CASE NO.: Writ Petition (civil) 930 of 1990 PETITIONER: INDRA SAWHNEY & ORS. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 08/08/1991 BENCH: RANGNATH MISRA (CJ) & K.N. SINGH & M.H. KANIA & KULDIP SINGH & P.B. SAWANT JUDGMENT:

JUDGMENT 1992 ( 3 ) Suppl. SCC 212 The Order of the Court is as follows

1. We had adjourned the matter on the earlier occasion till today to provide an opportunity to <ORG> to place before us its clear stand as to whether the Notification dated August 13, 1990 was being implemented or not

2. A memo has been filed today by the learned Additional Solicitor General to the following effect "The Government of India Office Memorandum dated August 13, 1990 provided for reservation for Socially and Educationally Backward Classes (SEBCs) in civil posts/services under <ORG>

2. The present government is fully committed to the principle of reservation for SEBCs. In implementing the policy of reservation, the government intend to give preference to the poorer sections among SEBCs, while ensuring that, if candidates are not available from poorer sections, the benefits will go to other members of the backward classes. In addition, government also intend to provide reservation for other economically backward sections of the people who are not covered by any existing scheme of reservation

3. While the aforesaid OM can be amended to reflect the government's policy, government believe that any such step should be taken in consultation with other political parties to avoid controversies. This has been categorically stated in <ORG> on behalf of government

4. Government believe that social justice has to be promoted in an atmosphere of social harmony and peace. It is, therefore, necessary that the issues in this regard should be discussed first among major political parties and, if possible, a consensus evolved

5. To evolve such consensus among major political parties, government need some time, especially in the present difficult situation facing the country. A minimum period of two months is required to complete this exercise. Government prays for adjournment of the hearing of the case accordingly. Government wants to assure the <ORG> that it would utilise the time given to it for undertaking full and effective consultations with all concerned in the interest of evolving a generally acceptable solution."

On the basis of what is stated in the memorandum, learned Additional Solicitor General wants two months' adjournment of the hearing

3. Mr <NAME> raises serious objections to any adjournment of hearing of the cases by filing a counter memorandum indicating therein that all the points which have arisen for argument would still exist as issues requiring attention of the <ORG> even if that is proposed by <ORG> is done. It is, therefore appropriate according to him that the hearing of the matters should continue

4. Mr <NAME> says that we should continue the hearing to decide the constitutional validity of the Mandal Commission Report

5. Some counsel on the side of the petitioners state that we should await the new formulation

6. The validity of the Mandal Commission Report as such is not in issue before us. What we have been called upon to decide is the validity of the Government Order of August 13, 1990. It is true that some of the aspects which Mr <NAME> has indicated may have to be argued even if the new formulation comes but a constitutional question should not be argued in a vacuum and until we know the exact text of the government order which is sought to be formulated, it may not be appropriate at all to enter into the stage of hearing of the matter just because some issues may be common

7. In these circumstances, we adjourn the matter to September 24, 1991 but we would suggest to <ORG> to take appropriate steps as early as possible so that the proposed decision is taken and in case it is finalised at any time prior to September 24, 1991 we would like the learned Additional Solicitor-General to mention that fact to this Court so that the hearing may be appropriately preponed

8. Mr <NAME> then contended that the embargo put by the court on the operation of the order dated August 13, 1990 which has been in force for almost a year now should be withdrawn in view of the fact that <ORG> is not able to take any decision

9. On an overall assessment of the situation we are of the view that we should not interfere with our interlocutory order at this stage. We would look forward for early hearing of the matter and as we have suggested, if the matter is available to be pre-poned even though we have fixed September 24, 1991 as the date of hearing it may be so done. <ORG> is not affected by our order of stay in reaching its decision

10. We hope and trust that counsel for all the parties who are yet to be heard will cooperate by furnishing written notes in advance before the hearing begins so that we may be able to regulate the hearing of the matter and get reasonable time for the judgment to be prepared and delivered.


JUDGMENT <NAME>, J.

1. In this case the main contention that has been urged on behalf of the two defendants, who are appellants before us, is that the monies payable under a Policy of Insurance, being Policy No. 4667, issued by <ORG>, did not form part of the assets of the estate of one <NAME> deceased and that his widow, <NAME>, had no rights therein. In order to understand the precise significance of this contention, it is necessary to set out the facts giving rise to the litigation out of which the present appeal has arisen. It appears that one <NAME> insured his life on the 29th March, 1910, for a sum of Rs. 500. The material words of the Policy with which we are concerned are as follows: "The <ORG> hereby guarantees to insure that if the insured pays to the <ORG> at their office in Calcutta on the fifth day of March, nineteen hundred and ten and each succeeding year up to and including the year of his death the sum of rupees twenty-one and annas eleven only or in lieu of any such annual premium the full number of instalments thereof as may be agreed upon (of which agreement the receipt granted by the <ORG> shall be full and sufficient evidence) then upon proof to the satisfaction of the Office Committee of the <ORG> of the death of the insured and the title to the Policy, the <ORG> will pay to Srimati <NAME>, wife of the insured (hereinafter called the nominee) at the Head Office of the <ORG> in Calcutta or at the permanent residence of the nominee whichever may be preferred the sum of rupees five hundred only together with such additional sum or sums by way of profits as, according to the <ORG>'s Regulations, may accrue and become payable in respect of the Policy, after deducting therefrom (1) the balance of the premium, if any, payable in respect of the year of the insured's death and (2) also other sum or sums, if any, due from him to the <ORG>." The assured paid all the premiums due on the Policy till his death which took place some time in 1324 B.S. He died leaving him surviving the plaintiff, <NAME>, his widow and three sons. The sons were his heirs under the Hindu Law. On the death of the assured, the plaintiff claimed the amount of the said Policy and it appears that the Insurance <ORG> were about to make payment to the plaintiff. The defendants Nos. 1 and 2 who had obtained a decree against the sons of the deceased and the defendant No. 3. who had also obtained another decree against them attached the amount payable under the Policy in execution of their two decrees. The plaintiff, thereupon, preferred a claim under the provisions of the Code of Civil Procedure, but her claim was disallowed and the money due under the Policy was rateably distributed among the three execution creditors. Thereafter the present suit was brought by the plaintiff for declaration of her title to the amount payable under the said Policy and for recovery of the money from the creditors.

2. In the Court of first instance the plaintiff's suit was contested only on behalf of defendants Nos. 1 and 2 and it was held that the money due under the Policy became the property of the plaintiff, on the death of the deceased, and did not form part of the assets of the estate left by him. The decree of the first Court ran as follows: "Plaintiff to get a decree for the sum of Rs. 173-0-9 with proportionate costs for plaint and <NAME>'s fees, whole cost of the suit necessitated by the contest from defendants Nos. 1 and 2; and Rs. 326-15-3 with proportionate costs for the plaint and <NAME>'s fee from defendant No. 3". The lower <ORG> affirmed the decree of the first Court. The defendant No. 3 does not challenge the decree of the lower <ORG> and, as stated above, the defendants Nos 1 and 2 are the appellants before us. On their behalf it is contended that having regard to the authorities viz, the cases of <CITATION> 96 Ind. Cas. 846 : 53 C. 922 : 30 C.W.N. 812 : A.I.R. 1926 Cal. 1009, <CITATION> 19 Ind. Cas 733 : 37 B. 471 : 15 Bom. L.R. 320 and <CITATION> 25 Ind. Cas. 236 : 20. C.L.J. 44 : 18 C.W.N. 1335, it ought to be held that, having regard to the words used in the Policy, there was no trust created in favour of the plaintiff and that she was not entitled to realise the money in question from <ORG> and that the said money formed part of the assets of the estate of the deceased. On the other hand, it has been contended on behalf of the plaintiff-respondent that she was beneficially interested in the said Policy and that she atone was entitled to enforce the claim arising thereunder. It has further been argued that the Married Woman's Property Act of 1874 applies to this case and that, therefore, it cannot be questioned there was a trust in favour of the plaintiff and that the latter was entitled to realise the money in question from <ORG>. It has also been contended that under the Code of Civil Procedure the execution creditors were not entitled to attach the amount of the Policy in execution of their decree.

3. The question depends on whether the plaintiff was entitled to enforce her claim against <ORG>. If she was, then there could be no question that the money due under the Policy belonged to her and did not form part of the assets of the estate of the deceased. The plaintiff was, no doubt, the nominee of the deceased; but she was no party to the contract between the deceased and <ORG>. Under the English Law, if A contracts with B for a benefit to be given to C, although that was the object and purpose of the contract, C may not sue on that contrast unless in certain excepted cases. The excepted cases are these: Where you can read on the whole of the deed or contract that the contracting party really was a trustee for a third person, then the third person may sue. An illustrative case of this description is the case of <NAME> v. <NAME> (1844) 4 Hare 67 : 14 L.J. Ch. 66 : 8 Jur. 1040 : 67 E.R. 564 : 67 R.R. 6. In that case a man covenanted with the trustee or a person whose name was introduced as trustee that after his death, £80,000 of his property should be handed to that trustee in trust for the natural children of the covenanting party. It was held by <NAME>, V.C., that, looking at the whole scope and purpose of the deed, it amounted to a declaration of trust by the covenanting party for his natural children and that the latter had a perfect right to sue to enforce the trust, although it wa3 a voluntary trust. The second exception is the case of children under a marriage settlement, where persons in contemplation of marriage make a settlement by way of contract only for the benefit of, amongst others, the children of the marriage. In English Law, the children of the marriage are said to be within the marriage consideration; everybody who is considered to be within the immediate purpose and intent of a marriage settlement is treated as a person from whom consideration moves to the contracting party and, therefore, the children of the marriage are treated as if they themselves, although, of course, they are not then in existence, had given valuable consideration for the contract in the marriage settlement. This last second exception is referred to by <NAME>, L.J., in the case of <NAME> v. <NAME> (1880) 15 Ch. D. 228 : 49 L.J. Ch. 756 : 43 L.T. 135 : 28 W.R. 930 where His Lordship observed as follows: "As a rule, the Court will not enforce a contract as distinguished from a trust at the instance of persons not parties to the contract: <NAME> v. Countess of Mulgrave (1836) 2 <NAME> 81 : 5 L.J. Ch 335 : 48 E.R. 559 : 44 R.R. 191. The Court would probably enforce a contract in a marriage settlement at the instance of the children of the marriage, but this is an exception from the general rule in favour of those who are specially the objects of the settlement". In the case of <NAME> v. <ORG> (1852) 1 Macq. 513 : 2 C.L.R. 1566 it was held that the mere payment of money by A to B, who is not C's agent with a direction to pay it to C, is revocable and confers no right of action upon C [see <NAME> v. <NAME> (1857) 27 L.J. Ex. 3 : 114 R.R. 984]; and for the application of the same doctrine in equity: see Hill v. <NAME> (1869) 8 Eq. 290 : 38 L.J. Ch. 538 : 20 L.T. 812. It is unnecessary for me to multiply cases but the law on the subject will be found in Halsbury's Laws of England, Vol. 7, page 342, and the illustrative cases collected in English and Empire Digest, Vol. 12, page 44 et seq.

4. It is said, however, that in India the law is somewhat different and in support of this contention the case of <NA<NAME>E> v. <NA<NAME>E> 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 is referred to. That case was decided after the decision of <ORG> in the case of <CITATION> 7 Ind. Cas. 237 : 32 A. 410 : 37 I.A. 152 : 14 C.W.N. 865 : 7 A.L.J. 871 : (1910) <NAME>.W.N. 313 : 8 <NAME>.L.T. 147 : 12 C.L.J. 205 : 12 Bom. L.R. 638 : 20 <NAME>.L.J. 614 (P.C). As I read this last case, it was a case of a contract between A and B, whereby it was intended to secure a benefit to C, as a cestui que trust and the question arose whether C was entitled to sue in his own right to enforce the trust. Their Lordships of <ORG> held that under the agreement executed by A certain immoveable property was specifically charged for the payment of allowance, which A bound himself to pay to the plaintiff and that the plaintiff was the only person beneficially entitled under it. The plaintiff was C. Their Lordships observed as follows: "First, it is contended, on the authority of <NA<NAME>E> v. <NA<NAME>E> (1861) 1 B. & S. 393 : 30 L.J.Q.B. 265 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 124 R.R. 610, that as the plaintiff was no party to the agreement, she cannot take advantage of its provisions. With reference to this it is enough to say that the case relied upon was an action of assumpsit, and that the rule of common law on the basis of which it was dismissed is not, in their Lordships' opinion, applicable to the facts and circumstances of the present case. Here the agreement executed by the defendant specifically charges immoveable property for the allowance which he binds himself to pay to the plaintiff; she is the only person beneficially entitled under it. In their Lordships' judgment, although no party to the document, she is clearly entitled to proceed in equity to enforce her claim." 5. In the case of <NA<NAME>E> v. <NA<NAME>E> 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 the transferee of a debtor's liability had acknowledged his obligation to the creditor for the debt to be paid by him under the provisions of a registered instrument, conveying to him all the moveable and immoveable properties of the original debtor and the acknowledgment had been communicated to the creditor and accepted by him. In these circumstances it was held that the obligation undertaken by the transferee was for and intended to be for the benefit of the creditor and the creditor was entitled to sue the transferee on the registered instrument. The facts in <NA<NAME>E>'s case 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 were somewhat peculiar and, at first sight, it may seem that the decision proceeded on the difference between 'consideration' as defined in English Law and as defined in the Indian Contract Act . But a closer examination of the case justifies, in my opinion, the criticism passed on it by <NA<NAME>E>, J., in the case of <CITATION> 96 Ind. Cas. 846 : 53 C. 922 : 30 C.W.N. 812 : A.I.R. 1926 Cal. 1009 and the judgment, when properly analysed, does not really go beyond the terms of the actual decision of their Lordships of <ORG> in the case of <CITATION> 7 Ind. Cas. 237 : 32 A. 410 : 37 I.A. 152 : 14 C.W.N. 865 : 7 A.L.J. 871 : (1910) <NAME>.W.N. 313 : 8 <NAME>.L.T. 147 : 12 C.L.J. 205 : 12 Bom. L.R. 638 : 20 <NAME>.L.J. 614 (P.C). The same remarks apply to the case of <CITATION> 36 Ind. Cas. 792 : 22 C.W.N. 279 : 27 C.L.J. 483. In this connexion reference may be made to an English case where the facts were as follows: A tradesman made a Will, bequeathing an interest to <NAME>, his wife's sister. <NAME> married. Her husband and the testator entered into partnership articles with a proviso that if the testator should die during the partnership, his widow should be entitled to his interest. It was held by <NA<NAME>E>, V.C., [<NA<NAME>E> v. <NA<NAME>E> (1852) 10 Hare 163 : 68 E.R. 882 : 90 R.R. 314] that the effect of the agreement between <NAME>'s husband and the testator was to create an obligation in equity upon the surviving partner and in that respect it did not differ from a trust, i.e., that the partnership articles created a trust in favour of the widow. He further held that a trust could not be the less capable of being enforced because it was founded on contract.

5. The point now before us for determination is, in my opinion, covered by authority, see <NAME> v. <ORG> (1892) 1 Q.B. 147 : 61 L.J.Q.B. 128 : 66 L.T. 220 : 40 W.R. 230 : 56 J.P. 180. There the money due under a Life Assurance Policy was payable to a wife, if living, otherwise to the legal personal representatives of the assured. Lord <NAME>, M.R., observed as follows: "The contract is with the husband, and with no body else. The wife is no party to it. Apart from the Statute, the right to sue on such a contract would clearly pass to the legal personal representatives of the husband. The promise is one which could only take effect upon his death and, therefore, it must be meant to be enforced by them. It does not seem to me that, apart from the Statute, such a Policy would create any trust in favour of the wife. <NAME> might have altered the destination of the money at any time, and might have dealt with it by Will or settlement...I think that, apart from the Statute, no interest would have passed to the wife by reason merely of her being named in the Policy". This case has been followed in Bombay in the case of <CITATION> 19 Ind. Cas. 736 37 B. 471 : 15 Bom. L.R. 320 and in Calcutta in the case of <CITATION> 25 Ind. Cas. 236 : 20 C.L.J. 44 : 18 C.W.N. 1335. In my opinion I can see nothing in the present case which would justify me to distinguish it from the cases referred to above. The result is that the first contention on behalf of the respondent must be negatived.

6. The second contention is that the Married Woman's Property Act of 1874 is applicable to this case and that, by virtue of Section 6 of the Act, a trust has been created in favour of the plaintiff. Of course, if this contention is well-founded, the plaintiff is entitled to succeed. In my opinion, the correct rule has been laid down by <NAME> and <NAME>, JJ., in the case of <CITATION> 25 Ind. Cas. 236 : 20 C.L.J. 44 : 18 C.W.N. 1335 and for the reasons given by them, I am of opinion that the Married Woman's Property Act does not apply to this case and that the plaintiff cannot invoke in aid the provision of Section 6 thereof. In other words, we ought not to follow the decision in <CITATION> 20 Ind. Cas. 934 : 37 M. 483 : 25 M.L.J. 65 : (1913) M.W.N. 697 : 14 M.L.T. The second contention urged on behalf of the respondent must also be negatived.

7. The third contention is absolutely devoid of substance and there is nothing in Section 60 , Civil Procedure Code, which could prevent the creditors of the sons of the deceased from attaching the money payable under the Policy.

8. In my opinion, this appeal succeeds and must be allowed with costs. The defendants Nos. 1 and 2 will also be entitled to the costs in the <ORG> below.

<NAME>, <NAME>

9. I agree. Clause (d) of Section 2 of the Contract Act widens the definition of "consideration" so as to enable a party to a contract to enforce the same in India in certain cases in which the English Law would regard that party as the recipient of a purely voluntary promise and would refuse to him a right of action on the ground of nudum pactum. Not only, however, is there nothing in Section 2 to encourage the idea that contracts can be enforced by a person who is not a party to the contract, but this notion is rigidly excluded by the definition of 'promisor' and 'promisee'. The decision of <ORG> (1861) 1 B. & S. 393 : 30 L.J.Q.B. 265 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 124 R.R. 610 was a decision at law and was unaffected by the rules of equity. For this reason <ORG> in <CITATION> 7 Ind. Cas. 237 : 32 A. 410 : 37 I.A. 152 : 14 C.W.N. 865 : 7 A.L.J. 871 : (1910) M.W.N. 313 : 8 M.L.T. 147 : 12 C.L.J. 205 : 12 Bom. L.R. 638 : 20 M.L.J. 614 (P.C) regarded it as inapplicable to the facts of the case before them where the agreement included a specific charge on immoveable property. In my judgment it is erroneous on the basis of that case or on the observations of <NAME>, C.J., in <NAME> v. Chuni Lal Ghose 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 to suppose that in India persons who are not parties to a contract can be admitted to sue thereon, except where there is an obligation in equity amounting to a trust arising out of the contract. I say nothing as to whether special rules of law may be applicable to communities among whom marriages are contracted for minors by parents and guardians, but putting aside such cases, I see no reason to think that the law in India contains a series of exceptions to the principle that a contract can only be sued upon as such by a party thereto. A trust may be founded on a contract and is capable of being enforced by a party to the trust in appropriate proceedings as was pointed out in <NAME> v. <NAME> (1852) 10 Hare 163 : 68 E.R. 882 : 90 R.R. 314. It is another matter altogether to say that a person not a party to a contract may bring a suit upon the contract by reason of near relationship to the promisee. Nearness of relationship is a fact which, like many other facts, cannot be disregarded in determining the question whether or not a trust arises out of or is founded on a contract, but it has no other importance. Cases such as the present can be decided, and ought to be decided, on the settled principles of equity. In <NAME>'s case (1892) 1 Q.B. 147 : 61 L.J.Q.B. 128 : 66 L.T. 220 : 40 W.R. 230 : 56 J.P. 180 the <ORG> considered whether the Policy amounted to a trust for the widow and, having found that it did not, determined the matter by the ordinary law of contract. This, in my judgment, is the only method which can be justified in principle. To hark back to such cases as <NAME> v. <NAME> (1688) 2 Lew. 210 : 83 E.R. 523 and <NAME> v. <NAME> (1680) 1 Ven. 6 : 86 E.R. 5 is, in my judgment, a clear mistake and the mistake is not cured by the circumstance that under the Contract Act , the definition of "consideration" is wider than in English Law.


PETITIONER: SHIV KUMAR CHADHA ETC. ETC. Vs. RESPONDENT: MUNICIPAL CORPORATION OF DELHI AND ORS. DATE OF JUDGMENT04/05/1993 BENCH: <NAME> BENCH: <NAME> VENKATACHALLIAH, M.N.(CJ) SAWANT, P.B. CITATION: 1993 SCR (3) 522 1993 SCC (3) 161 JT 1993 (3) 238 1993 SCALE (2)772 ACT: % Code of Civil Procedure, 1908: Section 9-Civil <ORG>'s jurisdiction- Ouster when. Delhi Municipal <ORG> Act, 195: Sections 343 , 347E -Suits in connection with orders passed or proceedings initiated for demolition of constructions- Maintainability of-Directions of Supreme <ORG>. Code of Civil Procedure, 1908: Order 39, Rule 3, proviso Temporary injunction-Granting of- When-<ORG>'s duty-Reasons for grant of injunction-Mandatory to record-<ORG> directions. HEADNOTE: In respect of some private dispute between two neighbors a writ application was filed in <ORG>. On the material produced in the case it was treated as a Public Interest Litigation and <ORG> was to rind out a solution in respect (if unauthorised constructions alleged to have been made by different owners/occupiers/builders without sanctioned plans or by making deviations from the sanctioned plans. <ORG> wanted to ensure that such unauthorised constructions were not perpetuated on the basis of interim orders of injunction passed by <ORG>. <ORG> disposed of the petition holding that the owners/ occupiers/builders were to be given liberty to file fresh building plans and that <ORG> was to examine such building plans in accordance with law and that the <ORG> was to seal and to demolish those constructions which were beyond the compoundable limits. <ORG> also directed that no civil suit would be entertained by any <ORG> in Delhi in respect of any action taken or proposed to be taken by the <ORG> with regard to the sealing and/or demolition of any building or any part thereof. <ORG> directed further that person aggrieved by an order of sealing or demolition had the right to file an appeal to <ORG> under the Delhi Municipal <ORG> Act, 1957. 522 523 Against <ORG>'s order the present appeals were filed by special leave. On the question, "whether the jurisdiction of the <ORG> has been statutorily barred in respect of suits in connection with the orders passed or proceedings initiated for demolition of constructions, which have been made without sanction or by deviating from the sanctioned plans", allowing the appeals, this <ORG>, HELD:1.1. With the increase in the number of taxing statutes, welfare legislations and enactments to protect a class of citizens,a trend can be noticed that most of such legislations confer decision making powers on various authorities and they seek to limit or exclude <ORG>'s power to review those decisions. The result is that the power of the <ORG> under section 9 of the Code is being denuded and curtailed by such special enactments, in respect of liabilities created or rights conferred. The ouster of the jurisdiction of the <ORG> is upheld on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided therein Was adequate. (535-D-F) 1.2.The situation will be different where a statute purports to curb and curtail a pre-existing common law right and purports to oust the jurisdiction of the <ORG> so far remedy against the orders passed under such statute are concerned. In such cases,the courts have to be more vigilant, while examining the question as to whether an adequate redressal machinery has been provided, before which the person aggrieved may agitate his grievance. (535-G) 1.3.In spite of the bar placed on the power of the <ORG>, orders passed under such statutes can be examined on "jurisdictional question". A suit will be-maintainable. (536-F) <NAME> v. <NAME>, AIR 1974 SC 1069; <CITATION> , AIR 1964 SC 807; <ORG> v. <ORG>, 1960 A.C. 260 and <CITATION> , 1969 2 AC 147, relied on. <ORG> v. <NAME>,  6 524 C.B. (N.S.) 336; <NAME> v. <ORG> Newspaper Limited.  Appeal Cases 368; <NAME> v. <NAME>,  Appeal Cases 615; <CITATION> ., AIR 1940 P.C. 105; <CITATION> . <ORG>, Ludhiana, AIR 1963 SC 1547; <CITATION> , AIR 1964 SC 322; <CITATION> , AIR 1965 SC 1942; <CITATION> , AIR 1966 SC 893; <CITATION> and sons, AIR 1966 SC 1738; <CITATION> , 3 SCR 214; <CITATION> , 3 SCR 736; <CITATION> , AIR 1969 SC 78; <CITATION> , AIR 1975 SC 2238= 1 SCC 496; <CITATION> , AIR 1977 SC 955=  2 SCC 472; <CITATION> , AIR 1979 SC 1250= 3 SCC 83; <NAME> v. Grain Panchayat, Mehal Kalan, AIR 1986 SC 2197=4 SCC 364; <CITATION> , AIR 1988 SC 752=  SCC 681 and <NAME> v. GobindRam Bohra,  1 SCC 193, referred to. 1.4. The Delhi Municipal <ORG> Act purports to regulate the common law right of the citizens to erector construct buildings of their choice. This right existed since time immemorial. But with the urbanisation and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. But as the provisions of the Act intend to regulate and restrict a common law right, and not any right or liability created under the Act itself, it cannot be said that the right and the remedy have been given unoflatu e.g. "in the same breath". (537-E) 1.5. In spite of the bar prescribed under sub-sections (4) and (5) of section 343 and section 347E of the <ORG> Act over the power of the <ORG>s, under certain special circumstances,the <ORG> can examine, whether the dispute falls within the ambit of the Act. But once the <ORG> is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens. (537-C) 1.6. The regulations and bye-laws in respect of buildings, are meant to 525 serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the <ORG>. In some special cases where "jurisdictional error" on the part of the <ORG> is established, a suit shall be maintainable. (538-C) 1.7. The <ORG> should not ordinarily entertain a suit in connection with the proceedings initiated for demolition by the Commissioner, in terms of section 343 (1) (of the <ORG> Act . The <ORG> should direct the persons aggrieved to pursue the remedy before <ORG> and then before the Administrator in accordance with the provisions of the said Act. (538-D) 1.8. The <ORG> should entertain a suit questioning the validity of an order passed under section 343 of the Act, only if the <ORG> is of prima facie opinion that the order is nullity in the eyes of law because of any "jurisdictional error" in exercise of the power by the Commissioner or that the order is outside the Act. (538-E) 2.1. A party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the <ORG> and such discretion is to he exercised in favour of the plaintiff only if it is proved to the satisfaction of the <ORG> that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. (538-H) 2.2.The purpose of temporary injunction is, to maintain the status quo. The <ORG> grants such relief according to the legal principles- ex debite justitiae. Before any such order is passed the <ORG> must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. (539B) 2.3. 'The <ORG> should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law (or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the <ORG>. (539- 1)) 526 2.4. Power to grant injunction is an extra-ordinary power vested in the <ORG> to he exercised taking into consideration the facts and circumstances of a particular case. The <ORG>s have to be more cautious when the said power is being exercised without notice or hearing the party who is to he affected by the order so passed. (539-E) 2.5. In spite of the statutory requirement, in order 39, Rule 3 the <ORG>s have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that <ORG> has prejudged the issues involved in the suit. This is a misconception about the nature and the scope of interim orders. Any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party,, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 of Order 39, there is no scope for any argument. When the statute itself requires reasons to he recorded, the <ORG> cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant (539-H, 540-H) 2.6. Proviso to Rule 3 of Order39 of the Code, attracts the principle, that if a statute requires a thing to he done in a particular manner, it should be done in that manner or not all. <NAME> v. <NAME>, (1875)1 Ch. D. 426; <CITATION> , AIR 1936 PC 253 and <CITATION> , AIR 1975 SC 915, relied on. 2.7. Whenever a <ORG> considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an exparty order is not passed. But any such exparty order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. (541-C) Supreme <ORG> Practice 1993, Vol. 1, at page 514, referred to. 527 2.8.The <ORG> should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the <ORG> or any competent authority of the <ORG> and the order should be passed only after hearing the parties. (541-F) 2.9.If the circumstances of a case so warrant and where the <ORG> is of the opinion, that the object of granting the injunction would be defeated by delay, the <ORG> should record reasons for its opinion as required by proviso to Rule 3 of Order 39 of the Code, before passing an order for injunction. The <ORG> must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the <ORG>. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of Order 39 aforesaid. If the <ORG> has entered appearance, any such ex parte order of injunction should be extended only after hearing the counsel for the <ORG>. (541-H, 542- A) 2.10.While passing an exparte order of injunction the <ORG> shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of. (512-C) JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2531-33 of 1993.

From the Judgment and Order dated 19.2.1991 of <ORG> in C.W.P. No. 3499 of 1989.

<NAME>, <NAME>, Ms. <NAME> and Ms. <NAME> for the Appellants.

<NAME>, <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME> Special leave granted.

These appeals have been filed against an order passed by <ORG> directing <ORG> (hereinafter referred to as "the <ORG>") to issue appropriate notices to the owners/occupiers/builders of the building where illegal constructions have been made. A liberty has been given to the owners/occupiers/builders to file fresh buildings plans with the <ORG> in conformity with the existing bye- laws. The building plans as filed are to be examined in accordance with the law. The <ORG> has been directed that if it finds that the constructions are beyond the compoundable limits, then to seal the same and to demolish thereafter.

The appellants have no grievance so far as the aforesaid part of the order is concerned. They have sought interference of this <ORG> with the other part of the order, where it has been said that "no civil suit will be entertained by any court in Delhi in respect of any action taken or proposed to be taken by the <ORG> with regard to the sealing and/or demolition of any building or any part thereof. Any person aggrieved by an order of sealing or demolition which is passed shall, however, have the right of filing an appeal to <ORG> under the Municipal Act. <ORG> is the only forum which has the jurisdiction to grant interim relief." The other part of the order in respect of which objection has been taken is where the <ORG> has directed the <ORG> to approach those courts which have already issued injunction "for variation and vacation of the injunction orders in the light of" the said order.

Initially a writ application was filed in respect of some private dispute between two neighbours. In due course on the material produced by one party or the other it was treated as a Public Interest Litigation and by the impugned order <ORG> has purported to find out a solution in respect of unauthorised constructions alleged to have been made by different owners/ occupiers/builders in the different parts of the city without sanctioned plans or by making deviations from the plans which had been sanctioned. The Court has also purported to ensure that such unauthorised constructions are not perpetuated on the basis of interim orders of injunction passed by Civil Courts. It cannot be disputed that by the impugned order the jurisdiction of any Court in Delhi to entertain any suit in connection with demolition of any part of any building which, according to the <ORG>, is unauthorised and illegal has been ousted.

The Delhi Municipal <ORG> Act, 1957 (hereinafter referred to as "the <ORG> Act ") has made provisions for the constitution of the <ORG> and has prescribed the procedure for election of the councillors, levy of taxes, sanitation and public health. Chapter XVI contains provisions regarding erection of buildings within the <ORG> area. Section 331 defines the expression "to erect a building". Section 332 says that" no person shall erect or commence to erect any building or execute any of the works specified in section 334 except with the previous sanction of the Commissioner". The relevant part of section 343 is as follows:-

"343. Order of demolition and stoppage of buildings and works in certain cases and appeal .................................... (2)Any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to <ORG> within the period specified in the order for the demolition of the erection or work to which it relates.

(3)Where an appeal is preferred under sub-section(2)against an order of demolition, <ORG> may, subject of the provisions of sub-section (3) of section 347 C, stay the enforcement of that order on such terms, if any, and for such period, as it may think fit:

Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by <ORG> unless security, sufficient in the opinion of the said <ORG> has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.

(4)No Court shall entertain any suit, application or order proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.

(5)Subject to an order made by the Administrator on appeal under section 347 D, every order made by <ORG> on appeal under this section, and subject to the orders of the Administrator and <ORG> on appeal. the order of demolition nude by the Commissioner shall be final and conclusive".

Section 344 vests power in the Commissioner to stop the construction of the building where the erection of such building or execution of any work has been commenced or is being carried on either without sanction or contrary to sanction so granted or in contravention of any condition subject to which sanction has been accorded. Under section 345A , the Commissioner at any time, before or after making an order of demolition under section 343 or of the stoppage of the erection of any building or execution of any work under section 343 , can make an order directing the sealing of such erection or work or of the premises in which such erection or work is being carried or has been completed. A further appeal has been. provided under section 347D to the Administrator against the order of <ORG>. Section 347E says:- "347E. Bar of jurisdiction of courts.

(1) After the commencement of section 7 of the Delhi Municipal Corporation (Amendment) Act, 1984, no court shall entertain any suit, application or other proceedings in respect of any order or notice appealable under section 343 or section 347B and no such order or notice shall be called in question otherwise then by preferring an appeal under these sections.

(2)Notwithstanding anything contained in sub-section (1), every suit, application or other proceeding pending in any court immediately before the commencement of section (7) of the Delhi Municipal Corporation (Amendment) Act, 1984, in respect of any order or notice appealable under section 343 or section 347B , shall continue to be dealt with and disposed of by that court as if the said section had not been brought into force."

Because of sub-sections (4) and (5) of section 343 and section 347E aforesaid the stand of the <ORG> is that the Courts have been debarred from entertaining suits, applications or proceedings for injunction, against any order or notice for demolition and the order of demolition passed by the Commissioner, subject to appeals before <ORG> and Administrator shall be deemed to be final and conclusive.

In spite of several pronouncements of this <ORG> during the last four decades, the question as to whether the jurisdiction of the <ORG> has been statutorily barred in respect of suits in connection with the orders passed or proceedings initiated for demolition of constructions, which have been made without sanction or by deviating from the sanctioned plans, has to be answered.

Section 9 of the Code of Civil Procedure, (hereinafter referred to as "the Code") says that <ORG>s shall have jurisdiction to try all suits of civil nature "except suits of which their cognizance is either express Iyor impliedly barred".According to the <ORG> once the jurisdiction of the <ORG> to try a suit in which the validity of any order passed under the provisions of the <ORG> Act or the notice issued thereunder has been specifically barred and an internal remedy has been provided for redressal of the grievances of the persons concerned, there is no scope for <ORG> to entertain a suit.

In the olden days the source of most of the rights and liabilities could be traced to the common law. Then statutory enactments were few. Even such enactments only created rights or liabilities but seldom provided forums for remedies. The result was that any person having a grievance that he had been wronged or his fight was being affected, could approach the ordinary <ORG> on the principle of law that where there is a right there is a remedy-ubi jus ibi remedium. As no internal remedy had been provided in the different statutes creating rights or liabilities, the ordinary <ORG>s had to examine the grievances in the light of different statutes. With the concept of the Welfare State, it was realised that enactments creating liabilities in respect of payment of taxes obligations after vesting of estates and conferring rights on a class of citizens, should be complete codes by themselves. With that object in view, forums were created under the Acts themselves where grievances could be entertained on behalf of the persons aggrieved. Provisions were also made for appeals and revision to higher authorities. Then a question arose as to where a particular Act had created a right or liability and had also provided a forum for enforcement of such right or for protection from enforcement of a liability without any authority in law, whether a citizen could approach a <ORG>. It may be pointed out that many statutes have created certain rights or liabilities and have also provided the remedial measures in respect thereof. But such statutes have not touched the common law rights of the citizen. But there are some statutes, which in public interest affect even the common law rights or liabilities of toe citizen, which were in the nature of existing rights. The distinction between the two types of rights or liabilities is subtle in nature but at the same time very vital.

In one of the earliest case of <ORG> v.

<NAME>, (1859) 6 C.B. (N.S.) 336, <NAME>, J, said:- "There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common-law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if any liability at all exists. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class." The same view was reiterated by <ORG> in <NAME> v. <ORG>, (1919) Appeal Cases 368. In <NAME> v. <NAME>, (1897) AC 615, it was said:-

"I do not think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right."

It was further pointed out "The right and the remedy are given uno flatu, and the one cannot be dissociated from the other."

In the well-known case of <CITATION> ., AIR 1940 Privy Council 105, this question was considered in connection with Sea Customs Act (1878). It was said:- "It is settled law that the exclusion of the jurisdiction of <ORG> is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, <ORG> have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure."

But having enunciated the general principle in respect of ouster of the jurisdiction of <ORG> it was said:- "But, in their Lordships' opinion, neither Sec, 32 nor the principle involved in the decision in 401 A 48, affect the validity of an Act of the Indian Legislature which creates an obligation and provides an exclusive Code for its determination such an obligation is not covered by sub s. (2) of Section 32 ."

In connection with the imposition of Terminal Tax on salt under the Punjab Municipal Act. <CITATION> committee. Ludhiana, AIR 1963 SC 1547, it was said that where a statute created a liability and provided a remedy, party aggrieved should pursue the remedy provided under the Act. A Constitution Bench of this Court in <CITATION> , AIR 1964 SC 322, considered the provisions of Madras General Sales Tax Act and the exclusion of the jurisdiction of <ORG>. It was pointed out that there was an express and unambiguous prohibition and no suit could be entertained by <ORG>. In connection with the Bombay Sales Tax Act the same view was reiterated by a Constitution Bench of this Court in <CITATION> AIR 1965 SC 1942. <CITATION> chand, AIR 1966 SC 893, a Constitution Bench examined the bar on the jurisdiction of <ORG> in connection with the <ORG> and TenantsU.P. (Temporary) control of Rent and Eviction Act , and came to the conclusion that a special statute had excluded the jurisdiction in clear and unambiguous words and it had provided an adequate and satisfactory alternative remedy to a party. That may be aggrieved by the relevant order and as such the jurisdiction of <ORG> had been ousted. This very question was examined in State of Kerala v. MI s <NAME> and sons, AIR 1966 SC 1738, in connection with the Travancore-Cochin General Sales Tax Act and it was held that the jurisdiction of <ORG> would be deemed to have been excluded because the legislature had set up a special tribunal to determine the question relating to rights or liabilities. which had been created by the statute. Again in connection with the provisions of the Evacuee Property Act , in <CITATION> ,  3 SCR 214 and <CITATION> ,  3 SCR 736, it was held that complete machinery for adjudication of all claims had been provided under the Act and there being a bar on the jurisdiction of any court, the Act over-rides other laws, including Section 9 of the Code of Civil Procedure and there was no scope for <ORG> to entertain any suit.

The Constitution Bench in <NAME> v. State of Madya Pradesh, AIR 1969 SC 78, said:-

"Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."

In connection with the Industrial Disputes Act , in <CITATION> . AIR 1975 SC 2238 =  1 SCC 496, it was pointed out that "<ORG> will have no jurisdiction to try and adjudicate upon an industrial dispute, if it concerned enforcement of certain right or liability created only under the Act. " The jurisdiction of <ORG> in connection with the levy of octroi duty under the C.P. and Barar Municipalities Act, 1922 was examined by this Court in <CITATION> , AIR 1977 SC 955 1 9771 2 SCC 472, and held it was barred.

Whether the Court can hear and determine suits relating to levy of professional tax under the Punjab Municipal Act, 1971 was examined in the case of <CITATION> . Chheharta, AIR 1979 SC 1250 =  3 SCC 83, and it was held:-

Where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excludes." It was pointed out in <CITATION> , AIR 1986 SC 2197 =  4 SCC 364, that when by a special statute rights have been created and jurisdiction of the <ORG> has been barred then the jurisdiction of the <ORG> to try such suits has been taken away. In the case of <CITATION> , AIR 1988 SC 752 =  1 SCC 68 1, it was said:-

"... Wherever a right, not preexisting in common-law is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil courts'jurisdiction is impliedly barred." The jurisdiction of <ORG> to entertain a suit for ejectment was examined in <NAME> v. GobindRam Bohra, [1990] 1 SCC 193, and it was held that the Rent Control Act was a complete Code and the jurisdiction to try a case for ejectment was exclusive under that Act. With the increase in the number of taxing statutes, welfare legislations and enactments to protect a class of citizens, a trend can be noticed that most of such legislations confer decision making powers on various authorities and they seeks to limit or exclude <ORG>'s power to review those decisions. The result is that the power of the <ORG> under section 9 of the Code is being denuded and curtailed by such special enactments, in respect of liabilities created or rights conferred. This <ORG> in the judgments referred to above has upheld the ouster of the jurisdiction of the <ORG> on examination of two questions (1) Whether the right or liability in respect whereof grievance has been made, had been created under an enactment and it did not relate to a pre-existing common law right? (2) Whether the machinery provided for redressal of the grievance in respect of infringement of such right or imposition of a liability under such enactment, was adequate and complete? The ouster of the jurisdiction of the <ORG> was upheld on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided therein was adequate.

But the situation will be different where a statute purports to curb and curtail a pre-existing common law right and purports to oust the jurisdiction of the <ORG> so far remedy against the orders passed under such statute are concerned. In such cases, the courts have to be more vigilant, while examining the question as to whether an adequate redressal machinery has been provided, before which the, person aggrieved may agitate his grievance. In the case of katikara Chintamani Dora v. <NAME>, AIR 1974 SC 1069, this <ORG> after referring to the case of <CITATION> , AIR 1964 SC 807, observed:-

"It was pertinently added that this exclusion of the jurisdiction of <ORG> would be subject to two limitations. First, <ORG>s have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors." It was held that a suit for declaration that "the decision of the Settlement Officer/Tribunal holding certain properties to be an 'estate' under section 3(2) (d) of the 1908 Act was void, was maintainable on the ground that the suit property was not an'inam village'. In <ORG> v. <ORG>,  A.C. 260, the appellants sought a declaration of their common law right to quarry their land without the need to obtain planning permission under the Town and Country Planning Act, 1947. In that connection it was said:-

"The appellant company are given no new right of quarrying by the Act of 1947. Their right is a common law right and the only question is how far it has been taken away. They do not uno flatu claim under the Act and seek a remedy elsewhere. On the contrary, they deny that they come within its purview and seek a declaration to that effect."

In spite of the bar placed on the power of the <ORG>. orders passed under such statutes can be examined on "jurisdictional question". To illustrate-, a special machinery has been provided for removal of the encroachments from public land' under different enactments in different states and the jurisdiction of the <ORG> has been barred in respect of the orders passed by such special tribunals or authorities constituted under such Acts. Still a suit will be maintainable before a <ORG> on a plea that the land in question shall not be deemed to be public land within the meaning of the definition of public land given in the Act in question, and as such provisions thereof shall not be applicable.

In the case of <ORG> v. <ORG>, (1969) 2 AC 147, a wide interpretation has been given to the word 'jurisdiction' by <ORG>. It was pointed out that in many cases where although the <ORG> has jurisdiction to enter upon an enquiry, it has done or failed to do something in the course of such enquiry which is of such a nature that its decision becomes a nullity. By mere reference to different provisions of the Corporation Act it shall appear that the Act does not create any right or liability. Chapter XVI of the Act only purports to regulate the erection of the buildings within the Corporation area, so that erections of the buildings within the Corporation area are systematic, planned and do not adopt the character of mushroom growth. In view of the Provisions of the Act , whenever it is discovered that erection of any building or execution of any work has been commenced or is being carried or has been completed, either without sanction or contrary to the sanction or in contravention of any condition subject to which such sanction had been accorded, the Commissioner can make an order directing that such erection or work shall be demolished. Any person aggrieved by an order has been given a right to prefer an appeal before <ORG> and thereafter to the Administrator. Subject to any order passed by the Appellate <ORG> and the Administrator, the order for demolition shall be deemed to be final and conclusive.

According to us, it cannot be urged that the provisions of the Act have created any right or liability and for enforcement thereof remedy has been provided under the Act itself. The Act purports to regulate the common law right of the citizens to erect or construct buildings of their choice. This right existed since time immorial. But with the urbanisation and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. But as the provisions of the Act intend to regulate and restrict a common law right, and not any right liability created under the Act itself, it cannot be said that the right and the remedy have become given uno flatu e.g. "in the same breath". Most of the cases of this Court referred to above related to statutes creating rights or liabilities and providing remedies at the same time. As such the principles enunciated therein, shall not be fully applicable in the present case. In spite of the bar prescribed under sub-sections (4) and (5) of section 343 and section 347E of the <ORG> Act over the power of the <ORG>, under certain special circumstances, the Court can examine, whether the dispute falls within the ambit of the Act. But once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens. Can a Court hold a suit to be not maintainable, although along with the plaint materials are produced to show that the building in question is not within the <ORG> limits, or that the constructions were made prior to coming into force of the relevant provisions of the Act? We are conscious of the fact that persons who make unauthorised constructions by contravening and violating the building bye-laws or regulations often run to <ORG>, with pleas mentioned above, specially that no notice was issued or served on them, before the <ORG> has ordered the demolition of the construction.

It is well-known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. There cannot be two opinions that the regulations and bye- laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the <ORG>. In some special cases where "jurisdictional error" on the part of the <ORG> is established, a suit shall be maintainable. According to us, (1)The <ORG> should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of section 343 (1) of the <ORG> Act . The <ORG> should direct the persons aggrieved to pursue the remedy before <ORG> and then before the Administrator in accordance with the provisions of the said Act.

(2)The Court should entertain a suit questioning the validity of an order passed under section 343 of the Act. only if the Court is of Prima facie opinion that the order is nullity in the eyes of law because of any "jurisdictional error" in exercise of the power by the commissioner or that the order is outside the Act.

TEMPORARY INJUNCTION It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the <ORG>. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course., Grant of injunction is within the discretion of the <ORG> and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the <ORG> that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The <ORG> grants such relief according to the legal principles--ex debite justitiae. Before any such order is passed the <ORG> must be satisfied that a strong primafacie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. Under the changed circumstance with so many cases pending in <ORG>s, once an interim order of injunction is passed, in many cases, such interim orders continue for months; if not for years. At final hearing while vacating such interim orders of injunction in many cases, it has been discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to continuance of interim orders of injunction without final hearing. It is a matter of common knowledge that on many occasions even public interest also suffers in view of such interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applications. The court should be always willing to extent its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot-be. used to protect or to perpetuate a wrong committed by a person who approaches the <ORG>.

Power to grant injunction is an extraordinary power vested in the <ORG> to be exercised taking into consideration the facts and circumstances of a particular case. The <ORG>s have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in ail cases the <ORG> shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the opposite party, the <ORG> shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay......

It has come to our notice that in spite of the aforesaid statutory requirement, the <ORG> have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that <ORG> has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the <ORG> cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the Proviso aforesaid was introduced, Rule 3 said "the <ORG> shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party". The proviso was introduced to provide a condition, where <ORG> proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the <ORG> "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the <ORG> for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the <ORG> about the gravity of the situation and <ORG> has to consider briefly these factors in the ex parts order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the <ORG> or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance there of will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The <ORG> has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a conditions has been imposed that <ORG> must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the <ORG> shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of <NAME> v. <NAME>. (1875) 1 Ch. D. 426, <CITATION> , AIR 1936 PC 253. This <ORG> has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of <CITATION> , AIR 1975 SC 915. As such whenever a <ORG> considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side. It must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force upto a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme <ORG> Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English <ORG> saying:- "Exparte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion....

An ex parte injunction should generally be until a certain day, usually the next motion day. . . ."

Accordingly we direct that the application for interim injunction should be considered and disposed of in the following manner:-

(i)The Court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the <ORG> or any competent authority of the <ORG> and the order should be passed only after hearing the parties.

(ii)If the circumstances of a case so warrant and where the <ORG> is of the opinion, that the object of granting the injunction would be defeated by delay, the <ORG> should record reasons for its opinion as required by proviso to Rule 3 of order 39 of the Code, before passing an order for injunction. The <ORG> must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the <ORG>. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of order 39 aforesaid If the <ORG> has entered appearance, any such exparte order of injunction should be extended only after hearing the counsel for the <ORG>.

(iii)While passing an ex parte order of injunction the Court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of.

In the result, the appeals are allowed to the extent indicated above. In the circumstances of these cases, there shall be no order as to costs.

VPR. Appeals allowed.


PETITIONER: NAND KISHORE MARWAH & OTHERS Vs. RESPONDENT: SMT. SAMUNDRI DEVI DATE OF JUDGMENT17/09/1987 BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) MUKHARJI, SABYASACHI (J) CITATION: 1987 AIR 2284 1988 SCR (1) 158 1987 SCC (4) 382 JT 1987 (3) 590 1987 SCALE (2)555 CITATOR INFO : R 1988 SC2021 (6) D 1988 SC2164 (7) D 1989 SC1247 (25) RF 1990 SC 897 (10) R 1992 SC1106 (12) ACT: Landlord-tenant matter-Provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act , 1972- Sections 2 , 39 , 40-Applicability thereof to the case- Protection granted to the tenants under the Act-Whether available to the tenants in the case. HEADNOTE: The appellants are the tenants of the disputed property. Respondent-plaintiff's suit for eviction of the appellants was dismissed by the trial court. <ORG> in revision set aside the judgment and order of the trial court and decreed the suit for ejectment of the tenants- appellants. The tenants appealed to this <ORG>. Dismissing the appeal, the <ORG>, HELD: Under the provisions of sub-section (2) of Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act , 1972, newly-constructed buildings stand exempted from the operation of the Act for a period of ten years, which has to be computed from a date to be determined in the manner indicated in Explanation I to section 2(2) , which in this case is the date on which first assessment of the premises in dispute was made for house-tax by <ORG>, i.e. October 1, 1976. Provisions of Sections 39 and 40 are of no avail to the appellants as the suit for their eviction was not pending on July 15, 1972, when the Act came into force; the suit being filed much later after coming into force of the Act. Provisions of the Act are not applicable to the appellants' case and the protection thereunder granted to the tenants is not available to them. [166G-H; 164C, F] In view of the fact that the appellants had been carrying on business in the premises in question for a long time, the decree for eviction directed not to be executed till March 31, 1988, subject to the appellants' filing usual undertaking (within four weeks). [167C-D] <NAME>, etc. v. Dig Vijendrapal Gupta, etc., [19821 3 S.C.R. 491 and <CITATION> ,  A.l.R. S.C. 817, relied upon by the appellants. 159 <CITATION> , [19721 3 S.C.R. 922, relied upon by the respondent. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3909 of 1986.

From the Judgment and order dated 29.9.1986 of <ORG> in C.R. No. 83 of 1986.

<NAME> and <NAME> for the Appellants. <NAME> <NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME>. J. This appeal arises out of a judgment passed by <ORG> in Civil Revision No. 83 of 1986 wherein the learned Judge of <ORG> allowed the revision petition set aside the judgment and decree of the Trial Judge and decreed the plaintiff suit for ejectment of the appellant. The disputed property was let out on June 25, 1976. The accommodation was for the first time assessed for house-tax by <ORG> with effect from October 1, 1976. The suit was filed for eviction after termination of tenancy before the trial court and objection was raised that as the shop and the basement were separately let out the tenancy could not be terminated by a single notice that would be invalid. The trial court therefore dismissed the suit. <ORG> set aside this conclusion of the trial court.

The main ground which was before <ORG> was as to whether the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act , 1972 ('Act' for short) will be applicable to these proceedings in view of the fact that although the premises were let out in June 1976 but as the assessment was made on October 1, 1976 the provisions of the Act referred to above will not apply for 10 years from October 1, 1976 and therefore the suit could be decreed as the protection available under this Act will not be available to the tenant.

<ORG> after discussing various decisions came to the conclusion that in view of the language of Section 2 sub-clause 2 Explanation 1, it could not be doubted that period of 10 years will commence from the date of assessment i.e. October 1, 1976 that it is in that view of the matter that the learned Judge of the <ORG> decreed the suit and hence the present appeal.

Learned counsel for the appellant contended that apart from the controversy about the date which should be the starting point for computing the period of 10 years in view of the language of Sections 39 and 40 of the Act, provisions of this Act will be applicable to the present case and therefore a decree for eviction could only be passed. If it could be passed on anyone of the grounds mentioned in Section 20 clause 2 of this Act in support of this contention the learned counsel placed reliance on decisions in <NAME> etc. v. <NAME> etc., 11982] 3 SCR 491 and <CITATION> , [ 1985] A.I.R. SC 817.

On the other hand learned counsel for the respondent contended that the rights of parties will be governed on the basis of the date on which the suit was filed and it was contended that if on the date on which the suit was filed by the respondent the provisions of this Act were not applicable then merely because the proceedings have been pending for all these years it could not be contended that as now 10 years elapsed the decree could not be passed. Learned counsel placed reliance on a decision in <CITATION> , 11972] 3 SCR 922 and contended that this is a decision of three Judges Bench which clearly hold that if the suit was filed within a period of exemption then the suit could be decreed and the provisions of the Act will not be applicable. Learned counsel further contended that in the decision in <NAME> case (supra) on which reliance has been placed by learned counsel for the appellant the Firms Amar Naath Basheshar Dass's case (supra) has not been referred to and decision in <NAME> case (supra) is a judgment by a Bench of two Judges.

It was also contended by learned counsel that as till the matter was pending in <ORG> 10 years have not been completed and therefore <ORG> passed the decree Now it could not be contended that as during the pendency of the proceedings in this Court 10 years have elapsed and therefore the appellant-tenant will be entitled to protection of the provisions of Section 20 It was contended that it is well-settled that if the right to file a suit accrues on the date of tiling of the suit then the rights will have to be determined on the basis of the law applicable on the date of the suit and not subsequently.

Learned counsel for the appellant contended that the decision in Firms <NAME>'s case (supra) will not be applicable to the present case as in that case this <ORG> was considering the language of a notification issued under the East Punjab Act exempting buildings from the operation of the Act for five years and the view taken by this <ORG> in that decision is based on the language of the notification issued whereas in view of the language of Sections 39 and 40 of the Act which is applicable to the present case that view is not possible and it is because of this that in <NAME> case (supra) this <ORG> took the view that if during the pendency of the proceedings 10 years have elapsed the tenant will be entitled to the benefit of the provisions of the Act. It was contended that in this decision the <ORG> was concerned with the provisions of Section 2 of the Act itself.

Before this Court also the only question that was raised on behalf of the parties was as to whether the provisions of the Act will be applicable or not and as to whether the protection granted to the tenants under this Act will be available to the present appellant Learned counsel for the appellant contended that as during the pendency of this matter in this Court 10 years have elapsed even if the date of completion is taken to be 1. 10.76 which is the date on which the first assessment of this property was made and during the pendency of this matter 1. 10.86 has been crossed now the period of exemption has come to an end and therefore the appellant is entitled to the benefits thereof. In the alternative it was contended that even if it is held that the rights of parties have to be determined in respect of the date on which the suit was filed still because of the language of Sections 39 and 40 of this Act the appellant- tenant will be entitled to protection under this Act Sub- clause (2) Sec. 2 of the Act reads as under:

"(2) Except as provided in sub-section (5) of Section 12 , sub-section (1-A) of Section 21 , sub- section (2) of Section 84 , Sections 24-A , 24-B , 24-C or sub-section (3) of Section 29 , nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed:

Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from <ORG> or <ORG> or a bank or a co-operative society or <ORG>, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter:

Explanation I-For the purposes of this sub- section,

(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time:

Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants:

(b)"construction" includes any new construction in place of an existing building which has been wholly or substantially demolished;

(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition."

A perusal of this provision will clearly indicate that the new buildings constructed have been exempted from the operation of this Act for a period of 10 years. This period of 10 years have to be computed in the manner from the date as indicated in Explanation 1 and it was contended by learned counsel for the respondents that it will be the date on which the first assessment was made and so far as this question is concerned, it is also concluded by a decision of this Court in <NAME> case (supra) where it has been clearly held while interpreting Sec. 2 Explanation I of this Act that if there is an assessment made then the date of completion of the building, the date from which 10 years are to be computed will be the date on which the first assessment was made. In this view of the matter therefore it is clear that 10 years have to be computed from 1. 10.76, and it is because of this that even the learned counsel for the appellant did not seriously contend that the 10 years commence from 1.10.76.

It is true that the decision reported in Firms <NAME>'s case (supra) is a decision on the Punjab Act where the question before this Court was about the language of the notification which was issued under the Act exempting the buildings from operation of the Act for a period of S years and it is true that the language of the notification was not identical with the language of Sec. 2 sub-clause 2 quoted above.

But apart from it the contention advanced by the learned counsel for the appellant was that because of the language of Section 39 and 40 even if the matter is pending in this Court and 10 years have elapsed, appellant will be entitled to the benefit of the provisions of this Act because according to him the appeal will be a continuation of the suit and therefore the advantage will be available. It is no doubt true that the appeal is the continuation of the suit and if within the language of Section 39 the appellant is entitled to the advantage of the Section even if the matter is pending in this Court the protection will be available to the appellant but looking to the language of Section 39 it appears that the contention of the learned counsel could not-be accepted.

"39. Pending suits for eviction relating to buildings brought under regulation for the first time-In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine cent per annum and the landlord's full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) A to (g) of sub-section (2) of Section 20 , and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary: Provided that a tenant the rent payable by whom does not exceed twenty-five rupees per month need not deposit any interest as aforesaid:"

It is pertinent to note that this Section applies to those suits which were pending on the date of the commencement of this Act. Admittedly this Act came into force on 15th July, 1972 and therefore if the suit was pending on that date it is only then that the provisions of Section 39 will come to the assistance of the tenant- appellant. Admittedly this suit was not pending on the date on which this Act came into force. An attempt was made to contend that so far as the present property is concerned the Act will be deemed to have come into force on the expiry of 10 years i.e. 1.10.86 but this contention could not be accepted as it is very clear from the language of this Act that it applied I only to a suit pending on the date of the commencement of this Act and this is the view taken in <NAME> case wherein it was observed:

"Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act. There is yet another reason why section 39 will have no application to the present case.

It is therefore clear that so far as the present appeal is concerned, the provisions of Section 39 will be of no avail. Section 40 of the Act reads as under:

"40. Pending appeals or revisions in suits for eviction relating to buildings brought under regulation for the first time-Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Section 39 , which shall mutatis mutandis apply."

This Section talks of the pendency of a revision or an appeal arising out of a suit pending on the day on which this Act came into force. It is clear that provisions of Section 40 will come to the rescue of the appellant-tenant only if the suit from which revision or appeal arose was pending on the date of commencement of this Act i.e. 15.7.1972 and therefore it could not be contended that the present revision petition or the appeal either to <ORG> or the appellate authority arose out of suit which was pending on the date on which this Act came into force. Admittedly the suit itself was filed much after the coming into force of this Act. In this view of the matter therefore, in our opinion, even this contention of learned counsel for the appellant could not be accepted.

It is well-settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit, but in <NAME> case (supra) this Court took the view that if during the pendency of the proceedings 10 years have elapsed the tenant is entitled to the protection under the Act and in coming to this conclusion the Court also considered the language of Section 39 of the Act and it observed:

"The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency c.f the litigation. We see no reason why the benefit of the new Rent Act be not given to the appellant. Section 20 of the new Rent Act provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the section. Subsection (4) of S. 20 stipulated that in any suit for eviction on the grounds mentioned in Cl. (a) to sub-s. (2) viz. the arrears of rent, if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposits in court the entire amount of rent and damages for the use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine per cent per annum and the landlord's cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub- s. (1) of S. 30 , the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground. Section 39 and 40 of the new Rent Act also indicate that the benefit of new Act will be given to the tenant if the conditions contemplated in those sections are satisfied. Section 39 also indicates that the parties are entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary. "

But unfortunately attention of the <ORG> was not drawn to <NAME> case (supra) which specifically considered this Act and the language of Section 39 in particular and is a decision of a Bench of three Judges which is binding on us.

The restriction on the right of a landlord to evict a tenant has been provided for in this Act under Section 20 and the language of Section 20 is also significant.

"20. Bar of suit for eviction of tenant except on specified grounds-(1) Save as provided in sub- section (2) no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:

Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceedings, which is either recorded in court or otherwise reduced to writing and signed by the tenant."

This is put in Chapter IV with the heading "Regulation and Eviction" and the section starts with title which is printed in bold "Bar of suit for eviction of tenant except on specified grounds" and again in the wording of the section itself it provides: "No suit shall be instituted for eviction." This clearly indicates that the restriction put under Section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applies then no suit for eviction can be instituted except on the grounds specified in the sub-sections of this Section. Keeping in view the language of this Section if we examine the provisions contained in sub-section (2) of Section 2 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in clause (2) of Section 2 restriction of the institution of suit as provided for in Section 20 clause (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even of 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 can not be attracted.

In the light of the discussions above therefore, in our opinion, the contention advanced by learned counsel for the appellant can not be accepted. The appellant-tenant could not be given the advantage of the provisions contained' in this Act. In this view of the matter therefore the appeal is without any substance and is dismissed.

It is true that we maintained the decree for eviction passed by <ORG> but in view of the fact that as the appellant has been carrying out the business in the premises for a long time for it would be proper to permit the appellant time to make their arrangements for shifting. We therefore direct that the decree for eviction shall not be executed upto 3 1st March, 1988 on the appellant filing a usual undertaking within four weeks. In default the respondent shall be entitled to execute the decree forthwith. In the circumstances of the case parties are directed to bear their own costs.

S.L. Appeal dismissed.