JUDGMENT
H.L. Anand, J.
(1) By this petition under Article 227 of the Constitution of India, the petitioner, an appellant in the appeal out of which it has arisen, challenges an order of the appellate court declining to grant ex-parte injunction to the appellant even while admitting to hearing the appeal of the appellant against the order of trial court, dismissing an application of petitioner for an injunction to restrain the Corporation from demolishing the premises in dispute during the pendency of this suit for a permanent injunction.
(2) According to the petitioner, the petitioner obtained on lease a piece of land on Deshbandhu Gupta Road, Paharganj, on which a structure was raised, which was destroyed in March 1972 in a fire which devastated a large number of other structures in the vicinity. According to the petitioner, the super-structure was repaired by the petitioner and a large number of other stall holders, who were members of the stall holders Association, on the assurance of the authorities, and when the super-structure was sought to be demolished, the petitioner challenged the notice of demolition before the Additional District Judge in appeal which was eventually accepted and the matter was remanded to the Corporation for decision according t
(3) Learned counsel for the petitioner assails the order of the first appellate court on the ground that it is not a speaking order and does not give any reasons as to why there was no ground for the grant of an injunction. He has also assailed the order of the trial court on the ground that while determining the question if the petitioner had a prima facie case it has transgressed the limit of its function in deciding the question raised by the petitioner in the suit rather than determine if the petitioner raised a question that required consideration at the trial. The conclusion of the trial court that the petitioner had failed to establish a prima facie case by any document on record was assailed on the ground that the petitioner could not have given evidence at the preliminary stage of the proceedings and such evidence could have been given only at the trial of the suit. The further conclusion of the trial court that the demolition notice had admittedly been served on the petitioner and he had replied to it was also assailed on the ground that this was because of a confusion in the mind of the trial court because it was not even the case of the Corporation that notice had been served on the petitioner personally because, according to the Corporation, a demolition order had been pasted outside the shop and it was nobody’s case that a reply to it had been sent.
(4) Learned counsel for the Corporation sought to justify both the orders on the ground on which the order of the trial court purports to be based and urged that since the trial court has returned a definite finding the requirements of Section 343(1) of the Act had been fully satisfied, the suit itself was not maintainable and that this court should not therefore, interfere in exercise of its power of superintendence.
(5) After hearing learned counsel for the parties, it appears to me that the petitioner must succeed. In case of Gopal Krishan Kapoor v. Ramesh Chancier Nijhawan and others, I had occassion to consider the meaning of the expression “prima facie case” and the precise function of the court when called upon to consider if a plaintiff had a prima facie case for the grant of an interim protection. This is how I looked at the question: “The function of the Court when called upon to consider if the plaintiff has a prima facie case for the grant of an interim protection or not is to determine the limited question if the material placed before the court would require investigation but it is not open to the Court to either subject the material to closer judicial scrutiny for the purpose of deciding if on account of any inherent characteristics of the situation or the probabilities, the plaintiff may not succeed in this contention. Such an investigation would be clearly a transgression of the limits of the functions of the Court and would be both unreasonable and unfair because the suit being at a preliminary stage, the plaintiff has had no opportunity to support his contention by evidence and re-enforce the material brought by the plaintiff to the Court by additional evidence and to do that would amount to pre-judging the case of the plaintiff.”
(6) In the present case, the petitioner went to the court on the allegation that although he went to the office of the Corporation along with the documentary evidence in support of his claim, the Zonal Engineer was not available and that the demolition order was, therefore, made without affording any opportunity to the petitioner of being heard. The petitioner made the further allegation that the demolition order was never served on the petitioner and that the demolition order having been made in disregard of the provisions of Section 343(1) of the Act. the petitioner was entitled to a permanent injunction to restrain the Corporation from carrying out the same. At the hearing of the application for injunction in the suit a copy of the representation of the Stall Holders Association dated March 28, 1974, was produced, in the course of which the Association had protested to the Corporation that the petitioner along with various other stall holders had gone to the aforesaid office on the aforesaid date, but the Zonal Engineer was not available and the Association had heard that adverse orders had been made for the demolition of the structures. The allegations of the petitioner were denied by the Corporation and it was contended that the petitioner never attended the office of the Corporation on the aforesaid date and the matter was, therefore, decided on the material available in the absence of the petitioner. While considering the question if the petitioner had a prima facie case for interim protection the trial court had to look at the allegations in the plaint the material on the record in support of the allegations, and to find if the allegations and whatever material may be available, disclosed a case, which required investigation. It was not the function of the trial court at the preliminary stage to proceed to decide the question or to expect the petitioner to prove the allegations by documentary or other evidence. By proceeding to decide the two questions the trial court clearly transgressed the limits of its functions and the infirmity in the order is not saved merely because it hastened to add that the conclusions arrived at by it would not prejudice the trial of the suit. Whether or not the pettioner went with the necessary material to the office of the Zonal Engineer as alleged raises a question of fact which will have to be established by proper evidence at the trial of the suit. At the preliminary stage at which the order was sought the petitioner could not have given any other material to the court apart from his allegations and the affidavit in support of it as indeed the representation of the Association, where these allegations had in terms been made. It would be unfair to expect the petitioner at that preliminary stage to produce any further material. The question whether the suit was maintainable or not by virtue of the bar incorporated in Section 343 (4) of the Act would depend on the decision of the question if the demolition order had been made in accordance with the provisions of that section, and no question as to the maintainability of the suit could be decided until that question of fact had been gone into. Such a question cannot obviously be gone into unless the parties have had an opportunity to produce their respective evidence. The order of the appellate court suffers from the further infirmity that it discloses no reasons at all. It is difficult to understand how an injunction could be refused even while the appeal against the interlocutory order refusing injunction has been admitted to a regular hearing. If in such a case the injunction is refused and the demolition is carried out what happens where the appeal ultimately succeeds. Where the appeal has, therefore, been admitted to a hearing, the proper course for the appellate court would be to give the necessary interim protection, and if, according to the appellate court, the petitioner had no prima facie case for an injunction because the finding of the trial court were justified, where was the question of admitting the appeal to a regular hearing.
(7) The contention that this court would not interfere in exercise of its power of superitendence because the trial court has returned a finding of fact on the two questions raised by the petitioner is devoid of force. The trial court was not required to return any finding of fact at the preliminary stage of the proceedings where the limited scope of its function was to find if the petitioner raised a case in the plaint which required consideration and which was not bound to fail on account of any technical error or otherwise. It was not open to the trial court to go into the questions raised at the preliminary stage of the proceedings. Where the trial court transgresses the limits of its functions at the preliminary stage of the proceedings when called upon to consider the question if the plaintiff had a prima fade case, it does not raise a mere question of correctness of the decision or its proprietary, but one of jurisdiction, and in such a situation this court is fully empowered, as indeed duty bound, to interfere and give the necessary protection to the petitioner until the question has been gone into at the trial. To hold to the contrary would be to permit the courts below to pre-judge the entire suit, even while the petitioner had no opportunity of producing any evidence.
(8) Ordinarily I would have modified the order of the appellate court so as to give the interim injunction to the petitioner which may injure during the pendency of the appeal leaving the appellate court still free to decide the question as to the petitioner’s entitlement to interim protection during the pendency of the suit. On the conclusion of the appeal learned counsel for the parties, however, desired that such a course would be unnecessary, and that if I was granting the injunction on the ground that the petitioner had a prima facie case, it need not be confined to the period until the decision of the appeal but may inure till the decision of the suit. Learned counsel for the Corporation further sought that in that event it would be reasonable and proper that a time-bound schedule is fixed for the disposal of the suit so that the petitioner is not able to take undue advantage of the interim protection being given to him.
(9) In the result, the petition succeeds. The impugned orders of the trial court and of the first appellate court are set aside. The petitioner would have the injunction as prayed till the decision of the suit. The appeal of the petitioner would be rendered infructuous and be consigned to the records. It is, however, reasonable and proper that the suit is heard and disposed of at an early date. The trial court would hear and decide the suit within 4 months. The petitioner has agreed to produce his entire evidence on any date that may be fixed for the purpose. No adjournment would be granted to the petitioner for the purpose. The petitioner would, however, be entitled to seek the aid of the process of the court to produce his evidence.
(10) In the peculiar circumstances of the case there would be no costs.
