JUDGMENT
Mohammad Shamim, J.
(1) This appeal is directed against the orders dated May 29, 1997 and June 16, 1997 passed by an Additional District Judge whereby he directed the parties to maintain the status quo regarding the hoardings put up by the plaintiff/respondent (hereinafter referred to as the `respondent’ in order to facilitate the reference).
(2) Brief facts which gave rise to the present appeal are as under: that the respondent herein filed a suit for permanent injunction restraining the defendant/appellant (hereinafter referred to as the `appellant’ for the sake of convenience), their servants and agents from removing, defacing and damaging the advertisements put up by the respondent on the sit mentioned in Annexure P-1 annexed with the plaint. The respondent alongwith the said suit moved a application under Order 39 Rules 1 & 2 of the Code of Civil Procedure (`CPC’ for short) for an ad interim injunction (vide Annexure P-1) whereupon the learned lower Court issued notices returnable by June 6, 1997 and in the meanwhile, directed the parties to maintain the status quo with regard to the hoardings put up by the respondent. Subsequently, aggrieved with the said order the appellant herein moved an application under Order 26 Rule 9 read with Section 151 Civil Procedure Code for appointment of a local Commissioner for inspection of the advertisement sites as referred to in Annexure P-1. The reason for the presentation of the said application was that on inspection by the Field Inspector and the Commercial Officer of the appellant it transpired that some of the advertisement hoardings mentioned in Annexure P-1 were not in existence at all. Hence it became necessary to have the sites inspected by a local Commissioner to verify the fact as to whether the said advertisement hoardings referred to in Annexure P-1 were in existence or not at the relevant time. The said application was dismissed by the learned lower Court vide the impugned order dated June 16, 1997. The learned lower Court was of the view that there was no need for the appointment of a local Commissioner. The learned Additional District Judge again reiterated his earlier order with regard to the maintenance of the status quo by both the parties. It was in the above circumstances that the appellant has approached this Court by way of the present appeal.
(3) Learned counsel for the appellant Mrs. Madhu Tewatia has vehemently contended before this Court that the learned lower Court while passing the impugned order did not take into consideration the relevant points which are required to be looked into before passing an ex parte injunction order. According to her, as per the averments in the plaint the respondent have neither shown a prima facie case in their favour nor the balance of convenience. Furthermore, they were not likely to suffer any irreparable loss or injury in case the injunction was not granted. Hence the impugned order is nothing but a sheer abuse of the process of the Court. Thus the same is liable to be vacated by this Court.
(4) Learned counsel for the respondent Mr. R.P. Sharma, has urged to the contrary. According to him, the present appeal is not maintainable inasmuch as the injunction matter is still sub Judge before the learned lower Court. The application for ad interim injunction has so far not been disposed of on merits. Thus the impugned orders are not appealable under any of the provisions of Order 43 Rule 1 CPC.
(5) I have heard the learned counsel for the parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thoughts thereto.
(6) It is true as contended by the learned counsel for the respondent Mr.Sharma that the application for the grant of an ad interim injunction is very much sub judice before the learned lower Court as the same has not been disposed of on merits as yet, the impugned order is very much an ex parte order. Hence the same does not fall within the domain of Order 43 Rule 1 CPC. Therefore, it cannot be said by any stretch of imagination that the said order is an appealable order.
(7) This brings me to the question as to whether the appellant herein are left without any remedy keeping in view the facts and circumstances of the present case? I think this is not so. This Court as per the provisions of Article 227 of the Constitution of India has got the power of superintendence over all the subordinate Courts. It will thus, be its first and foremost duty to intervene in the matter and to set aside the orders passed by the Courts below, in case it comes to the conclusion that there is an abuse of the process of the Court and the lower Court has passed an order which is unwarranted, unjustified, illegal and invalid in the given circumstances of a case. In fact, I am of the view that this Court would be failing in its duty in case it does not intervene in a case such as the present one. To the same effect are the observations of Hon’ble the Supreme Court as reported in Air 1991 Supreme Court 1494 Mani Nariman Daruala and Bharucha (Deceased) through LRs. and others v. Phiroz N.Bhatena and others. “………INthe exercise of this jurisdiction the High Court can set aside or ignore the findings of fact of an inferior Court or tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Court or tribunal who has come or in other words it is a finding which was perverse in law…….”
(8) The impugned order dated May 29, 1997 with regard to the maintenance of status quo was passed as alluded to above on the basis of a suit which was filed before the learned Additional District Judge. The respondent herein claimed an ex parte interim injunction order on the ground that the sites mentioned in Annexure P-1 had been allotted to them for display of their hoardings by the Public Works Department (Public Witness D) through a letter issued to them on February 7, 1997 (vide Annexure P3).
(9) Now the question which is precariously perched on the tip of the tongue is as to whether the said letter authorises the respondent to display the said hoardings on the sites mentioned therein? A close scrutiny of the said letter reveals that the said letter was written by one Dhan Singh, Dy.Director (Horticulture) with regard to the greening of Pwd Roads on MoU basis. There is a further mention therein that the authorities have allowed them to have their hoardings displayed on the roads adverted to therein w.e.f. February 15, 1997. The said letter, I am afraid, does not lead us anywhere. There is no mention in the said letter as to what type of hoardings are to be displayed; what is to be the size of the said hoardings; what is the period for the display of the said hoardings and what is the consideration which is to be paid by the respondent for the display of the said hoardings? Thus on a closer scrutiny of the said letter we find that it is absolutely of no avail to the respondent and it does not confer any right on them. In fact, learned counsel for the respondent Mr. Sharma during the course of arguments conceded with commendable fairness on his part that the impugned letter which is the basis of the grant of the order in question is ambiguous, vague and does not throw any light on the rights of the respondent with regard to the said hoardings. According to the learned counsel for the respondent a subsequent contract on the basis of the said letter was to be entered into with regard to the display of the hoardings.
(10) Learned counsel for the appellant has led me through the relevant provision of the Delhi Municipal Corporation Act, 1957 (for short `the Act’) which deals with the advertisement hoardings to be displayed by a party. We cannot resist the temptation to cite a few relevant sections in connection therewith. Section 143 provides ” (1) No advertisement shall be erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall be displayed in any manner whatsoever in any place within Delhi without the written permission of the Commissioner granted in accordance with bye-laws made under this Act.
(11) SUB-SECTION (2) of Section 143 contains a prohibition even for the Commissioner who would not grant such permission if:
(A)the advertisement contravenes any bye-law made under this Act; or
(B)the tax, if any, due in respect of the advertisement has not been paid.
(12) It is amply clear from above that no advertisement hoarding can be exhibited or erected without the prior permission of the Commissioner. The Commissioner is further prohibited from granting any such permission if the advertisement contravenes any bye-laws made under this Act or the tax, if any, due in respect of such advertisement has not been paid. Section 146 furthermore, empowers the Commissioner to remove a hoarding or advertisement if the same is being exhibited and erected in contravention of Section 143.
(13) Learned counsel has then led me through the bye laws framed by the Corporation. According to bye-law 6(xvii) there is a prohibition from exhibiting, erecting or displaying of the hoardings on all roundabouts islands in the middle of the road junctions. Then as per bye-law 6(xx) there cannot be any exhibition, erection or display of a hoarding on all Pwd roads. Bye-law 15(1) envisages that no person would be permitted to erect, display any advertisement or hoarding unless and until he has a licence or a registered advertiser.
(14) Admittedly the respondent have not placed even a tiny piece of paper in order to prima facie show and prove that they are registered advertisers. There is no prima facie proof that they have sought the permission of the Commissioner as per the provisions of Section 143 of the Act.
(15) Learned counsel for the respondent Mr.Sharma has contended that the sites as per Annexure P-1 where proposed hoardings are to be displayed are Pwd roads. Thus what possible objection appellants can have there to. They are not M.C.D. roads.
(16) In view of the above it is beyond their competence and forte to object to the same. The contention of the learned counsel is devoid of any force inasmuch as there is absolutely nothing on record even to prima facie suggest that the proposed sites fall within the jurisdiction of PWD.
(17) Moreover as per bye law 6(xx) alluded to above there is a complete bar for putting up hoarding on Public Witness roads. Learned counsel for the appellant has further contended that the alleged letter dated February 7, 1997 addressed to the respondent is a forged and fictitious document. No such letter was ever addressed by the Pwd to the respondent as per the enquiries made by the appellant. The learned lower Court in view of the above would make necessary enquiry with regard to the issue of the said letter and in case the same is found to be forged and fictitious then suitable action would be taken by the learned lower Court against the respondent.
(18) In the circumstances stated above the appellants are entitled to succeed. The impugned orders dated May 29, 1997 and the order dated June 6, 1997 insofar as it clarified the order of status quo are set aside. Consequently, the application of the respondent for grant of injunction is dismissed with costs.