This Civil Revision Petition is filed by the defendant against the order dated 23.6.2009 passed in CMA.No.5/2008 by the learned Sub Judge, Paramakudi, confirming the order dated 2.9.2008 in IA.No.618/2007 passed by the learned District Munsif, Paramakudi.
2. The respondent/plaintiff has filed the above said suit against the petitioner/defendant for permanent injunction restraining the petitioner from interfering with the enjoyment of the common wall and from damaging the said wall in any manner. Pending the suit, she filed an application in IA.No.618/2007 for temporary injunction restraining the petitioner from demolishing for causing any damage to the said common wall.
3. The said application was resisted by the petitioner contending that the property to the west of the common wall belongs to his son and he is putting up construction in his portion without causing any damage to the common wall. Incidentally, it is also contended that the suit is bad for mis-joinder and non joinder of proper party. The learned District Munsif, Paramakudi after analysing the evidence granted an order of interim injunction by order dated 2.9.2008 in IA.NO.618/2007, which was confirmed by the learned Sub Judge, Paramakudi in CMA.No.5/2008 by order dated 23.6.2009.
4. Aggrieved by the order of the learned Sub Judge, Paramakudi, who affirmed the order of the trial court, the petitioner has preferred this Civil Revision Petition.
5. I have heard the learned counsel for the parties and have also perused the relevant records. Both the courts below have held that the petitioner has caused damaged to the common wall and the injury about to be caused was not only threatened, but also there was a real danger to the property of the respondent being damaged by way of construction put up on the common wall.
6. It is contended by the learned counsel for the petitioner that the courts below have come to a wrong conclusion regarding the damage caused to the common wall based on the report of the Commissioner and according to him, the finding is perverse.
7. The learned counsel for the respondent has referred to the decision of the Honourable Supreme Court rendered in the case of Dalpat Kumar and another Vs. Prahlad Singh and others [Air1993-SC-276]. In the said decision, their Lordships of the Honourable Supreme Court have observed that the existence of the prima facie right and infraction of the enjoyment of the property or the right is a condition for the grant of temporary injunction and prima facie case is not to be confused with prima facie title which has to be established on evidence at trial.
8. It is not disputed that the suit wall is a common wall. The report of the Advocate Commissioner has been referred to by the courts below wherein it is categorically found as follows:-
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9. Though the report of the Advocate Commissioner is not an absolute evidence, but at that stage in order to find out as to whether any damage is caused to the respondent's property, such report can form an acceptable basis to pass an order of interim injunction.
10. In the case of Manmohan Service Station Vs. Mohd. Haroon Japanwala [AIR-1994-Delhi-337], it has been held that when the Commissioner visited the suit property in the defendant's absence and even without giving any notice and intimation to him, his report could certainly be taken into account at the stage of granting of an ad interim injunction.
11. Hence, the report of the Advocate Commissioner could be looked into to find out as to whether any damage has been caused to the suit property which is likely to cause danger to the property of the respondent. The purpose of Order 39 of CPC is to preserve and protect the interest in the property in the suit and to protect the interest of the parties, till final disposal of the case and when both the courts below concurrently found the existence of a prima facie case for granting an interim injunction, interference in revision will be unwarranted.
12. In the case of Ravad Raibari and another Vs.Patarala Gouri Mahalaxmi Rajmani ]AIR-1977-Orissa-58], it has been held that grant of temporary injunction rests on sound exercise of discretion and cannot be lightly interfered with unless the exercise of discretion is unreasonable or capricious.
13. In the case of Municipal Corporation of Delhi Vs. Suresh Chandra Jaipuria and another [AIR-1976-Sc-2621, it has been held that the interference by the High Court with the concurrent findings was unjustified as the court has overlooked the principles governing interference under Section 115 of CPC laid by the Honourable Supreme Court in the cases of Baldevdas Shivlal Vs. Film Star Distribution [AIR-1970-SC-406], DLF Housing and Construction Company Pvt Limited, New Delhi Vs. Sarup Singh [AIR-1971-SC-2324] and The Managing Director (MIG) Hindustan Aeronatutics Limited, Bala Nagar, Hyderabad Vs. Ajit Prasad Tauwary [Air-1973-SC-76].
14. I do not want to express any opinion as to the merits of the case of the petitioner, as that may prejudice one or other of the parties in the trial of the suit. The party who seeks the aid of the court in that behalf must as a rule be allowed to satisfy the court on three points that (a) There is serious question to be tried at the hearing and there is a probability that he/she is entitled to the relief sought by him/her or in other words he/she has a prima facie case to go to the trial, (b) The court's interference is necessary to protect the aggrieved party from the species of injury which the court called irreparable injury before his legal right is established at the trial and (c) The comparative mischief or the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting it.
15. When an interim injunction is sought for, in considering the question of balance of convenience, the court has to consider the comparative mischief or inconvenience of the parties.
16. The trial court as well as the appellate court have come to the conclusion that there is series questions to be tried at the trial and that there is a prima facie case to go to the trial. They have also come to the conclusion that the interference of the court is necessary to grant an interim injunction and that the balance of convenience lies in granting an order of interim injunction. That being the position, there is no error of jurisdiction calling for interference by this court.
17. When both the courts below have concurrently held that the respondent/plaintiff had a prima facie case and that the balance of convenience was in her favour, interim injunction granted cannot be disturbed in revision, since it did not suffer from any unreasonableness or caprice. The impugned orders have not been shown to be bad on any jurisdictional ground or defect in procedure.
18. In view of the settled position of law and the fact that there is no material to show that the courts below have exercised its jurisdiction either illegally or with material irregularity, this court cannot invoke its jurisdiction under
Article 227 of the Constitution of India. ARUNA JAGADEESAN, J.
Srcm
19. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed.
Srcm To
1.The Sub Judge, Paramakudi
2.The District Munsif, Paramakudi