SUPREME COURT OF INDIA
Col. Anil Kak (Retd.)
Vs
Municipal Corporation, Indore
Appeal (Civil) 5807 of 2005; Special Leave Petition (Civil) No. 11940 of 2003); Special Leave Petition (Civil) No.11771 of 2003
(G.P.Mathur and P.K.Balasubrmanyan)
19/09/2005
P. K. BALASUBRAMANYAN, J.
1. These two petitions arise from the claim for an interim injunction by the
petitioner before us in a suit filed by him. The suit was for a permanent
injunction restraining the respondents, the defendants in the suit, from
interfering with the possession of the suit land allegedly held by the
petitioner including the school buildings constructed thereon and not to
demolish or take any steps for removal of the constructions. An interim
injunction along the same lines to ensure during the suit was sought. That
application was opposed. Respondent No.3, in turn sought an injunction
restraining the petitioner plaintiff from putting up any construction outside
an area of 16, 000 Sq. ft. The trial court granted an interim injunction in
favour of the petitioner but confined it to an area of 16, 000 Sq. ft. and the
construction thereon and also restrained him from putting up any construction
outside it but included in the plaint schedule. The petitioner appealed against
those orders and the Additional District Judge allowed the appeals and
modifying the order of injunction granted by the trial court, made the
injunction operative in respect of the entire plaint schedule property and the
structures thereon. The respondents originally filed a revision invoking
Section 115 of the Code of Civil Procedure (for short 'the Code') before the
High Court challenging the order of the first appellate court. In view of a
decision rendered by that High Court that no revision under Section 115 of the
Code could be entertained against an order of injunction since the order was
purely interlocutory in nature, the respondents herein sought a conversion of
their revision into a petition under Article 227 of the Constitution of India.
This prayer was allowed by the High Court which decided to treat the
proceedings as one under Article 227 of the Constitution of India. It is
challenging that order that the petitioner before us has filed Special Leave
Petition(C) No.11771 of 2003. Proceeding on the merits thereafter, the High
Court modified the order of the first appellate court and restored the order of
the trial court and thereby confined the interim order of injunction to an area
of 16, 000 Sq. ft. and the structures thereon. Feeling aggrieved by this
modification, the petitioner before us - the plaintiff in the suit, has filed
SLP(C) No.11940 of 2003. Since both matters arise from the same proceedings,
they are taken up together for final disposal. SLP(C) No.11771 of 2003
2. All that the High Court has done is to treat the petition filed before it
under Section 115 of the Code as a proceeding initiated under Article 227 of
the Constitution of India. The respondents had filed the revision originally
and during the pendency of that revision the High Court appears to have taken a
view that an order in an appeal arising from a proceeding under Order 39 Rules
1 and 2 of the Code, could not be challenged under Section 115 of the Code
since the order was in the nature of an interlocutory order. In such a
situation, in our view, the High Court rightly decided to permit the
revision petitioners before it, to convert the same as a proceeding under
Article 227 of the Constitution of India. After all, the court could have done
it on its own, even without a motion in that behalf by the petitioner. We see
absolutely no ground to interfere with the said order on the grounds raised in
this special leave petition. # Hence, this special leave petition is
dismissed.
SLP(C) No.11940 of 2003
Leave granted.
3. In this appeal, the appellant - plaintiff who had filed a suit, inter alia,
for a permanent injunction restraining the defendants in the suit from
interfering with his possession of the plaint schedule property and the
structures thereon allegedly put up by him, challenges the order of the High
Court by which that court set aside the order of the first appellate court and
restored the limited order of interim injunction granted by the trial court.
The trial court, after hearing both sides had confined the interim order of
injunction to an extent of 16, 000 Sq. ft. and the structures thereon and had
declined relief to the plaintiff in respect of the rest of the plaint area, and
the constructions allegedly put up by him outside the 16, 000 Sq. ft, which
alone was the subject matter of an admitted lease. In appeal, the lower
appellate court modified the order passed by the trial court and made the
injunction operative in respect of the whole of the suit property including the
disputed portion and the structures in the entire property including the ones
allegedly put up in the disputed portion. The High Court found that no prima
facie case was made out by the plaintiff- the appellant before us, for an
injunction in respect of the property outside the 16, 000 Sq. ft. and the
structures thereon and the appellate court was not justified in modifying the
order of the trial court. The High Court set aside the order of the appellate
court and restored the order of the trial court. Thus, the High Court confined
the order of injunction to an area of 16, 000 Sq. ft and the structures
thereon.
4. This Court by order dated 12.7.2003, stayed the operation of the order of
the High Court as also any action for demolition until the matter was heard in
this Court. On 14.7.2003, while issuing notice on the petitions for special
leave to appeal, this Court also ordered that until further orders, the order
dated 12.7.2003 shall continue to remain in operation. Thus, the order passed
by this Court on 12.7.2003 continues to be in operation, meaning thereby that
the proposed demolition of structures outside the area of 16, 000 Sq. ft.
remains stayed.
5. We find that in the schedule property including the disputed portion, an
educational institution is functioning. It is seen that there are a number of
litigations between the parties, including a suit for specific performance of
an agreement to lease filed by the appellant against Respondent No.3 before us
apparently in respect of the area outside the 16, 000 Sq. ft. The suits are all
pending. Taking note of the salient fact and no other fact that an educational
institution is being run in the property in question including the disputed
portion and taking note of the fact that from 12.7.2003 the order of stay of
demolition granted by this Court has been in operation, we feel that it is not
necessary or appropriate to go into the merits of the disputes between the
parties at this stage. We feel that it would be appropriate to continue the
order of this Court dated 12.7.2003 and to keep it operative till the disposal
of the suit, with a direction to the trial court to try and dispose of the suit
as expeditiously as possible, preferably within a period of six months from the
production before it of a copy of this order by either of the parties. We have
thought it fit not to go into the merits of the controversy vehemently
projected before us by counsel on either side, only in our view, that the
status quo should be maintained in view of the fact that an educational
institution is said to be functioning in the property.
6. Learned counsel for Res.No.3 submitted that under the cover of this order,
the appellant is attempting to put up constructions in the disputed property
and it is just and necessary to prevent him from doing so. We think that this
prayer deserves to be granted, especially, in the context of the fact that we
are trying to maintain the status quo until the suit is finally disposed of.
We, therefore, restrain the appellant - the plaintiff in the suit, from putting
up any further construction and from altering or modifying any existing
construction until the disposal of the suit. In other words, there will not
only be an injunction against the defendants for demolishing the constructions
in the entire plaint schedule property including the disputed portion, but
there would also be an injunction restraining the appellant from making any
further construction and from altering or modifying any existing construction
in the plaint property including the disputed property
We also make it clear that the fact that we are permitting the structures in
the disputed portion of the property to continue to exist, will not confer any
right on the plaintiff, if he is not able to establish his case for relief in
the suit.
7. There is a further submission on behalf of Respondent No.3 that the
appellant has not paid the rent for the premises which was admittedly leased
out to him. Counsel for the appellant submits that there is no arrears, as
claimed. We do not think it necessary to decide this controversy. But we grant
the appellant a time of one month from the date of this order to clear all the
rent in arrears (if any), either by tendering the same to Respondent No.3 or
depositing the same in the trial court.
8. We also clarify that if the suit is not disposed of within the time fixed by
us and the defendants have a case that the plaintiff was deliberately delaying
the disposal of the suit, the respondents before us would have the liberty to
move this Court for any appropriate modification of this order.
9. This appeal is, thus, disposed of by maintaining the order of this Court
dated 12.7.2003 until the disposal of the suit and with an injunction against
the plaintiff as indicated above and the other directions as contained
hereinabove. We once more clarify that we have not gone into or dealt with any
contention on merits and leave all questions open, to be decided by the trial
court and our order maintaining the order dated 12.7.2003, is only because of
the fact that an educational institution is located, and is functioning in the
suit property, including in the disputed portion. The parties are directed to
bear their own costs.