MAHADEO SAVLARAM SHELKE AND ORS. versus PUNA MUNICIPAL CORPORATION AND ANR.

Citation: [1995] 1 S.C.R. 543 · Decided: 24-01-1995 · Supreme Court of India · Bench: K. RAMASWAMY, N. VENKATACHALA · Disposal: Dismissed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

MAHADEO SA VLARAM SHELKE AND ORS. 
A 
v. 
PUNA MUNICIPAL CORPO_KATION AND ANR. 
JANUARY 24, 1995 
[K. RAMASWAMY AND N. VENKATACHALA, JJ.] 
B 
Constitution of India-Art.· 227-<:ivil Procedure Code, 190~Section 
... 
115(2)-Revisional Power-Barred where party provided with right of ap-
proval-No bar to exercise revisional power u/s 115(1j against appellate order. c 
Civil Procedure Code, 1908--0rder 39, Rules 1&2--lnjunction against 
true owner at the instance of persons in unlawful possession-Whether can 
be granted--l:/eld, No. 
CPC, 1908--0rder 39-lnjunction-Discretionary Power--Equity jwis-
diction--Power to grant adequate compensation to mitigate damages caused D 
-.... 
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 injunc-
tion--Party ultimately losing should bear escalation of cost of project. 
E 
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 F 
licence agreements with the Corporation were allowed to get into posses· 
sion. After the expiry of the period of leave and licence agreements, 
proceedings were initiated for eviction of the appellant. An order of evic-
tion was passed. The tenants filed appeal and writ p~tition which were 
dismissed. The order of eviction of the appellants was affirmed by the G 
Supreme Court. Subsequently, the appellants filed a Civil Suit and sought 
,\- 'r 
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 H 
543 
544 
SUPREME COURT REPORTS 
[1995) 1 S.C.R. 
A 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 
B revisional power. It was alleged that when statutory prohibition was im-
posed 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 Higil Court was not justified in 
C 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 u.1interruptedly 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 Corpora-
tion of 11-11-1972, suitable direction might be given to the Municipality to 
D 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 
E and the order of the eviction passed against the appellant having been 
allowed to become final by the Supreme Court, the appellate Judge com-
mitted palpable error of law in interfering with the order. He contended 
that the Civil suit was not maintainable as being barr.ed b~' the provisoi.ns 
in the Corporation Act and the Civil Procedure Code. 
F 
The question raised for consideration was whether the appellant had 
shown that there was a ptima facie case, triable issue and balance of con-
venience 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 
G injunction could be granted against the rightful owner in favour of the 
persons who remained in unlawf

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