Karnataka High Court
Vokkaligara Sangha vs Pradeep on 3 March, 1994
Equivalent citations: ILR1994KAR1653, 1994(2)KARLJ688, 1996 A I H C 1170, (1994) 2 KANT LJ 688
JUDGMENT R. Ramakrishna, J.
1. The appellants are the defendants in O.S.No. 10169/94 on the file of the VIIth Additional City Civil Judge, Bangalore. They are questioning the grant of/ad interim order of mandatory injunction granted against them to conduct the election in accordance with Annexure 'D'.
2. When this Appeal came up for admission, Sri S. Shekhara Shetty, learned Advocate who represented the respondent before the trial Court made his appearance. At the initial stage, the maintainability of the Appeal is questioned by the respondent and therefore the learned Advocates are permitted to make their representation only with regard to maintainability of Appeal before considering the case for admission.
3. Few facts are necessary and they are as follows :
The respondent filed a suit for judgment and decree against the appellants for a declaration that Annexures B and F are null and void and issued without any jurisdiction and for a permanent injunction restraining the appellants from postponing the election for the Central Executive Committee from 27.3.94 to any other date. I.A.I, under Order 39 Rules 1 and 2 read with Section 151 C.P.C. was filed for an order of temporary injunction restraining the appellants from postponing the election and I.A.2 on the similar provision of law filed for an ad interim order of mandatory injunction to conduct the election on 27.3.94.
4. The learned trial Court on the basis of the materials placed before it considered that a notice under Order 39 Rule 1 or 2 is not necessary and therefore it passed the impugned order on I.A.2 and also another order as prayed under I.A.I. The appellants have filed this Appeal confining themselves to the order passed on I.A.2.
5. With regard to maintainability of the Appeal under Order 43 Rule 1(r) of CPC, the law is well settled in PARIJATHA AND ANR. v. KAMALAKSHA NAYAK AND ORS 1981 (2) KLJ 570. rendered by Division Bench of this Court. The law thus enunciated is still holds the field. The conclusion is to be found at para 15 of the Judgment:
"For the foregoing reasons, we hold that Order 43 Rule 1 (r) of the Code does not allow the filing of the appeal from an exparte interim order of temporary injunction granted under Rule 1 or 2 of Order 39, but the remedy of the aggrieved person is to move the trial Court under Rule 4 of Order 39 of the Code in the first instance. We further hold that even a stranger to the suit or proceeding can maintain such an application. We hereby over rule the decisions of single Judge, taking a view in favour of the permissibility of an appeal against an interim exparte order of temporary injunction."
6. Sri C.B. Srinivasan, the learned Advocate for the appellants has absolutely no quarrel with the law being laid down on this point, but the contention appears to be that since the order of the trial Court is in the nature of ad interim mandatory injunction, the law laid down in Parijatha's case is distinguishable. The learned Counsel has mainly relied on Chapter 8 of the Specific Relief Act, which deals with perpetual injunctions and mandatory injunctions. According to the learned Advocate, the general nature of injunction having been dealt in Section 36, the nature of the perpetual injunction has been described under Section 37 Sub-clause 2. The issue of ad interim mandatory injunction is to be viewed in a different way and therefore the Appeal is maintainable.
7. In Parijatha's case, the learned Division Bench has dealt with the matter extensively by referring to the Judgments of various High Courts on these points and gave a detailed reason for approaching the Court which passes an ad interim order. It is further stressed that if the said view is not adopted there will not be any consistency. Hence the parties will have to approach the Courts which passed ad interim order whenever ad interim order of temporary injunction is passed. The parties have to approach the trial Court under Order 39 Rule 4 and only after getting the decision under Order 39 Rule 4, the aggrieved party can file an appeal under Order 43 Rule 1 Sub-clause (r).
8. The trial Court has passed order on I.A.2 invoking Order 39 Rules 1 and 2 and therefore it cannot be said that merely it is in the nature of mandatory injunction loses its significance. The Court has issued the said order taking recourse to the Specific Relief Act. Once a Court invokes a particular provision of law and there exists provisions to such orders, the other course is to exhaust the remedy available under the extended provisions of law. One cannot read more that what contained in a particular law to arm himself to invoke some other provision of law. This is precisely the point which was stressed in SUNDARJAS KANYALAL BHATHIJA v. THE COLLECTOR, THANE, MAHARASHTRA AND ORS. . The Supreme Court while considering the precedents and principles, held that the "judges are bound by precedents and procedure - They could use their discretion only when there is no declared principle to be found, no rule and no authority", A detailed discussion is not warranted on the settled law. The law laid down on this point, it is sufficient to know that there is a declared principle to be found and while dealing with such situation, the Judge should follow the said principle. Otherwise it is a subversion of Judicial process if the procedure is not followed.
9. Though Sri C.B. Srinivasan drawing the demarcation line only to the nomenclature that the order is in the nature of the mandatory injunction it will not lose its character that the order is passed by invoking Order 39 Rules 1 and 2 of C.P.C. and therefore, the only remedy to the appellants is to approach the jurisdictional Court and file application for setting aside the said order under Order 39 Rule 4. Without invoking such a procedure if any appeal is filed, it is not maintainable in view of clear law enunciated in Parijatha's case.
10. Next submission made by Sri C.B. Srinivasan is that in the event this, Court comes to the conclusion that the Appeal is not maintainable, the appellants shall be permitted to convert the appeal into Revision. Since, there is a specific provision made under Order 39 Rule 4, the submission of the learned Advocate to convert the Appeal into Civil Revision Petition cannot be accepted at all.
11. In fact this Court in GOPALA AHUJA v. SANMAN DISTRIBUTORS PRIVATE LIMITED rejected such contention in view of specific provision available under Order 39 Rule 4 C.P.C. In this case a Civil Revision Petition was filed in the same set of circumstances, this Court held that even Civil Revision Petition is not maintainable. Sri Srinivasan, learned Advocate has taken through the impugned order made by the trial Court and according to him, the trial Court appears to have used its inherent jurisdiction in passing ad interim order and therefore this fact should be taken into consideration. This submission of the learned Advocate also cannot be taken into consideration as very expression made in the order leads to several conclusions, but ultimate net result of the order is to be appreciated.
12. However, taking into consideration the hardship that will be caused to the appellants, if the order of the trial Court is allowed to continue, with some direction, this Appeal may be disposed of. Having come to such conclusion the following Order is made.
The Appeal is dismissed as not maintainable. This order shall be communicated to the trial Court by starting of the Court tomorrow.
The appellants shall appear before the trial Court and file their application to vacate the ad interim order passed on I.A.II.
The trial Court shall pass a final order on I.A.II within six days from the date of application is filed to vacate the interim order of mandatory injunction.