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M. Holkar and anr. Vs. A.P. Srihan - Court Judgment

LegalCrystal Citation
SubjectContract
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 2260 of 1983
Judge
Reported inAIR1985P& H24
ActsSpecific Relief Act - Sections 41
AppellantM. Holkar and anr.
RespondentA.P. Srihan
Cases Referred and Kamal Arora v. Amar Singh
Excerpt:
.....finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge..........the plea of acquiescence and thus challenge the jurisdiction of the trial court to entertain the suit for injunction in view of the provisions of s. 41 of the act. the trial court had prima facie come to the conclusion that the premises were given for purposes of residence, that it had been put to a use which was prohibited by the rules and regulations of the capital of punjab (development & regulation) act, 1952 and the rules made thereunder and the violation was such as a result of the prohibited use of the premises that the building could be resumed by chandigarh administration. the trial court also observed that even though chandigarh administration had taken a policy decision that use of the residential premises for running school shall be overlooked but the court was of the.....
Judgment:

Tewatia, J.

1. This revision petition is directed against the judgment of the trial Court dt. 7-4-1983 granting ex parte injunction and that of the appellate Court dt. 2-8-1983, who dismissed the appeal of the present petitioners against the said order.

2. Facts relevant to the controversy can be stated thus:-

Mr. A. P. Shrihan filed a suit for permanent injunction against Mr. & Mrs. Holkar restraining them from misusing the premises No. 374, Sector 30-A, Chandigarh which were leased out, to them for residential purposes, by running a school therein.

3-4. The petitioners had taken plea that the said premises were used by running a school therein from the very inception of the tenancy to the knowledge of the plaintiff and that by virtue of S. 41(g) of the Specific Relief Act (hereinafter referred to as the Act) the plaintiff cannot be granted any injunction. The plaintiff denied the said averments.

5. The question that was posed before the trial Court and the appellate Court and reiterated in this Court is as to whether the defendant-petitioners herein (hereinafter referred to as the defendants) could take up the plea of acquiescence and thus challenge the jurisdiction of the trial Court to entertain the suit for injunction in view of the provisions of S. 41 of the Act. The trial Court had prima facie come to the conclusion that the premises were given for purposes of residence, that it had been put to a use which was prohibited by the rules and regulations of the Capital of Punjab (Development & Regulation) Act, 1952 and the rules made thereunder and the violation was such as a result of the prohibited use of the premises that the building could be resumed by Chandigarh Administration. The trial Court also observed that even though Chandigarh Administration had taken a policy decision that use of the residential premises for running school shall be overlooked but the Court was of the opinion that such policy decision could not override the statutory provisions.

6. Regarding the raising of plea of acquiescence, the trial Court observed that there can be no estoppel against the statutory rules and regulations and sought support from two single Bench decisions of this Court reported as Mrs. Amarjit Kaur Sandhu v. M/s. Malabar Cane Furniture (1979) 1 Rent LR 732 and Kamal Arora v. Amar Singh (1982) 1 Rent CJ 149.

7. Mr. Bhandari, learned counsel for the petitioners, has canvassed that if it is established that there had been acquiescence on the part of the plaintiff, then the trial Court is precluded from granting injunction in view of the provisions of S. 41 of the Act.

8. There is no dispute with the proposition that the trial Court in the matter of granting of injunction and the entertaining of the injunction suit has to keep in forefront the provisions of S. 41 of the Act. So far as the bar of jurisdiction at the threshold in view of the relevant provisions of S. 41 is concerned, that would arise only where on admitted facts the matter being such that it would attract the relevant provisions of S. 41 prohibiting the grant of injunction. Where such is not the case and one party has raised the plea and the other has denied then the trial Court shall have to give a finding first and then would consider as to whether the relevant provision of S. 41 prohibiting the grant of injunction is attracted or not. But then with the given finding the necessity of grant of interim injunction would not arise as the case would stand finally decided. Hence, we are of the view that provisions of S. 41 of the Act can be attracted at the threshold to cases where there is no dispute in regard to the facts which would attract the application of relevant provision of S. 41 barring the jurisdiction of the Court in regard to the granting of injunction and by implication prohibiting the entertaining of injunction suit in question.

9. In view of the above the question that the trial Court did not have the jurisdiction to try the suit as the defendant had raised the plea of acquiescence does not arise. As regards the other material facts and circumstances which the Court normally takes into consideration while granting or not granting interim injunction, we are of the view that no case is made out for interfering with the discretion exercised by the Courts below. Hence the revision petition is dismissed with no order as to costs.

10. The petitioners pray for one month's time to obey the injunction order. We accede to their request and direct that they shall comply with the injunction order by 26-4-1984.

Surinder Singh, J.

11. I agree.

12. Petition dismissed.


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