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Ramji Lal Mahindar Kumar Vs. Naresh Kumari and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberC.R. 981 of 1981
Judge
Reported inAIR1984Delhi95; 24(1983)DLT100; 1983RLR381
ActsCode of Civil Procedure (CPC) - Sections 115 - Order 1, Rule 10 - Order 6, Rule 17 - Order 39, Rules 1 and 2
AppellantRamji Lal Mahindar Kumar
RespondentNaresh Kumari and anr.
Appellant Advocate V.B. Andley and; Rajinder Mathur, Advs
Respondent Advocate G.D. Rattan, ; G.N. Aggarwal and ; R.L. Gupta, Advs.
DispositionRevision allowed
Cases ReferredIn Smt. Akhtar Begum v. Jamshed Munir
Excerpt:
a) the case focused on the application filed under order 6 rule 17 and order 1 rule 10 of the civil procedure code, 1908, for leave to amend the plaint - by way of amendment, addition of firm as the plaintiff was being sought - it was ruled that the amendment would be permitted, as it would be necessary for purpose of determining the real question in disputeb) the case focused on the application filed under order 39 rule 1 and 2 of the civil procedure code, 1908, for grant of temporary injunction, in restraining the respondents from dispossessing them from the shop and the roof - it was observed that the plaint had disclosed the cause of action -further, the balance of convenience was in favor of the plaintiff, the plaintiffs were prima facie in possession of the shop and it was also.....sultan singh, j.1. this revision petition under section 115 of the code of civil procedure (for short 'the code') is directed against the judgment and order dismissing the petitioners' application for grant of temporary injunction. the other revision petition (c.r. 288 of 1982) is directed against the judgment and order dismissing their application for leave to amend the plaint. this judgment will dispose of the two revision petitions.2. the registered partnership firm ramji lal mahinder kumar, plaintiffs-petitioners above named, on 24th january, 1981 filed a suit for permanent injunction against smt. naresh kumari sharma (respondent-defendant no. 1) and m/s. bhagwan dass jagan nath, (respondent-defendant no. 2). the plaintiffs have alleged that the firm ramji lal mahinder kumar has been.....
Judgment:

Sultan Singh, J.

1. This Revision Petition under Section 115 of the Code of Civil Procedure (for short 'the Code') is directed against the judgment and order dismissing the petitioners' application for grant of temporary injunction. The other Revision Petition (C.R. 288 of 1982) is directed against the judgment and order dismissing their application for leave to amend the plaint. This judgment will dispose of the two revision petitions.

2. The registered partnership firm Ramji Lal Mahinder Kumar, plaintiffs-petitioners above named, on 24th January, 1981 filed a suit for permanent injunction against Smt. Naresh Kumari Sharma (respondent-defendant No. 1) and M/s. Bhagwan Dass Jagan Nath, (respondent-defendant No. 2). The plaintiffs have alleged that the firm Ramji Lal Mahinder Kumar has been tenant in the shop along with roof bearing Municipal No. 635, Chandni Chowk, Delhi, that the building is a single storeyed building and plaintiffs have been using the said shop and the roof for the last more than 38 years, that defendant No. 1 approached for enhancing the rent from Rs. 130/- to Rs. 200/- but they refused, and defendant No. 1 in collusion with defendant No. 2 threatened to take possession of the open roof by force and to raise unauthorised construction over the roof and thus prevent the plaintiffs from the use of the tenanted portion without any just, and sufficient cause, that the property bearing Municipal Nos. 634-635 is a composite property under the Evacuee Interest (Separation) Act 1951, that defendant No. 1 has no right, title or interest in the property and that the plaintiffs approached the defendants not to interfere with their possession of the shop and roof. The plaintiffs thus prayed for an injunction restraining the defendants from taking forcible possession of the shop and the roof otherwise than in due course of law and from causing any interference in their peaceful use and enjoyment of the tenanted premises in any manner whatsoever. An application under Order 39 Rules 1 and 2 of the Code for grant of temporary injunction restraining the defendants from taking forcible possession of the said shop and roof and from raising any construction on the said roof was also made. On 24th January, 1981 an ex-parte injunction was issued restraining the defendants from dispossessing the plaintiffs from the roof and from raising any construction on the roof of premises No. 635, Chandni Chowk, Delhi till further orders. The trial Court had also appointed a Local Commissioner to inspect the roof in question and to report about the existing position and possession. The Local Commissioner inspected the premises on 24th January, 1981 at 5 P.M. He has reported that the roof over shop Nos. 634 and 635 is vacant and can be used by the occupants of shop No. 633 as the door of the structure above his shop opens towards the connected roofs of shop Nos. 634 and 635, and that the door of property No. 636 also opens towards the roof of property No. 635.

3. The defendants filed their separate written-statements on 18th February, 1981. Defendant No. 1 has pleaded that plaintiffs' firm Ramji Lal Mahinder Kumar was not her tenant, that 'M/s. Ramji Lal Tirlok Chand' has been her tenant in shop No. 635, Chandni Chowk, Delhi but the said firm has not been a tenant with regard to the roof over the shop, that the other two shops No. 634-A and 634-B Chandni Chowk, Delhi are in occupation of other tenants under her, that there has been a room on the roof of shop Nos. 634-A, 634-B and 635 in continuous use of defendant No. 2, and the first floor of the aforesaid shops was let to defendant No. 2 for which rent receipts were issued and a formal agreement of letting was executed, that she has every right to let the first floor and has rightly let to defendant No. 2, that the plaintiffs have demolished the structure over the said roof.

4. The defendant No. 2 in his written-statement has pleaded that there has been a room on the roof of shops No. 634-A, 634-B and 635 for the last several years, that defendant No. 1 let the structure and the roof on first floor to defendant No. 2, that from 12th August, 1980 defendant No. 2 has been holding the aforesaid portion as tenant under defandant No. 1 at Rs. 120/- per month, that the plaintiffs along with associates had tried to forcibly dispossess defendant No. 2 and had demolished the structure on the first floor with respect to which a police report was lodged. It has been denied by both the defendants that the plaintiffs have been using the roof above the shop for the last 38 years.

5. The main defense of the two defendants is that plaintiffs' firm Ramji Lal Mahinder Kumar is not tenant, that a firm M/s. Ramji Lal Tirlok Chand has been a tenant with respect to shop No. 635 Chandni Chowk, Delhi only, that the roof above the said shop has not been under the tenancy, that defendant No. 1 let out the open roof to defendant No. 2, that there had been a structure over the roof which has been demolished by the plaintiffs.

6. On 19th February, 1981 the plaintiffs filed an application under Order 6 Rule 17 read with Order 1 Rule 10 of the Code for leave to amend the plaint praying that the firm M/s. Ramji Lal Tirlok Chand HUF tenant of shop No. 635 under defendant No. 1 be allowed to be added as co-plaintiff No. 2, besides other consequential amendments. The application for amendment was made in view of the objection of defendant No. 1 that the firm M/s. Ramji Lal Tirlok Chand was tenant under her. The partners of the plaintiffs, firm Ramji Lal Mahinder Kumar are six who are sons of Ramji Lal. By an application dated 26th February, 1981 the plaintiffs requested that application for leave to amend be decided before disposing of the application for grant of temporary injunction. The trial Court however, did not do so.

7. The trial Court dismissed the plaintiffs' application for grant of temporary injunction on 2nd March, 1931 holding that the plaint did not disclose any cause of action against defendant No. 2, that there was no stair case in the shop No. 635, that there was no contract of lease regarding roof and thereforee, the defendant No. 1 had a right to use the roof, and the plaintiffs, have no prima facie case. The first appellate Court, dismissing the appeal by judgment dated 23rd September, 1981 has held that plaintiffs have not placed any document to show that the roof was included in their tenancy, that the plaintiffs have no prima facie case. The plaintiffs have challenged the orders refusing to grant temporary injunction by this revision.

8. The application under Order 6 Rule 17 read with Order 1 Rule 10 of the Code was dismissed on 11th February, 1982 by the trial Court. The Court has held that the application is not maintainable, that the suit was instituted in the wrong name having no locus standi and such a defect cannot be removed by amendment or addition of parties, that this is not a case of misdescription of plaintiffs, that if M/s. Ramji Lal Tirlok Chand had any cause of action, the application ought to have been filed by that firm. The plaintiffs have also challenged the order refusing leave to amend the plaint in C.R. 288 of 1982.

9. The learned counsel for the plaintiffs submits that the two orders refusing to grant temporary injunction and dismissing the application for leave to amend are in violation of all principles of law, that the Courts below have decided the application for temporary injunction without considering well established principles of law for the grant of temporary injunction, i.e. (i) whether the plaintiff has a prima facie case i.e. a case which requires serious consideration or investigation, (ii) whether irreparable injury would be caused to plaintiff in case of refusal of temporary injunction, and (iii) whether the balance of convenience is in favor of the plaintiffs. He further submits that the trial Court has also failed to follow well known principles for the grant of leave to amend the plaint. He thereforee, submits that the Courts below in the exercise of jurisdiction acted 'illegally' and in any case with 'material irregularity' and as such the orders are liable to be set aside under Section 115 of the Code.

10. The plaintiffs M/s. Ramji Lal Mahinder Kumar have alleged that they are tenants in the said premises under defendant No. 1. The defendant No. 1 in her written-statement pleaded that plaintiff's firm was not tenant but another firm known as 'M/s, Ramji Lal Tirlok Chand was her tenant. The plaintiffs immediately filed the application to implead the firm Ramji Lal Tirlok Chand and admitting that rent receipts have always been issued by defendant No. 1 in favor of Ramji Lal Tirlok Chand. The plaintiffs thereforee, sought leave to amend the plaint for impleading the said firm as plaintiff No. 2 with necessary consequential amendments. The case of the plaintiffs in the application for leave to amend is that M/s. Ramji Lal Tirlok Chand a Hindu undivided family constituted by Parshotam Lal, Tirlok Chand, Mahinder Kumar, Narinder Kumar, Harish Ghand and Gauri Shanker, all sons of Ramji Lal and Asharfi Devi widow of Ramji Lal became tenant under defendant No. 1 in respect of premises No. 635, Chandni Chowk, Delhi. That the Ramji Lal Tirlok Ghand HUF owned a cloth business known as Ramji Lal Mahinder Kumar carried on in the suit shop, that in a partial partition of the HUF in 1967 the business under the name and style of Ramji Lal Mahinder Kumar was allotted to the said six sons of Ramji Lal who formed themselves into a partnership in terms of the two deeds dated 10th July, 1967 and 16th February, 1971, that for all intents and purposes M/s. Ramji Lal Mahinder Kumar are also tenants in the suit premises though rent receipts are issued in the name of M/s. Ramji Lal Tirlok Chand only.

11. The learned counsel for the petitioners submits that the tenancy was in favor of M/s. Ramji Lal Tirlok Chand HUF and the joint family consisted of Ramji Lal, his six sons and his wife. Ramji Lal died in 1962. The six sons of Ramji Lal are partners of the firm M/s. Ramji Lal Mahinder Kumar. He submits that the partners of the firm Ramji Lal Mahinder Kumar along with their mother are members of the HUF Ramji Lal Tirlok Chand. He also submits that the six sons who are partners and members of the HUF have a right to institute suit in the name of M/s. Ramji Lal Mahinder Kumar under Order 30 Rule 1 of the Code but as the defendant No. 1 denies the relationship of landlord and tenant, it is desirable to implead M/s. Ramji Lal Tirlok Ghand HUF as plaintiff No. 2. The assessment order dated 18th February, 1961 for the assessment year 1960-61 pertaining to Ramji Lal Karta shows that firm Ramji Lal Tirlok Ghand is HUF, that the HUF Ramji Lal Mahinder Kumar came into existence in June 1958 and its income was taxed as income of Ramji Lal Karta. The order dated 25th July, 1964 of the Assistant Controller of Estate Duty, New Delhi shows that Ramji Lal died on 1st September, 1962, that he was a member of HUF and he did not possess any property in his individual capacity. The partnership deeds executed between the six sons of Ramji Lal dated 10th July, 1967 and 16th February, 1971 and the deed of partial partition dated 9th July, 1967 are on record. The learned counsel submits that a firm is not a legal entity. Institution of the suit in the name of M/s. Ramji Lal Mahinder Kumar means institution by six sons of Ramji Lal as plaintiffs. He submits that addition of the firm M/s. Ramji Lal Tirlok Ghand HUF as plaintiff No. 2 would not change the nature of the plaint.

12. The well settled rule is that all amendments should be permitted as may be necessary for the purpose of determining real question in controversy between the parties, unless by permitting the amendment injustice may result to the other party. In the instant case the dispute is who is the tenant under defendant No. 1 with respect to property No. 635, Chandni Chowk, Delhi. According to defendant No. 1 the tenant is the firm M/s. Ramji Lal Tirlok Chand. This fact is admitted by the plaintiffs. They however, submit that the HUF consists of the six sons and their mother. I do not appreciate how the trial Court held that the present application was not maintainable. It is also incorrect to say that suit was instituted in wrong name. As already stated the partners of the plaintiffs' firm Ramji Lal Mahinder Kumar are also members of the HUF. In Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon' : [1970]1SCR22 it has been observed as under :--

'However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.'

In Ganesh Trading Co. v. Moji Earn : [1978]2SCR614 it has been observed as under :

'Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really an issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.'

Similar observations have been made in Harcharan v. State of Haryana : AIR1983SC43 .

13. In the instant case the written-statement was filed on 18th February, 1981 pleading that firm M/s. Ramji Lal Tirlok Ghand was tenant and the application for amendment was made on 19th February, 1981. Addition of firm M/s. Ramji Lal Tirlok Chand as plaintiff No. 2 is necessary for determining the real question in controversy between the parties. M/s. Ramji Lal Tirlok Cahnd is tenant under defendant No. 1 The further question for determination would be, whether the firm is tenant with respect to roof also.

14. The object of the rule for allowing amendments is to avoid multiplicty of suits. This was a proper case in which the trial Court ought to have granted leave to amend the plaint as proposed and no prejudice would be caused to the defendants. If the application for amendment is disallowed the plaintiffs under the name of M/s. Ramji Lal Tirlok Chand HUF would have to bring another suit. The object of the rule for amendment would thus be frustrated. In Nichhalbhai Vallabhai and Ors. v. Jaswantlal Zinabhai and Ors., : AIR1966SC997 it has been observed that to avoid multiplicity of suits amendment should be allowed.

15. Order 1 Rule 10 of the Code reads as under :--

' 10. (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the 'Indian Limitation Act, 1877, Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.'

Under Sub-rule (1) or (2) it is not necessary that any application for addition of a person to a suit should be made by that person. Any person who ought to have been joined as a party to the suit or whose presence before the Court is necessary to adjudicate upon the question involved in the suit, can be added by the Court even without the application of any party to the suit. The observation of the trial Court that the firm Ramji Lal Tirlok Chand ought to have moved the application is thus contrary to law. I am thus of the opinion that the trial Court was not correct in refusing leave to amend the plaint as proposed. The C.R. 288 of 1982 is thereforee, allowed and the impugned order dated 11th February, 1982 dismissing the application for leave to amend is set aside and the plaintiffs are granted leave to amend the plaint as proposed in their application dated 19th February, 1981.

16. Now the next question is : whether a temporary injunction restraining the defendants from interfering with the possession of the plaintiffs with respect to the shop and the roof and further restraining them from raising any structure on the roof of shop No. 635, Chandni Chowk, Delhi should be issued. The Courts below have not applied correct principles of law for the grant of temporary injunction. They have held that the plaintiffs have no prima facie case. It has been observed that no prima facie evidence has been placed on record to show that the roof was included in the tenancy. It has also not been determined whether the balance of convenience is in their favor and whether irreparable injury would be caused to the plaintiffs. This is not a correct approach. All the three aspects of the matter should be considered before granting or refusing an application for temporary injunction.

17. The entire plaint has been read. The plaint discloses a cause of action against both defendants. The case of the plaintiffs is that they are tenants in shop including roof, that defendant No. 1 approached for enhancement of rent which they refused and the defendant No. 1 in collusion with defendant No. 2 started harassing them with a view to raise structure and dispossess them from the roof.

18. The disputed question is : whether the roof over shop No. 635 is included in the tenancy of the plaintiffs. If it is included the defendant No. 1 would have no right to let out the roof to defendant No. 2 and the defendants would not be entitled to raise any structure on the roof. The pleadings of the parties raise disputed questions which require serious consideration and investigation. The plaintiffs cannot be non-suited at this stage by refusing to grant injunction prayed for.

19. The building in question is a single storeyed building. The predecessor of defendant No. 1 had previously filed a writ petition. It is obvious from the writ proceedings that a single storeyed building was owned by one Mr. Lappur Chand who had created mortgages. This property was sold for recovery of mortgage money. One of the mortgagees was a Muslim and after his death some of his heirs migrated to Pakistan with the result that the property in question became a composite property under the Evacuee Interest (Separation) Act, 1951 and the dispute under the Act has not been settled as yet. It however, appears that the predecessor of defendant No. 1 had purchased mortgaged property in a Court auction subject to liability of the mortgage in favor of the Muslim mortgagee. It is not necessary to decide these disputed questions at this stage. It is however admitted that defendant No. 1 is the landlady and the firm M/s. Ramji Lal Tirlok Ghand is tenant. As the building is a single storeyed building the presumption is that the roof is included in the shop. The building as one unit was mortgaged. This unit included the open roof over the shop. The predecessor of defendant No. 1 gave a bid with respect to the single storeyed building i.e. one unit. Roof alone has never been used or dealt with at any time either by defendant No. 1 or her predecessor Mr. Lappur Ghand. Nothing has been brought to my notice to show that the roof has ever been used independent of the shop by or on behalf of defendant No. 1 or her predecessor except the plea of defendant No. 1 that the roof was let out in October, 1980 to defendant No. 2 which fact is emphatically disputed by the plaintiffs. The Courts below have held that it is for the plaintiffs to prove that the roof was included in their tenancy. It is a wrong approach. Admittedly there is no rent deed produced by either side. The petitioners are in occupation of the single storeyed building. Roof is a part of the building especially when it is one storeyed and in absence of any contract to the contrary the initial presumption would be that it is let out along with the building.

20. In Bhal Singh Malik v. Dr. Nazar Singh and Anr. 1976 R.G.R. 145 it has been held that where a single storeyed building had been let out it includes roof unless the contrary is proved. I am thus of the opinion that it is for the defendants to prove that the roof over shop No. 635 is not included in the tenancy. The learned counsel for the defendants rely upon Shri Shathi Kapur v. Smt. Sulakshna Malhan and Ors., : 18(1980)DLT62 wherein it has been observed that a landlord has a right to build on first floor and develop the same during the continuance of the tenancy unless he has agreed with the tenant not to carry out such construction. In that case the tenant had written a letter to the Go-operative Society owning the land that mutation of the property in question may be made in favor of the transfer/donee of the landlord to enable her to construct the first floor. In that case the tenant had given his consent at some earlier stage to allow the transferee of his landlord to construct first floor. The facts of that case are thereforee, not applicable to the instant case.

21. The Courts below have wrongly approached the matter to determine the prima facie nature of the plaintiffs' case. Both the Courts have held that the plaintiffs have no prima facie case and have observed that no prima facie evidence has been placed on record to show that roof was included in the tenanted premises. As observed above the initial presumption is that the roof of a single storeyed building is let out along with the building. Prima facie case means that it needs serious consideration, investigation or determination. It does not mean proof at this stage. It means bona fide dispute requiring determination without pre-judging the case. The proper stage for judging the case is at the conclusion of the trial when the full facts are placed before the Court. The case of the plaintiffs as observed above requires consideration and investigation to the extent whether roof is not included in the tenancy premises. Reference may be made to : Gopal Krishan Kapoor v. Ramesh Ohander, IX : 9(1973)DLT390 , Gurmukh Singh v. Inderprasth Finance Co., 1976 Rajdhani Law Reporter 1, Sahab Dayal Chamanlal v. M.C.D., : 13(1977)DLT17b and Bhal Singh Malik v. Dr. Nazar Singh and Anr. 1976 R.G.R. 145.

22. The defendant No. 2 is in occupation of shop No. 633. The plaintiffs are in occupation of shop No. 635. There is a room over shop No. 633 in occupation of defendant No. 2. Roofs over shops No. 634-635 are open, vacant and there is no structure as reported by the Local Commissioner. There is room over shop No. 636. Thus on two sides of roof over shops No. 634-635 there are rooms. By the written statements the apprehension of the plaintiffs that the defendants wanted to dispossess them is obvious. It has been pleaded that the roof over shops No. 634-635 with some structure was let by defendant No. 1 to defendant No. 2.

23. The first appellate Court has observed, 'it is further undisputed that adjoining shops 634-A and 634-B have room on the first floor which is in the tenancy of defendant No. 2'......... ...'Defendant No. 2 is admittedly tenant in respect of one such roofs and owner-landlady of shop No. 635 has every right to let out the roof over shop No. 635 to another tenant unless the tenant in the shop No. 635 shows an agreement to the contrary in this behalf.' These observations are wrong factually and legally. The Local Commissioner who visited the premises on 24th January, 1981 has reported that roof over shops 634 and 635 is open and vacant i.e. there is no room. The Local Commissioner has further reported that wooden beams, broken and unbroken, tin sheets and other material was kept in the room of defendant No. 2 and that the building material seems to be meant for construction. The case of defendant No. 2 is that the plaintiffs started demolishing the structure over the roof of shops 634 and 635 on 24th January at 2.25 P.M. The defendant No. 2 claims the roof and the structure under his tenancy. A photo-stat copy of the police report dated 24th January, 1981 has been placed on record wherein allegation is that partners of the plaintiffs' firm started throwing away the goods lying in the structure and that they started demolishing the same. This report was made at 2 25 P.M. on 24th January, 1981, while the Local Commissioner visited the site at 5 P.M. The learned counsel for the plaintiffs submits that there has never been any structure over shops No. 634-635, that the report dated 24th January, 1981 to the police is false. He submits that it is humanly impossible to demolish the structure and remove the debris during the period from 2.25 P.M. to 5 P.M. Learned counsel for defendant No. 2 submits that debris were lying in room of shop No. 633. The Local Commissioner at 5 P.M. on that day reported that the roof of shops No. 631-635 was lying vacant and that there was material lying in room over shop No. 633 for construction. In other words there were no debris of the alleged structure over roof of shops No. 634 and 635. The defendant No. 2 has produced two receipts dated 16th October, 1980 and 12th December, 1980 showing payment of rent to defendant No. 1 with respect to roof and construction on first floor of shops No. 634 and 635. What is the construction on first floor is not mentioned in these receipts. According to the plaintiffs these receipts were fabricated after the institution of the suit. The plaintiffs' counsel further submits that defendant No. 2 was never a tenant on the roof and that the defendant No. 1 has no right to let the roof as the same was already under the tenancy and possession of the plaintiffs. The learned counsel for the plaintiffs further submits that no plan of any structure over roof of shops No. 634 and 635 was ever sanctioned by the Delhi Municipal Committee or the Corporation and the defendants without any right want to construct a structure over the said roof even without obtaining any sanction. No sanctioned plan has been placed on record and there is no plea of any such sanction. It is however not necessary to decide at this stage whether any structure either existed on the roof over shops No. 634 and 635 or there is any sanctioned plan. It is also not necessary to decide at the moment whether defendant No. 2 is tenant under defendant No. 1. However it is necessary to preserve the property. If injunction is not granted and the defendants either dispossess the plaintiffs from roof or shop or raise structure on the roof it would create trouble and cause irreparable injury to the plaintiffs. If the defendants are allowed to raise structure and the suit of the plaintiffs is finally decreed, it may not be possible for the Court to require the defendants to remove the structure so raised by them. This irreparable injury is thus likely to be caused to the plaintiffs.

24. The balance of convenience is also in favor of the plaintiffs in restraining the respondents from dispossessing them from the shop and the roof, and also from raising any structure over the roof. The plaintiffs are prima facie in possession of the shop. According to the plaintiffs they have been using the roof over shop No. 635. The Courts below have observed that nothing has been placed on the record to show how the roof has been used by the plaintiffs. The roof can be used by placing a ladder. The plaintiffs have a prima facie case for the grant of the temporary injunction. Refusal to grant injunction would cause irreparable injury. Balance of convenience, is also in favor of plaintiffs.

25. The learned counsel for the defendants submit that the two Courts have refused to grant temporary injunction and this Court in exercise of power under Section 115 of the Code should not interfere with the discretion exercised by the Courts below. They refer to D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup Singh and Ors. : [1970]2SCR368 , The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, : (1972)ILLJ170SC . The Municipal Corporation of Delhi v. Suresh Ghandra Jaipuria and Anr. : [1977]2SCR10 and Bhan Singh v. S. Kanwaljit Singh and Ors., : AIR1969Delhi349 . But the Courts below have acted illegally in exercising jurisdiction and ultimately refused to grant temporary injunction and leave to amend the plaint. They have ignored the procedural law for the grant of temporary injunction and the principles for leave to amend the pleading.

26. In M/s. D.L.F. Construction Housing and Construction Co. (P) Ltd. (supra) it has been observed that while exercising the jurisdiction under Section 115 of the Code it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. It has been further observed that the words 'illegally' and 'with material irregularity' as used in Clause (c) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. Further it has been observed that the errors contemplated by this clause (c) may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision. This principle is not disputed. In N. S, Vankatagiri Ayyangar and Anr. v. The Hindu Religious Endowments Boards, Madras it has been held that under Section 115 of the Code High Court has to satisfy itself upon three matters, (a) that the order of the subordinate Court is within its jurisdiction (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted 'illegally', that is, in breach of some provision of law or 'with material irregularity', that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. In the instant case the Courts below have not applied the relevant law i.e. the principles for the grant of temporary injunction. They have wrongly held that the plaintiffs have no prima facie case. In Smt. Akhtar Begum v. Jamshed Munir : AIR1979Delhi67 this Court interfered in revision against an order dismissing application for temporary custody of the child under Section 12 of the Guardians and Wards Act, 1890 because the trial Court had not applied the relevant law. The trial Court had lost sight of the personal law of the parties in dismissing the application for temporary custody. It was held that it amounted to exercising jurisdiction 'illegally' i.e. in breach of some provision of law. Similar observations were made in M. L. Sethi v. R P. Kapur : [1973]1SCR697 . I am thereforee of the opinion that if the procedural law prescribing a manner in which the Courts have to find out (i) whether a prima facie case exists or not, (ii) where the balance of convenience lies, (iii) whether irreparable injury is likely to be caused if injunction is refused, and (iv) whether leave to amend the plaintiffs is to be granted, has not been followed, the Court acts 'illegally' in exercise of its jurisdiction. This Court under such circumstances has jurisdiction to exercise powers under Section 115 of the Code.

27. The proviso to Section 115 of the Code further prescribes that the impugned order should either cause irreparable injury or cause failure of justice before the impugned order can be interfered with by the High Court. In the instant case if the injunction restraining the defendants from raising any structure on the roof in question or from dispossessing the plaintiffs is not issued, irreparable injury would be caused to them. In Bhal Singh Malik (supra) also it has been held that when the errors committed by Courts below relate to breach of any rule or any established principle which effects the ultimate decision, it would tantamount to 'illegality' or at least 'material irregularity' as contemplated by Clause (c) of Section 115 of the Code and the High Court should not hesitate to correct the same. It has been further held that when the discretion has not been exercised by the Courts below in accordance with the principles governing the grant of ad interim injunction, it cannot be maintained that the discretion had been exercised in a judicial manner and in such a case, the High Court is competent to interfere.

28. The revision (C. R. 981 of 1981) is thereforee accepted setting aside the judgment and order dated 22rd September, 1971 of the first appellate Court confirming the order dated 2nd March, 1981 of the trial Court dismissing the plaintiffs' application for the grant of temporary injunction. The plaintiffs' application for grant of temporary injunction is allowed and the defendants arc restrained from taking forcible possession of the shop and the roof over shop No. 635, Chandni Chowk, Delhi and from raising any construction over the said roof till the decision of the suit. The result is that G. R. 981 of 1981 and G. R. 288 of 1982 are accepted setting aside the impugned judgments and orders. The application for leave to amend the plaint as proposed is allowed. Further temporary injunction as prayed is issued against the defendants. No order as to costs.


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