SYEDA ZEHERA JABEEN Vs. S PADMANABHAN

JUDGEMENT

(1.) THIS revision is directed by the second defendant against the exparte order of ad-interim injunction passed by the IV Assistant City civil Judge, Mad. in I. A. No. 17289 of 1988. The respondents-plaintiffs filed the suit O. S. No. 9891 of 1988 against the revision-petitioner and the Corporation of Madras, for a declaration that the construction already put up by the revision-petitioner herein is illegal and for a consequential relief of permanent injunction restraining the revision-petitioner from doing further construction and also for a mandatory injunction directing him to demolish the construction already put up and also to direct the Corporation of Madras to take action against the revision-petitioner. The plaintiffs prayed for ad-interim injunction in la. No. 17289 of 1988 restraining the revision-petitioner, who is the second defendant and his men from putting up any construction over and above the existing construction over the schedule mentioned property pending disposal of the suit. In that petition, the IV Assistant City Civil Judge passed an order as follows: Head Perused the documents. I am satisfied that the petitioner is entitled to ad-interim injunction as the balance of convenience is in his favour. I therefore order ad-interim injunction and notice by 18-11-1988. Aggrieved by the said order, this revision is filed on 15-11-1988 and an exparte order of interim suspension was obtained on 17-11-1988.

(2.) THE main contention raised by the learned counsel for the revision-petitioner, Mr. S. Balasubramanian, is that the respondents-plaintiffs have already filed a suit against the revision-petitioner in O. S. No. 6396 of 1988 for a declaration that they are entitled to the easemen-tary right of light and air through the window of their property and also prayed for an injunction restraining the revision-petitioner from putting up any construction over his property so as to block the window of the plaintiffs property. While the suit was pending, they filed another suit o. S. No. 6514 of 1988 on the file of the City Civil Court against the revision-petitioner for a declaration that they are entitled to have the prescriptive easementary right to receive light and air through the ventilator and also prayed for a permanent injunction restraining the revision-petitioner from putting up any construction so as to close the ventilator. Interim injunction was granted in I. A. No. 10969 of 1988 and the said application was resisted by the revision-petitioner. After hearing both the parties, the 9th assistant Judge, City Civil Court, dismissed the application. THE respondents herein were unsuccessful in c. M. A. No. 196 of 1988 on the file of this court, filed against the said order. According to the learned counsel for the revision-petitioner, the respondents herein having failed in those proceedings, have come forward with the present suit by adding the Corporation of Madras as the first defendant and they are now fighting for the public cause. Further, if there is any violation of the sanctioned plan, it cannot be said that the entire construction is to be demolished and that is open to the revision-petitioner to convince the corporation authorities to modify the earlier order and the sanctioned plan under S. 256 (3) of the Madras City Municipal Corporation Act. According to him, the respondents are entitled to any order of injunction and that the observation of the lower court that the balance of convenience lies in favour of the respondents herein is not correct. It is further stated that the suit as well as the application for injunction are barred by the principle of res judicata and that the lower court has not followed the guidelines laid down by this court in the matter of granting injunction.

(3.) AS far as the instant case is concerned, it is the contention of the learned counsel for the revision-petitioner that there were already prior proceedings in which the respondents-plaintiffs were unsuccessful and that they filed the present suit and obtained an exparte order of injunction, and as such, the revision-petitioner is entitled to file this petition before this court instead of moving the lower court to vacate the interim order. I do not find and merit in the said contention. It is open to the petitioner to move the court which passed the order, to vacate the order, by bringing to the notice of the court of the prior proceedings and all orders passed in his favour and as against the plaintiffs and to invite a decision of that court. There is absolutely nothing to hold that the impugned order is either perverse or has been obtained by suppressing material facts as was the case in Sundaram Pillai S. v. P. Govindaswami, 97 L. W. 630 so as to warrant this court to exercise the revisional jurisdiction of this court under S. 115, C. P. C. On the other hand, the ratic laid down in the Division Bence decision in Abdul shukoor v. Umachander, A. I. R. 1976 Mad. 350 which has been followed in Spl. Tahsildar No. III, LA. Lignite Project v. Rengaswamy Reddiar, (1988)1 M. L. J. 317 is clearly applicable to the facts of this case, where an ex parte order was obtained restraining the revision-petitioner from putting up further construction in violation of the sanctioned plan. It is open to the revision-petitioner to convince the court which passed the above interim order that the construction is not in any way contrary to the sanctioned plan or that the respondents-plaintiffs have not made out any case for grant of interim injunction to restrain him from proceeding with further construction. In the instant case, only the plaintiff has sought for maintaining the status que not to do any positive act. Since this court has taken a view that the remedy of the petitioner is only to move the court which passed the ex parte ad interim injunction, this court does not wish to express any opinion on the merits of the case of the respective parties. It is open to them to put forth their contentions before the lower court. But suffice if the lower court is directed to dispose of the petition without further delay and within the time specified by this court. In this connection, it is worthwhile to quote the observations made by the learned Judge in the Division bench decision Abdul Shukoor v. Umachander, A. I. R. 1976 Mad. 350 that in the matter of disposal of injunction ap-plications, the subordinate courts are not following the provisions of the code of Civil Procedure and disposing the same according to the provisions. The Bench observed as follows: Before leaving this matter, we would like to make some practical suggestions. We have already accepted a portion of the report of the civil Justice Committee. Even in 1926, it was desired that such ad interim injunction should not stand, unless affirmed or dissolved, for more than a week. It is, therefore, desirable that the trial Courts, which pass such orders should not give more than a week time to enable the other side to appear and if the other side files an application under 0. 39, R. 4, C. P. C. to vacate or modify the same, such applications also have to be heard within two weeks thereafter. The entire matter should be settled within a month. Otherwise, the litigants would be frustrated and the hope that the poor litigant has in a court of law will become a dupe. We, therefore, suggest that in all such situations, the courts which are guided by expediency and avoidance of delay should dispose of such applications at least within 30 days from the date when they issue such ad interim injunction orders. It is to be noted that even under 0. 39, R. 3-A, C. P. C. it has been clearly provided that where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour 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. It is unfortunate that the subordinate judiciary is not adhering the said provision as well as the direction given by the Division bench in the above quoted case.