V.S. Deshpande, J.
(1) The plaintiff has filed a suit against the defendant for a declaration that it is entitled to put up a cooling tower on the roof of the third floor of the defendant's building and for a mandatory injunction against the defendant to allow the plaintiff and its workmen to go to the roof and construct a cooling tower and maintain it and also a permanent injunction that the defendant is not to interfere with the working of the cooling tower after its construction by the plaintiff. On 8-3-1978 the suit was filed along with I.A. 972 of 1978 for grant of interim injunction without issue of notice to the defendant under order 39 Rule 3, Civil Procedure Code, the principal part of which is as follows :
'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.'
An ex parte interim injunction was granted in favor of the plaintiff on the same date ordering the defendant to allow the plaintiff to construct the cooling tower. Notice of the application was issued for 12th April, 1978, but the defendant appeared on 10-3-1978 and filed IAs 1049 and 1050 of 1978 under Order Xxxix Rule 4 for setting aside the ex parte injunction. The defendant further filed is 1329 of 1978 for protection of his interest against the action of the plaintiff while the plaintiff filed is 1330 of 1978 for clarification, of the order of ex parte temporary injunction already passed by the court. is 1672 of 1978 was then filed by the defendant for restraining the plaintiff from doing its work of operating the cooling tower. The defendant further filed is 2231 of 1978 for a temporary injunction against the plaintiff. It would be seen that the main application, is 972 of 1978, on which the ex parte interim injunction has been issued is the root of the present dispute between the parties. The subsequent applications will stand or fall according as is 972 of 1978 is allowed or dismissed. For, the ex parte order passed against the defendant on 8-3-1978 without n,oticc to it under Order Xxxix Rule 3 is not final. It has to be either confirmed or vacated after notice to the defendant.
(2) Rule 3A of Order Xxxix requires the court to dispose of application for injunction within 30 days and is as follows :
'Where an injunction has been granted without giving notice to the opposite party, the court shall make an endeavor to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do. it shall record its reasons for such inability.'
Rule 4 of Order Xxxix enables the court to discharge or vary a temporary injunction previously granted by it and its material portion is as follows :
'Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order.'
(3) As a vacation Judge, I can entertain only urgent applications. is 2231 of 1978 had to be entertained by me on 19-6-1978 only because of Rule 3A of Order XXXIX. Since the original is 972 of 1978 has to be disposed of finally within, 30 days of the date of making the application, namely, 8-3-1978, and since the said application has not yet been finally disposed of after hearing the parties, I could not refuse to consider the question, whether is 972 of 1978 should be confirmed or dismissed. But for this statutory duty placed upon me, I would not have liked to deal with this case in view of my great respect for my learned brother who is dealing with it on the original side. After notice of is 2231 of 1978 was issued, Shri R. K. P. Shankardas appeared for the plaintiff. It was made clear to the party then, that because of Rule 3 A I was concerned only with the expeditious disposal of is 972 of 1978 and that the arguments would be heard only on that application because other applications are only consequential. Time was granted to the defendant to prepare legal argument. Arguments were heard fully and is 972 of 1978 is disposed of as below for the reasons to be stated hereafter. Meaning of 'the delay' in Rule 3 :
(4) It is mandatory on the court in considering an application for temporary injunction to issue notice to the opposite party invariably subject only to one exception. It is only when delay that would be caused by the issue of the notice and the time given to the opposite party to show cause why temporary injunction should not be granted would defeat the very object of the granting of the injunction that the injunction may be issued without notice ex parte. The requirements of the proviso to Rule 3 would thereafter have to be complied with. is 972 of 1978 was made on 8-3-1978. It says that the summer was fast approaching, meaning thereby that the summer had not already set in. It merely says that if the cooling tower is not fixed the expenditure incurred by the plaintiff would be wasted. It then says that the ex parte injunction should be granted without notice to the opposite party because the object of granting the injunction would be defeated by 'delay'. It is significant that the words used in Rule 3 are 'the delay', while the word used in the application is 'delay'. The difference is clear. Notice can be dispensed with only if the delay caused by the issue of the notice would defeat the object of granting injunction. This' is so when the status quo would be irrevocably changed during the time that will be required to serve the notice and call the opposite party to court. For instance, a building may be demolished or a person may lose his job before the notice is served and the opposite party is called to the court. On the other hand, it is not the meaning of Rule 3 that notice should be dispensed with merely because the object of granting injunction would be defeated by 'delay' meaning thereby that if the application is not considered early enough its object may be defeated. The plaintiff did not, thereforee, make the necessary allegation under order Xxxix Rule 3 an,d was not entitled to the grant of an ex parte injunction. The notice issued on 8-3-1978 brought the defendant to the court on 10-3-1978 with applications' for vacating the ex parte temporary injunction. It could not be said that the delay of two days could have defeated the object of granting injunction. There was no danger at all of changing the status quo or irreparable harm being caused to the plaintiff by the delay which would be caused in issuing the notice and getting the defendant served. Even, if the cooling tower would have been constructed two weeks or more after the application no irreparable harm would have been caused to the plaintiff. Moreover changing the status quo and granting a positive relief to the applicant as distinguished from a preventive relief which is usually asked for in a temporary injunction was far beyond the scope of Rule 3 and the plaintiff did not show any justification for such an ex parte relief in his is 972 of 1978. The plaintiff obtained ex parte injunction from the court on 8-3-1978 by deliberately misquoting the words of Rule 3 and making it appear to the court that ex parte injunction can be granted merely because the object of injunction would be defeated by any delay though the plaintiff knew that this was not the meaning of Rule 3. This was suppressio veri and suggestio falsi. The plaintiff nowhere stated that the few days time which would be taken for the service of notice would defeat the object of granting the injunction. The plaintiff's application in so far it resulted in obtaining the ex parte injunction deserves to be dismissed firstly on the ground that it did not fulfill the requirements of Rule 3. Order Xxxix Rule 2 and prima facie case :
(5) The defendant is the owner of Doon Apartments which are flats sold by it to various persons. Some of these flats have been taken on lease from the respective owners by the plaintiff. There is a written agreement between the defendant and the purchasers of the flats. Clause Ii of the agreement expressly states that the buyer of the flats shall have 'no claim, right, title or interest of any nature or kind over or in respect of all or any open spaces, lobbies, stair cases, lifts, terraces, roofs, basement and ground floor, etc. which shall remain the property of the Promoters' (defendant). The plaintiff succeeded to the rights and liabilities of the flat owners under this agreement when he took some of the flats in this building on lease. In para 5 of the plaint, the plaintiff states' that 'before taking the premises on rent' it had contacted the defendant who told the plaintiff that the defendant would be glad if the plaintiff put up the cooling tower after taking the flats on lease. The plaintiff further says that after the concurrence and undertaking from the defendant the plaintiff took the flats on lease. The claim of the plaintiff most favorably interpreted has thus a two-fold basis (1) the oral agreement with the defendant that the plaintiff would be allowed to use the roof for putting up a cooling tower, and (2) that the plaintiff relied on, the said oral agreement and spent money in taking the flats on lease and the defendant is estopped from going back on the said oral agreement Section 92 of the Evidence Act :
(6) The defendant has resisted the plaint of the plaintiff for grant of injunction on the ground that the alleged oral agreemen,t is expressly contrary to clause Ii of the written agreement which binds the parties. Its proof is, thereforee, barred by section 92 of the Evidence Act which is as follows:
'When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between, the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.'
(7) The contention is clearly supported by section 92 and must be upheld. The only exception to the rule laid down in section 92 relevant to the facts of the present case is proviso (4) to section 92. which is as follows :
'The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.'
The plaintiff has, however, disabled itself from taking advantage of proviso (4) because the oral agreement pleaded by it is not subsequent to the written agreement, but is prior to it. For, the plaintiff became a successor-in-interest of the flat owners only when it took the flats on lease. The written agreement between the defendant and the flat owners became binding on the plaintiff only from the date or dates on which it took the flats on, lease. Before that the plaintiff was not a party to the written agreement. Hence, the oral agreement alleged by the plaintiff must be regarded as being prior to the written agreement and, thereforee, not covered by proviso (4).
(8) The letter, dated 10-10-1977, by the defendant in favor of the plaintiff says as follows : 'We have no objection to your applying to the Desu for electric loan required for air-conditioning plant'. It may also be presumed in favor of the plaintiff that an air-conditioning plant included a cooling tower also. The defendant thus allowed the plaintiff to seek from the Desu more electric power to install an air-conditioning plant and the cooling tower. The plain,tiff wants the court to infer from this letter that the defendant must have agreed to allow the plaintiff to use the roof for putting up a cooling tower. Such an inference cannot be drawn for the following reasons. Firstly, section 92 bars the proof of the oral agreement that defendant had agreed to allow the plaintiff to put up a cooling tower on the roof since such oral agreement is contrary to clause Ii of the written agreement. Secondly, the plaintiff does not say that any consideration was agreed between, the parties to support the oral agreement pleaded by the plaintiff. Under the Indian Contract Act consideration is essential if the agreement is to be valid. If there is no agreement as to consideration then the agreement is void for uncertainty in view of section 29 of the Contract Act. Is the agreement capable of being made certain so that it may not become void under section 29 The plaintiff does not allege that any provision was made between the parties for determining the consideration for the agreement. It was not, thereforee, an agreement, which was capable of being made certain. The plaintiff avers in para 11 of the plaint that it would abide by the orders of the court whether any rent is payable at all or keeping in view the provisions of the Rent Control Act as to what should be the rent of the space occupied by the water cooling tower. If by this the plaintiff means that the rent for the cooling tower can be fixed by the court, it is much mistaken. Firstly, there is no relationship of landlord and tenant between the defendant and the plaintiff. Secondly, no ten,ancy between the two is alleged to exist by the plaintiff. Lastly, neither a civil court nor the Rent Controller has any power to fix rent when there is no relationship of landlord and tenant and no allegation that the tenancy was created.
(9) The agreement thus remains an agreement which is without consideration and the consideration of which is not capable of being determined. It is, thereforee, not only void for uncertainty under section 29, but is also void for lack of consideration under section 25 of the Contract Act. Section, 23 of the Contract Act is as follows :
'The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law ; or is fraudulent; or involves or implies injury to the person, or property of another; or the court regards it as immoral, or opposed to public policy. in each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void.'
It is significant that the second sentence of section 23 refers to an agreement which is of such nature that 'if permitted' it would defeat the provision of any law. The meaning of the words 'if permitted' is wide. Any manner of permitting the operation of such an agreement is covered by it. If the oral agreement pleaded by the plaintiff is allowed to be pleaded and enforced by the court, then it would be hit by the words 'if permitted'. Such an agreement is void because if permitted it would defeat the provision of section 92 of the Evidence Act. Section 115 of the Evidence Act is as follows :
'When one person, has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither her nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.'
Shri R. K. P. Shankardass devoted most of his argument to the plea that the defendant is estopped from denying the truth of the representation made by the defendant that it would allow the plaintiff to correct a cooling tower on the roof. The plea of estoppel suffers from following vital defects.
(10) Both sections 92 and 115 are provisions of the same Evidence Act. They have to be read together. It could not be intended by the legislature that one was to prevail over the' other. The law is well established that while section 115 in its breadth includes an oral as well as a written representation, it cannot be invoked to support an oral representation when the law either bare the proof of oral representation or requires only a written representation to be valid. For instan,ce, section 16(3) and section 17(1) of the Delhi Rent Control Act, 1958 require a written consent of the landlord to validate a subtenancy. It is well settled that a plea of oral consent of the landlord is not enough for the purpose and the sub-tenancy would not be validated by it. Section 115 of the Evidence Act does not help to validate an oral sub-tenancy and override the contrary provisions of the Delhi Rent Control Act. For the same reason, if section 92 bars the proof of oral agreement to vary or contradict terms of a written agreement, section 115 of the same Act cannot permit such evidence to be adduced. Reading the two sections together the effect is to exclude the plea of estoppel when the proof of the oral agreement on, which the estoppel is based would be contrary to the provisions of any law. Section 115 of the Evidence Act would apply only when the representation is in writing, but would not help when it is oral in the face of section, 92.
(11) Shri Shankardas relied upon two decisions to argue that section 115 overrides section 92 of the Evidence Act (1) The Dominion of India v. Ram Rakha Mal & Sons, . In spite of wrong statement in the Air head note about 'a contemporaneous oral agreement' a perusal of the decision, shows that there was no such contemporaneous oral agreement between the parties to the litigation. The modification of the written agreement, if any, was made by the correspondence between the parties and their conduct both of which were subsequent to the written agreement and were, thereforee, not forbidden by section 92. The gist of the decision is stated in the following words in paragraph 6 : 'It may be that the written contract cannot be modified by oral agreement, but it is open to a party by its conduct or by oral assurances to induce the other party into believing that the contract need not be performed in accordance with the written terms of the contract'. This decision is cited in Sarkar's Evidence Act, 12th Edition, page 822, under the heading, 'modification or variation of written con,tract by equitable principle'. It is not cited for the proposition that a contemporaneous oral agreement can be proved to contradict a written agreement between the same parties. Secondly, the oral assurances by the military authorities was not contemporaneous with the contract, but was subsequent to it. It may, thereforee, be helped by proviso (4) to section 92. This decision does not support the proposition that a contemporaneous oral agreement can contradict a written agreement between the same parties in view of section 115 and despite section 92.
(12) (2) Dhanna Ram v. Chhabil Das (1923) 72 Ind Cas 931. This decision is cited by Sarkar (ibid 789) under the heading 'Evidence of conduct, surrounding circumstances, etc. to show real character Of transaction'. It is not cited for the proposition that a contemporaneous oral agreement can contradict a written agreement between the same parties. The learned Judicial Commissioner of Peshawar who gave that decision in. 1923 also holds on page 955 as follows: 'I uphold the view taken by the two courts below that no evidence is admissible to show that the parties intended a sale and not a mortgage by the transaction of September 1888, except in so far as it can be shown that the plaintiffs or their predecessor-in-interest allowed the defendants to believe that the transaction was a sale and to act on that belief.' The estoppel pleaded in that case was also estoppel by conduct and not estoppel by representation. The observation of the learned Judge reproduced below must, thereforee, be understood as relating to estoppel by conduct and not by representation :
'It appears to me that section 92 must be read with sections 91, 93 and 94. It is difficult to see how the extreme view that, (1) evidence of conduct is admissible to show that the agreement between the parties was not the same as that shown in a deed, and (2) that once such a position is established parties may produce evidence to show what the subsisting agreement really was, can override the clear provisions of the Evidence Act. It is perfectly intelligible that conduct is relevant when such conduct operates as an estoppel. Section 115 of the Evidence Act may no doubt override sections 91 to 94 because the law of estoppel is one which must prevail against a rule of procedure only. If a person has by this act permitted the other party to believe that the agreement was other than that embodied in the document and has caused him to act upon that belief he cannot fall back upon the provisions of section 92 and thereby escape from the consequences of his own actions. But this is a very different thing from holding that when such conduct does amount to an estoppel it may be proved in evidence in order to show that the intention of the parties was something other than that expressed by them in the written document. If the written document is perfectly dear in its terms and applies to existing facts, evidence to show that it was not meant to apply to such facts is distinctly excluded by section 94 of the Evidence Act.'
Sections 92 and 114 of the Evidence Act :
(13) Both of these are provisions of the same Evidence Act. It is wrong to suppose that the latter is substantive law, while the former alone is procedural law. If the two are read together, both can operate. There is nothing in section 115 to show that it overrides section 92. Exceptions to section 92 are already laid down by the provisos to it. There is no warrant to carve out another exception to it by saying that an oral representation must be allowed to be proved in spite of section 92 because section 115 allows it to be proved. It is not the purpose of section 115 to state what can be proved and what cannot be proved. Section 115 naturally includes an oral as also a written representation because its purpose is to indicate the total dimensions of a representation whether oral or by conduct. On the other hand, the only purpose of section 92 is to exclude oral evidence contrary to written agreement. It is a special provision, while section 115 is a general provision. Section 92 must, thereforee, be read into section 115 and when oral evidence cannot be admitted section 115 would be read subject to the bar of section 92. No Estoppel against Statute:
(14) Whatever is stated in a statute cannot be negatived by a pleading moral agreement contrary to it. The principle is that there is no estoppel against a statute. This principle has been laid down by the Supreme Court in Faqir Chand v. Ram Ratan Bhanot : 3SCR454 , in an appeal from a decision of a Division Bench of the Delhi High Court, to which I was a party. It may also be respectfully pointed out that subsequent to the deeision, the Supreme Court reviewed the decision by its order dated 26th March, 1973 whereby most of paragraph 15 and the first sentence of paragraph 16 were deleted and the rest of paragraph 16 was modified. It is clear, thereforee, that no estoppel can be pleaded against the statutory bar of section 92 of the Evidence Act.
(15) Order Xxxix, Rule 2 would help the plaintiff only if the plaintiff would make out a prima facie case that the defendant was committing a breach of contract or an injury of the like kind arising out of the contract or relating to the property or right in dispute. Unfortunately for the plaintiff, section 92 bars the proof of the oral contract pleaded by him. The relief which can be given in order Xxxix Rule 2 is essentially a preventive relief. The words 'temporary injunction to restrain the defendant from committing a breach of contract' used in Rule 2 do not mean a mandatory injunction against the defendant ordering him to specifically perform the contract. In Union of India v. Raman Iron Foundry. : 3SCR556 , the question before the Supreme Court related to the exercise of the power of granting a temporary injunction on the principles of order Xxxix given to the court by section 41(b) of the Arbitration Act. The temporary injunction granted by the High Court restrained the Government from effecting recovery of the amounts claimed to be due from the other pending bills of the respondent. The Supreme Court pointed out that this negative injunction could not mean a positive order to the Government to pay the amounts claimed to be due on the bills. In paragraph 6 of the judgment the court construed the meaning of the said temporary injunction as follows :
'The question whether any amounts were payable by the appellant to the respondent under other contracts was not the subject-matter of the arbitration proceedings. The court obviously could not, thereforee, make an interim order which, though ostensibly in form an order of interim injunction, in substance amounted to a direction to the appellant to pay the amounts due to the respondent under other contracts. Such an interim order would clearly not be for the purpose of or in relation to the arbitration proceedings as required by section 41(b). But here the order of interim injunction made by the learned Judge does not, expressly or by necessary implication, carry any direction to the appellant to pay the amounts due to the respondent under other contracts. It is not only in form but also in substance a negative injunction. It has no positive content. What it does is merely to injunct the appellant from recovering, suo motu, the damages claimed by it from. out of the other amounts due to the respondent. It docs not direct that the appellant shall pay such amounts to the respondent. The appellant can still refuse to pay such amounts if it thinks it has a valid defense and if the appellant does so, the only remedy open to the respondent would be to take measures in an appropriate forum for recovery of such amounts where it would be decided whether the appellant is liable to pay such amounts to the respondent or not. No breach of the order of interim injunction, as such would be involved in non-payment of such amounts by the appellant to the respondent. The only thing which the appellant is interdicted from doing is to make recovery of its claim for damages by appropriating such amounts in satisfaction of the claim. That is clearly within the power of the court under section 41(b) because the claim for damages forms the subject matter of the arbitration proceedings and the court can always say that until such claim is adjudicated upon, the appellant shall be restrained from recovering it by appropriating other amounts due to the respondent. The order of interim injunction made by the learned Judge cannot thereforee be said to be outside the scope of his power under section 41(b) read with the Second Schedule.'
For the same reason under Rule 2 the plaintiff cannot say that in the garb of preventing the defendant from committing a breach of contract, the court should actually compel the defendant to specifically to perform the alleged contract.
(16) Since temporary injunction is essentially an interim relief pending the decision of the case on merits, ordinarily it has to be a preventive relief and not a positive and mandatory direction to the defendant to do something or to enable the plaintiff to do something on the property of the defendant. Its object is to maintain the status quo and not to alter the status quo particularly when the injunction is granted ex parte and without notice to the defendant. I am of the view, thereforee, that under Order Xxxix Rule 2, there is no prima facie case in favor of the plaintiff on the strength of which it is entitled to a temporary injunction much less an ex part'temporary injunction. Order Xxxix Rules 3A and 4
(17) By the time limit imposed on me by Rule 3A I am constrained to deal with is 972 of 1978 both under Rule 3A and Rule 4. I have already stated that the plaintiff had not complied with the conditions of Rule 3 which alone could entitle him to get an ex parte temporary injunction. I, thereforee, dismiss is 972 of 1978, firstly on the ground that it did not comply with Rule 3 and also because I am constrained to dispose of it finally because of Rule 3A.
(18) Considering the same is 972 of 1978 as one to be decided after notice to the defendant and after hearing full arguments of the parties. I am of the view that only the principal part of Rule 4 applies to it. It may be made clear that the second proviso to Rule 4 does not apply to the application because ex parte injunction issued on it was not issued after notice to the defendant. It is not, thereforee, necessary that there should have been any change of circumstances after the grant of the said injunction before it could be discharged or varied under Rule 4. For the reasons given above, I am of the view that there is no prima facie case for the grant of temporary injunction and is 972 of 1978 is, thereforee, dismissed. Irreparable Injury
(19) Normally under Order Xxxix Rule 2 the plaintiff has to prove that irreparable injury would be caused to him unless a temporary injunction was granted and that the court should not wait till the final decision before granting an injunction. It is not shown in this case what irreparable injury would have been caused to the plaintiff if the temporary injunction had not been granted. It is not stated that Doon Apartments were so built that they could not be used except after being centrally air-conditioned. In fact, it is admitted that only some of these apartments are taken on lease by the plaintiff. It is averred by the defendant that provision has been made in the building for fixing air-conditioners to individual rooms in the said building. It cannot be said, thereforee, that unless and until a centrally air-conditioning plant and the cooling tower are allowed to be operated by the plaintiff an irreparable injury would be caused to him. The defendant has objected only to the installation of the cooling tower. It may be that a cooling tower is essential to operate an air-conditioning plant. But, it cannot be said that the non-operation of the centrally air-conditioning plant would cause an irreparable injury to the plaintiff when it is not shown that the building taken on lease by it cannot be used with ordinary air-conditioners, coolers or fans or the breeze coming through the windows. At any rate. the rigour of the summer is now broken by the rains and before the next summer sets in no such irreparable injury to the plaintiff is apprehended if the cooling tower is not allowed to operate. It is to be hoped that the suit would be finally decided before the next summer. Balance of Convenience
(20) The last consideration is on which side lies the balance of convenience. Shri Shankardas argued that no harm is caused to the defendant if the cooling tower is allowed to remain as it is. But the balance of convenience is to be seen as at the time before the temporary injunction was granted. At that time the status quo was that the cooling tower was not erected on the roof of the defendant. The balance of convenience goes normally with the maintenance of status quo. It was, thereforee, in favor of maintaining the status quo. It is not shown how it could be in favor of forcing the defendant to allow its terrace to be used by the plaintiff for the erection of the cooling tower by changing the status quo.
(21) Since non,e of these requirements for the grant of temporary injunction is satisfied, is 972 of 1978 is dismissed with costs. The ex parte temporary injunction dated 8-3-1978 is vacated and status quo before 8-3-1978 is restored. The other interim applications have arisen only because of the temporary injunction granted on 8-3-1978. Since this has been vacated, the other applications have become infructuous and are dismissed as such. The plaintiff ceases to have any right to keep the cooling tower on the roof of the defendant and is allowed a week to remove the same. The defendant is left free to avail himself of the remedies under section 95, Civil Procedure Code. The defendant is also entitled to apply for restitution under section 144, Civil Procedure Code Binayak Swin v. Ramesh Chandra Panigrahi, : 3SCR24 , if necessary.