount decreed by the court, in which event the very object of the suit brought by them would be defeated. makes it clear that it is only in cases where it appears to the court that the object of..........be issued to the respondent to send the amount of rupees 7,56,619/- assesses as value for the suit property to the court immediately. notice to the respondent calling as t why the order be not made absolute call on 19-4-1971.'the office of the corporation seems to have received the order on 6-4-1971 and without complying with the direction to deposit the amount, the present miscellaneous appeal was preferred in this court. in the affidavit of the special officer opposing the ad interim injunction it is stated by him that the allegation of the respondents r-1 to r-7 that they will be unable to recover the amount if they succeed in the suit is absolutely baseless and there is also no basis for the allegation that the corporation was running into losses and would be unable to satisfy.....
Judgment:

Obul Reddi, J.

1. This miscellaneous appeal is directed against an order of the III Additional Chief Judge, City Civil Court. Hyderabad, in I. A. No. 17/71 in O.l P. No. 164/71 granting an ex parte ad interim injunction as prayed for by the plaintiffs, respondents I to 7. The relevant facts leading to the filing of this miscellaneous appeal are these:---------

Respondents 1 to 7 filed a petition, O. P. 164/71 for permission to sue the appellant, the Special Officer of the Municipal Corporation of Hyderabad, in forma paupers for recovery of possession of Acs. 5-35 juntas and menses profits of Rs. 85,668 and alternatively for damages of Rs. 20,41, 754/- towards ' land compensation.' Along with this petition they filed an application. I. A. 17/71 under Sections 151 and 94 read with O. 39, R. 1, Civil P. C. and section 37 of the Specific Relief Act seeking a temporary injunction directing the respondent (appellant) and his agent to deposit a sum of Rupees 7,56,619/- said to be the amount admitted by the Corporation as being due to the plaintiffs, pending disposal of the suit. The leaned Judge without notice to the appellant made an ad interim injunction directing the appellant to deposit a sum of Rs. 7,56,619/- immediately on receipt of the order, into court. It is the case of the appellant that whenever agreed to pay Rs. 7.56,619/- to the plaintiff and that the application of the plaintiffs does not at all disclose circumstances for direct the appellant to deposit the said sum into court even before the respondents Nos. 1 to 7 were permitted to sue in forma pauperis.

The facts stated in the main O. P. and the application of respondents 1 to 7 are to the effect that the defendant the suit land in 1964 without initiating proceedings under the Land Acquisition Act and that the corporation has already constructed several multi-storeyed buildings and some ;more are under construction and that the Government suggested to the Corporation to pay compensation to respondents 1 to 7 at Rs. 18/- per Sq. yd. together with interest at 4 per cent. thereon and the usual solatium of 15 per cent., which total up to Rs. 7,56,619/- and that notwithstanding the recommendation made by the Government the appellant had not chosen to pay the amount to respondents 1 to 7 and therefore they had no option but to file a suit in the lower court asking for the relief of possession and in the alternative compensation as stated above. Another ground urged in the petition is that the appellant in collusion with some others is evading payment of the amount and utilising the sum payable to respondents 1 to 7 for some projects and that if an injunction is not is not granted in their favour, it might result in total loss to them in view of the unsound financial position of the Corporation. It s their case that the appellant is trying to transfer or spend the amount deliberate intention of defeating the rights of respondents 1 to 7. In short their case is that it would result in irreparable loss and great hardship if a temporary injunction is not granted as prayed for by them.

The learned Judge without notice to the appellant made the following order:

'Heard, Prima facie this is a case for the petitioner whose rights appear to have been recognised by the respondent; only dispute appears to be in the fixation of rate which the respondent had to do with negotiation. It is represented that negotiations have broken down as the respondent stipulates to pay at the rate of Rs. 18/- to which the petitioners claim as low. Their claim is Rs. 50/- per Sq. Yard. The matter of valuation has to be agitated in the regular suit. Under the circumstances when the petitioner apprehends that injury will be causes if the amount is allowed to remain with the respondent subject to the decision of the court in O. P. 164/71, the interests of justice in my opinion also requires that a mandatory injunction be issued to the respondent to send the amount of Rupees 7,56,619/- assesses as value for the suit property to the Court immediately. Notice to the respondent calling as t why the order be not made absolute call on 19-4-1971.'

The Office of the Corporation seems to have received the order on 6-4-1971 and without complying with the direction to deposit the amount, the present miscellaneous appeal was preferred in this court. In the affidavit of the Special Officer opposing the Ad Interim injunction it is stated by him that the allegation of the respondents R-1 to R-7 that they will be unable to recover the amount if they succeed in the suit is absolutely baseless and there is also no basis for the allegation that the Corporation was running into losses and would be unable to satisfy the decree in the event of a decree being passed in favour of respondents 1 to 7. In short it is the case of the appellant that the balance of convenience is not in our of respondents 1 to 7. that no Prima Facie case has been made out by them and that the Municipal Corporation has sufficient means to satisfy the decree in the event of the respondents obtaining a decree against it, and that there are no compelling grounds for granting Ad Interim Injunction without notice to it.

2. Subsequent to the filing of this appeal respondents 8 to 14 have been permitted to come on record by this Court on an application. C. M. P. No. 1361/71 filed by them, as they claim to be entitled to As. 13/09 Ps. share in the property as against the share of respondents 1 to 7 , which, according to them, is only As. 02-03 ps. We are not concerned in this appeal as to whether respondents 8 to 14 are entitled to As, 13-09 Pa. share or whether they have any interest at all, as we are only concerned with the question whether there were grounds for granting Ad. Interim injunction against the deposit the sum of Rs. 7,56,619/- immediately into Court.

3. To appreciate the question involved it is necessary to note the relevant provisions of order 39, Civil P. C.

'39 (1) Where in any suit it is proved by affidavit or otherwise.------------

(a) that any property in dispute, in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

(3) The Court shall, in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party.

(10) Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last named party, with or without security, subject, to the further direction of the Court.'

There could be no dispute that the Court is entitled to issue a temporary injunction in exercise of its inherent powers on the basis of circumstances not covered by the basis of circumstances not covered by Order, 39, Civil P. C. See Manohar Lal v. Seth Hiralal, : AIR1962SC527 . The circumstances placed in this case, as may be seen from the plaint and the affidavit filed by respondents 1 to 7, are that the finances of the Corporation are not sound as it is having a deficit budget and that in intends to divert the amount payable in the event of a decree being obtained by respondents 1 to 7 for certain projects which it proposes to undertake. In other words, respondents 1 to 7 have expressed an apprehension that in the event of their succeeding in the suit, they may not be in a position to realise the amount decreed by the Court, in which event the very object of the suit brought by them would be defeated. If there is any 'reasonable apprehension' that the Municipal Corporation, 'a statutory body' in the event of respondents 1 to 7 succeeding in their suit, will not be in a position to satisfy the decree. or it will be impossible for the decree-holder to realise any monies from the Corporation, then, of core, there will be justification for making an injunction of the kind made by the lower court.

The Court no doubt has discretionary power to issue an ex parte mandatory injunction but great care has to be taken before exercising that discretion. Discretion has to be exercised on sound judicial principles. What has to be judged while granting an ex parte injunction is whether there is some imminent danger to the property or if such a relief is not granted whether it will expose the suitor to irreparable injury. in other words defeat the very purpose for which the action has been brought. Rule 3 of action order 39, Civil P., C. makes it clear that it is only in cases where it appears to the Court that the object of granting an injunction would be defeated by delay that a notice to the opposite party is dispensed with. The order of the Court below does not disclose that there is any danger of the Corporation going into liquidation or the respondents would be left without any remedy for recovering the amount claimed by executing a decree in the event of their obtaining a decree against the Corporation. The fact that the Corporation has published a deficit budget or that there are other projects to be executed by the Corporation is not a ground for holding that the interests of respondents 1 to 7 are in jeopardy and that any decree that might be obtained by them might remain only as a waste paper or a scrap of paper.

We do not find from the allegations made in the plaint as well as the affidavit filed by respondents 1 to 7 in support of their application do not show any compelling circumstance which require the Court to grant an ad interim injunction. When the apprehension which respondents 1 to 7 expressed in their affidavit, is absolutely unfounded, it cannot be said that they will be exposed to the danger of not being able to realise the amount due to them in the event of their uses in the suit. Further, nowhere do we get in the plaint that the Corporation is in possession of the property, where buildings have come up, as a trustee of respondents 1 to 7. Neither respondents 1 to 7 have made out a prima facie case, nor the balance of convenience is in their favour. There is no reason why the monies of a Court when they could be profitably utilised by the Corporation for public utilised by the Corporation for public purposes . There is absolutely no cause for any sort f apprehension the minds of respondents 1 to 7 that they will not be in a position to see the fruits of the decree in the event of their success in the suit. We therefore, have no hesitation in setting aside the Order under appeal and allowing the appeal. Appeal is allowed, but in the circumstances of the case there will be no order as to costs.

C. M. P. No. 2249 of 1971.

4. This Court has permitted respondents 8 to 14 to come on record as their application was not opposed by the appellant and also because of the reason that they claimed that they are entitled to that they claimed that they are entitled to As. 13-09 ps. share in the disputed property. In the circumstances we see no reason for revoking that order simply for reason to respondents 1 to 7. Petition is therefore dismissed.

5. Appeal allowed and Petition dismissed.


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