Sunday, 18 September 2016

Duty of court to protect interest of absent party while granting exparte injunction

The trial Judge has very lightly granted the injunction. Principles of granting temporary injunctions are well settled. Order 39, Rules 1 and 2 provide for such injunctions. Rule 1 does not apply. Rule 2 requires that some injury must be threatened. Injury must be a legal injury and not any fancied injury. In all cases where injury is alleged the Court is put on an enquiry as to what are the contents of the rights claimed by the plaintiffs. Assuming that some such right is shown the second element to be considered is whether irreparable injury or inconvenience may result to the plaintiffs if the same is refused. The appellants want to prevent the owner from developing the property merely by relying upon the Rules of the Corporation. Their shops exist as they are and they could carry on the business without any hindrance until the Small Causes Court decide the eviction suit. By this injunction, the appellants are only holding the owners to reason. The trial Court did not even pause to consider the loss to the owner. We have dealt with the question in somewhat details, for in recent days cases after cases came to our notice where we find injunctions are granted without due care and circumspection and without thought to the consequences of the same to the other side, particularly by the Small Causes Court and the City Civil Court, in Bombay. No attempt is even made to safeguard the other side by imposing terms such as security or otherwise. The duty of being careful even in the case of ex parte applications cannot but be emphasised. It is the duty of the Judge to be careful in the exercise of this power and must by careful questioning of the applicant ascertain whether a real case exists for the grant of the same. He must be satisfied that the law permits it and the emergency demands it. It should not be granted lightly or inadvisedly. Even if granted, the absent party ought to be sufficiently protected. (Canon of Judicial Ethics of American Bar Association). We only hope that care will hereafter be shown by subordinate Courts in granting injunctions.
Bombay High Court
Narayandas S. Kanuga vs Sarasvatibai D. Joshi And Anr. on 7 March, 1967
Equivalent citations: AIR 1968 Bom 280, (1967) 69 BOMLR 622
Bench: Patel, Thakkar
 (1) There is a rectangular plot of land abutted on two sides by road-on the south by B. J. Road and on the east Gram Panchayat Road. It measures 1895 Sq. Yards. Small plots of land, thirteen in number, were given to various persons by the owner who have built small shops of about nine feet high and they have been running the shops. The owner says they are licensees while the occupants say they are tenants. The Municipal Corporation and the owner say that the constructions are unauthorised and the former has issued notice for demolition. The owner wants to develop the plot and wants to build a multi-storeyed building. She offered the occupants accommodation in the building but they are not satisfied with what was offered and she had to file suits in Small Cause Court for eviction which are pending.
(2) In the meantime she got the plans sanctioned on June 19, 1965. She had collected funds and materials ready. But as the occupants of the shops refused to vacate, to save time she approached the Corporation for permission to build a part of proposed building to which the corporation gave sanction on June 11, 1966.
(3) The two appellants filed suits against her and the Corporation for injunction restraining the (construction of?) building on the ground that the construction violates the building bye-laws. The bye-laws alleged to be violated are: (1) that there should be distance of not less than 30 ft. between the two buildings and (2) on an average there should be a distance of about 50 ft. between the proposed construction and a public road. It may be stated that the property is situated at Goregoan. The plaintiffs do not allege that the construction affects them personally.
(4) They applied for temporary injunction which the trial Court granted. The defendants appealed and Mr. Justice Palekar in an elaborate judgment allowed the appeal and discharged the Notice of Motion.
(5) The first question is whether an appeal is competent. The word "judgment" in Clause 15 of the Letters Patent has by now acquired a definite meaning and it has been held that refusal of a judge to grant interim injunction is not judgment as it does not decide any of the rights of the parties finally and therefore no appeal lies. See Vanichand v. Lakhimchand, 21 Bom LR 955=(AIR 1920 Bom 309), Salemahomed v. Mahomed Taheer, and Gyangirji Narsingirji v. Raja Dhanrajgirji, Mr. Advani relying upon Mansata Films Distributors v. Sorab Modi contended that an appeal will not lie where the order is made by a single Judge only in connection with a step in aid in the suit, but where the interlocutory order determines the right of a party pro tanto, the party affected has a right of appeal. In our view, the right affected must however be determined finally between the parties. When the question involved however is at large in the suit, it cannot be said that pro tanto the right is decided. In the present case, view expressed by the Court is merely to find out if the plaintiffs have a prima facie case and does not affect the merits of the suit.
(6) Even on merits, the plaintiffs have not prima facie case. Similar question was considered by our High Court in Abdul Isa Bhagat v. Sultanalli Sulemanji, S. A. No. 859 of 1941, D/- 26-11-1942 (Bom); Broomfield and Macklin JJ. Where Mr. Justice Broomfield cited with approval following observations of Mr. Justice Farwell in Mulli v. Hubbard. (1903) 2 Ch 431.
"I have also heard arguments as to the general intent and meaning of the Public Health Acts, and it is said that I ought to find some intention to protect the individual next-door neighbour as distinct from the whole body of corporators of the borough or the whole of the inhabitants of the particular district. In my opinion, that is not the true view. If the next door neighbour has any common law rights, they are left untouched and he can assert them. If he has no common law rights, the Legislature under the Public Health Acts intended, not to create rights in individuals but general rights for the benefit of the inhabitants of a particular borough or district. The very words of this section appear to me to exclude any notion of individual right, because the sole arbiter whether the house shall or shall not be brought forward is the urban authority. They may give their written consent and, if they do, the next door neighbour has no ground of complaint............ Certainly it would be an unfortunate construction that would allow the numerous individuals in a street to bring their private actions against a man who had built a few feet in front of the line allowed, when, as in this case, the urban authority decline to complain or interfere in any way."
In the above case the Court held that the plaintiff had no cause of action. Similar view has been taken in Nandalal Ladia v. Provudayal Tikriwalla, and Cawashaah Bomanji v. Prafulla Nath. AIR 1941 Nag 364.
(7) In Saunders v. Holborn District Board of Works, (1895) 1 QB 64 the Court observed that:-
"Section 29 of the Public Health (London) Act, 1891, which imposes on the Sanitary Authorities of London the duty of removing street refuse from the streets in their respective districts, does not give any right of action to a person suffering special damage from a breach of such duty"
(8) Very often statutes are enacted for the special benefit of person for whose benefit certain obligations are placed upon others. In such a case a right of action may be referred in those for whose benefit the statute is enacted as was done in Black v. Fife Goal Co Ltd., (1912) AC 149 where it was said. "We are to consider the scope and the purpose of the statutes and in particular for whose benefit it is intended".
(9) In this connection, Ss. 54 and 56 of the Specific Relief Act are also very relevant. Section 54enables the Court to grant perpetual injunction to prevent the breach of an obligation existing in favour of the applicant-whether express or implied. This is again subject to exceptions. The query, therefore, has to be "whether there exists an obligation in favour of the applicant". Even where an obligation is made out, if the case falls within S. 56, injunction cannot be granted. Where the plaintiff cannot and do not allege any recognizable right or obligation in them, nor the breach of the same. If they could not get a perpetual injunction they could not get temporary injunction.
(10) Mr. Advani relied upon in Re. Sm. Lakshmimoni Dassi and Kanhayalal Ruia v. Corporation of Calcutta (1951) 88 Cal. LJ 78. In the first case, the petition was under S. 45 of the Specific Relief Act on the Original side of the High Court. The proposed building 13 was so near the building 21, that the learned Judge recognising that the existence of the element of "legal right" depends upon the facts of each case said on the facts of the case.
"I propose to hold that the Corporation owed such a duty to the adjacent owner, and that there was in the adjacent owner such a legal right within the meaning of the cases, as to found an application for mandamus. No. 21, as I have found, was injured as to light, air, health and amenities by the breach of restrictions, by reasons of its particular situation."
The subsequent case in distinguishes this case. Assuming without admitting that the case lays down the correct principle, it cannot apply in the present case where there can be no question of any rights of the appellants being affected. The appellants are mere licensees as alleged by the owner and at best tenants if they are, they have no right to stick to the property except as provided by the Rent Act and suits in eviction are pending. Their constructions themselves are petty and hardly 9 or 10 ft. high with no opening in the rear. Moreover, they are alleged to be unauthorised. The Corporation has issued notices for their demolition. It is with these kinds of construction that the great right of vicinity is claimed by them. The second case is rightly distinguished by Mr. Justice Palekar.
(11) The trial Judge has very lightly granted the injunction. Principles of granting temporary injunctions are well settled. Order 39, Rules 1 and 2 provide for such injunctions. Rule 1 does not apply. Rule 2 requires that some injury must be threatened. Injury must be a legal injury and not any fancied injury. In all cases where injury is alleged the Court is put on an enquiry as to what are the contents of the rights claimed by the plaintiffs. Assuming that some such right is shown the second element to be considered is whether irreparable injury or inconvenience may result to the plaintiffs if the same is refused. The appellants want to prevent the owner from developing the property merely by relying upon the Rules of the Corporation. Their shops exist as they are and they could carry on the business without any hindrance until the Small Causes Court decide the eviction suit. By this injunction, the appellants are only holding the owners to reason. The trial Court did not even pause to consider the loss to the owner. We have dealt with the question in somewhat details, for in recent days cases after cases came to our notice where we find injunctions are granted without due care and circumspection and without thought to the consequences of the same to the other side, particularly by the Small Causes Court and the City Civil Court, in Bombay. No attempt is even made to safeguard the other side by imposing terms such as security or otherwise. The duty of being careful even in the case of ex parte applications cannot but be emphasised. It is the duty of the Judge to be careful in the exercise of this power and must by careful questioning of the applicant ascertain whether a real case exists for the grant of the same. He must be satisfied that the law permits it and the emergency demands it. It should not be granted lightly or inadvisedly. Even if granted, the absent party ought to be sufficiently protected. (Canon of Judicial Ethics of American Bar Association). We only hope that care will hereafter be shown by subordinate Courts in granting injunctions.
(12) We direct the City Civil Court to expedite the hearing of the suit filed by the appellants against the Municipal Corporation against demolition notices and the suits of this case.

(13) Order Accordingly.
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