Royal Villa Residents Association, represented by its President v. Project Management Committee Kotturpuram
2013-04-02
R.S.RAMANATHAN
body2013
DigiLaw.ai
Judgment :- Aggrieved by the order of ad-interim ex-parte injunction, this Civil Revision Petition is filed by the revision Petitioner. 2. The revision Petitioner is the defendant in O.S.No.4636 of 2012, on the file of the II Assistant City Civil Court, Chennai and the respondents filed the above suit for permanent injunction restraining the revision Petitioner from interfering with the respondents peaceful possession and enjoyment of the suit property. The respondents/Plaintiffs also filed I.A.No.10947/2012 for temporary injunction and also prayed for ad-interim injunction and the learned II Assistant City Civil Judge, Chennai has passed the above order and the same is challenged in this Civil Revision Petition. 3. Mr.M.S.Krishnan, learned Senior Counsel appearing for the revision Petitioner submitted that the Court below without properly appreciating the provisions of Order 39 Rule 1 to 3 of Civil Procedure Code and without following the guidelines and the law laid down by this Court, whereby the Honourable Supreme Court has held that a nonspeaking order of grant of ad-interim injunction is liable to be set aside. 4. On the other hand, Mr.G.Rm.Palaniappan learned counsel for the respondents submitted that the revision is not maintainable and any order passed under Order 39 Rule 1 of Civil Procedure Code is an appealable order and therefore without filing an appeal before the appellate Court, the revision filed against the order of ad-interim ex-parte injunction is not maintainable. He therefore submitted that the order cannot be said to be a non-speaking and cryptic order and the learned Judge has considered the objections and also the documents and on being satisfied with the prima facie case made out by the respondents/plaintiffs, granted an order of ad-interim ex-parte injunction and the same was also reflected in the order. He therefore submitted that in the Order, the learned Judge has stated that in view of the Builders Agreement entered into between the plaintiffs and the defendant emphasizing the right of the entry, the Court was inclined to grant an order of ad-interim injunction till 25.08.2012, Since prima facie case is made out. He therefore submitted that having regard to the application of mind by looking into the terms of the Builders Agreement, wherein, the right of entry is given to the plaintiffs, the order of interim injunction was granted and therefore the same cannot be interfered with in the revision.
He therefore submitted that having regard to the application of mind by looking into the terms of the Builders Agreement, wherein, the right of entry is given to the plaintiffs, the order of interim injunction was granted and therefore the same cannot be interfered with in the revision. The learned counsel for the respondents further submitted that the revision Petitioner has sent a letter, dated 06.08.2012 to the respondents herein stating that they would not prevent the revisional respondents from using the pathway and in that letter, they had also referred to the order of interim injunction granted in favour of the respondents and therefore having regard to the letter of the revision Petitioner, the revision has to be dismissed as infructuous. 5. The judgment reported in (2012) 5 Supreme Court Cases 370 in the case of Maria Margarida sequeira fernandes .vs. Erasmo Jack De Sequeira,the Honourable Supreme Court dealt with grant or refusal of any injunction as follows: Grant or refusal of an injunction: "83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. 84. In order to grant or refuse injunction, the judicial officer or the Judge must carefully examine the entire pleadings and documents with utmost care and seriousness. The safe and better course is to give a short notice on the injunction application and pass an appropriate order after hearing both the sides. In case of grave urgency, if it becomes imperative to grant an ex-parte ad interim injunction, it should be granted for a specified period, such as, for two weeks. In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex-parte ad interim injunction. 85. The court, in order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution, actual or realistic costs.
In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex-parte ad interim injunction. 85. The court, in order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution, actual or realistic costs. While passing the order, the Court must take into consideration the pragmatic realities and pass proper order for mesne profits. The court must make serious endeavour to ensure that even-handed justice is given to both the parties. 86. Ordinarily, three main principles govern the grant or refusal of injunction: (a) prima facie case; (b) balance of convenience; and (c) irreparable injury; which guide the court in this regard. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis the court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play a vital role." 6. In the Judgment reported in (2012) 6 Supreme Court Cases 792 in the case of Best Sellers Retail (India) Private Limited .vs. Aditya Birla Nuvo Limited, the Honourable Supreme Court relied upon the judgment of the Honourable Supreme Court reported in (1992) 1 SCC 719 in the case of Dalpat Kumar .vs. Prahlad Singh, wherein, the Honourable Supreme Court held as follows: "5. ...Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in 'irreparable injury' to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages." 7.
Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages." 7. Under Order 39 Rule 3 of Civil Procedure Code, wherein, it is proposed to grant an order of injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object for granting injunction would be defeated by the delay and therefore the Court has to record its opinion while granting an order of ex-parte injunction that if injunction is not granted that would cause serious irreparable injury or loss to the plaintiffs and also satisfy about the prima facie case made out by the allegations in the plaint. Further, mere repetition of the words that prima facie case is made out and irreparable injury be caused to the plaintiffs would not be sufficient to justify the grant of ad-interim injunction. Bearing these principles in mind, if we look at the order passed by the Court below, in my opinion, that the Court below has not applied its mind while granting an order of ex-parte injunction and the mere statement that right of entry as emphasized in the Builder's Agreement will not satisfy the requirement of Order 39 Rule 1 to 3 of Civil Procedure Code. Therefore, in my opinion, the court below has not followed the law relating to grant of ad-interim injunction. Nevertheless, having regard to the letter, dated 06.08.2012 sent by the revision petitioner to the respondents, wherein, it has been made clear that no legitimate owner of the 'E' Block, namely, owners represented by the residents was denied entry and the revision Petitioners had been asking for documents to resolve the issue legally and the revision Petitioner/Association never prevented entry to the respondents/plaintiffs and also having regard to the fact that ad-interim injunction was granted on 25.08.2012 and it was not extended thereafter, in my opinion, there is no need to pass any further order on the grant of ad-interim injunction. 8. Hence the Civil Revision Petition is disposed of, by directing the Court below to pass a reasoned order in the application filed under Order 39 Rule 1 and 2 of Civil Procedure Code, after giving opportunities to the parties concerned.
8. Hence the Civil Revision Petition is disposed of, by directing the Court below to pass a reasoned order in the application filed under Order 39 Rule 1 and 2 of Civil Procedure Code, after giving opportunities to the parties concerned. Consequently, connected Miscellaneous Petition is closed. No costs.