Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Constitution of India-Art.ยท 227- Civil Procedure Code 190~Section 115(2) |
Content Type | Text |
Resource Type | Law Order |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Constitution of India- Art. 227-Civil Procedure Code, 1908--Section 115(2)-Revisional Power-Barred where party provided with right of approval-No bar to exercise revisional power u/s 115(1) against appellate order.Civil Procedure Code, 1908--Order 39, Rules 1&2--lnjunction against true owner at the instance of persons in unlawful possession-Whether can be granted--Held, No.CPC, 1908-- Order 39-lnjunction-Discretionary Power--Equity jurisdiction--Power to grant adequate compensation to mitigate damages caused to defendant by grant of injunction--Pecuniary jurisdiction of court not a bar to award damages beyond its pecuniary jurisdiction.Land Acquisition-Public purpose delayed by orders of injunction-Party ultimately losing should bear escalation of cost of project.Proceeding u/s 4(1) of the Land Acquisition Act, 1894, were initiated for acquiring two storied building for widening of the road to remove traffic congestion. The compensation awarded was paid to the owner and pursuant thereto possession was taken and handed over to the Municipal Corporation. However, the tenants/appellants who entered into leave and licence agreements with the Corporation were allowed to get into possession. After the expiry of the period of leave and licence agreements, proceedings were initiated for eviction of the appellant. An order of eviction was passed. The tenants filed appeal and writ petition which were dismissed. The order of eviction of the appellants was affirmed by the Supreme Court. Subsequently, the appellants filed a Civil Suit and sought perpetual injunction from dispossession and for ad interim injunction. The Civil Judge refused to grant ad interim injunction. On appeal, the Joint Judge granted ad interim injunction pending disposal of the suit. The High Court in the Special Civil Application under Art. 227 of the Constitution set aside the appellate order and confirmed that of the Civil Judge. Hence this appeal.The appellants contended that u/s 115 CPC, High Court had power of revision where the appeal was not provided for either to it or subordinate court. Since the Joint Judge had exercised the appellate power, by operation of section 115(2), the High Court was devoid of jurisdiction to exercise the revisional power. It was alleged that when statutory prohibition was imposed by CPC, the exercise of jurisdiction by the High Court under Art. 226 was not warranted. The appellant further contended that the exercise of power under Art. 226 was not an appellate power but only one of correcting errors of jurisdiction and, therefore, the High Court was not justified in interfering with the questions of fact and law. The appellants submitted that even in equity they were entitled to remain in possession since they had been continuing under the respondents since 1971 uninterruptedly and they should be allowed to continue till the disposal of the suit. It was also contended that in view of the resolutions passed by the Municipal Corporation of 11-11-1972, suitable direction might be given to the Municipality to reconsider the matter whether the building was still needed for widening the road and based thereon, they could take appropriate steps or to provide alternative shops.The respondents submitted that the need for widening the road still subsisted and that the Corporation having taken possession of the building and the order of the eviction passed against the appellant having been allowed to become final by the Supreme Court, the appellate Judge committed palpable error of law in interfering with the order. He contended that the Civil suit was not maintainable as being barred by the provisions in the Corporation Act and the Civil Procedure Code.The question raised for consideration was whether the appellant had shown that there was a prima facie case, triable issue and balance of convenience for granting ad interim injunction pending the suit and, secondly whether an injunction could be granted in favour of the persons who remained in possession of the property. Further question was, whether an injunction could be granted against the rightful owner in favour of the persons who remained in unlawful possession. |
Judge | N/A |
Neutral Citation | 1995 INSC 74 |
Petitioner | Mahadeo Savlaram Shelke And Ors. |
Respondent | Puna Municipal Corporation And Anr. |
SCR | [1995] 1 S.C.R. 543 |
Judgement Date | 1995-01-24 |
Case Number | 1109 |
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