Madhya Pradesh High Court
Vasant Diwakar Patrikar And Ors. vs Union Of India (Uoi) And Ors. on 7 September, 1982
Equivalent citations: AIR 1983 MADHYA PRADESH 129, (1983) 2 CIVLJ 238, (1983) JAB LJ 489, (1983) MPLJ 513
Author: G.L. Oza
Bench: G.L. Oza
ORDER G.L. Oza, J.
1. This revision petition has been filed by the petitioners against an order passed by the First Additional Judge to the Court of District Judge Bilaspur, in M. C. A. No. 9/82, dt 29-4-1982 wherein the learned Judge stayed the operation of the order passed by the trial Court on 20-4-1982 in C. S. No. 13-A/82 and issued notice to the present petitioners as to why this order should not be confirmed. This impugned order of stay passed by the learned A. D. J. was stay of an injunction order which virtually amounted to vacating the injunction order granted by the trial Court in favour of the non-petitioners.
2. Facts necessary for the disposal of this revision petition are that these petitioners tiled a suit in the trial Court for declaration and injunction and submitted an application for grant of temporary injunction. In the application for temporary injunction, it was alleged that the petitioners who are taking interest in the trade union activities, are being victimised and with that mala fide intention, transfer orders are expected to be issued to them. It was also alleged in this application that these orders of transfer could not be issued in the circumstances of the case. The learned trial Court granted an ex parte temporary injunction restraining the N. As. from passing the transfer orders and the case was fixed for 5-5-1982 for hearing both the parties. It is strange that the N. As., instead of appearing before the trial Court on 5-5-1982 and opposing the confirmation of the stay order, preferred an appeal against the ex parte orders granted by the trial Court and obtained an ex parte order vacating the order granted by the trial Court by the impugned order. It is against this that the present revision petition has been filed by the petitioners.
3. It was contended by the learned counsel for the petitioners that an ex parte interim injunction was granted by the trial Court and against that, an appeal was preferred by the N. As. before the teamed lower appellate Court, but the learned lower appellate Court, in exercise of its jurisdiction under Order 41, Rule 5 of the C. P. Code, could not pass a stay order as has been done in the present case which virtually set aside the order passed by the trial Court. It was contended that in fact the stay order which has been passed, only amounts to vacating the order of temporary injunction granted by the trial Court in favour of the petitioners.
4. It was also contended on merits by the learned counsel for the petitioners that although an order of transfer ordinarily could not be stayed by grant of temporary injunction, but it was contended that on the facts of the present case, as the trial Court was satisfied about the mala fide intention of the N. As., an interim injunction was granted. It was contended that if the N. As. felt that they could satisfy the Court about the non-existence of such facts which may not justify grant of temporary injunction, it was open to them to appear in the trial Court and show cause so that the order of injunction could not be confirmed, but they approached the lower appellate Court with an appeal and the learned lower appellate Court passed the impugned order without any jurisdiction. It was, therefore, contended that this order could not be maintained.
5. Learned counsel for the N. As., on the other hand, contended that against an ex parte interim injunction, an appeal will be competent and it could not be contended that an appeal could not be preferred before the learned lower appellate Court. As regards grant of stay, it was contended by the learned counsel for the Union of India that an order of stay could be granted under Order 41, Rule 5 of the C. P. C. and in support of his contention, he placed reliance on the following cases :
(i) Syed Ahmad v. H. E. Barlow. AIR 1932 All 223; (ii) Ramnarain Garg v. Improvement Trust Cawnpore, AIR 1937 All 528; (iii) The Ongole Town Welfare and Ratepayers Association. Ongole v. Ongolg Municipal Council. 1959 Andh LT 260; (iv) Kamla Devi v. Takhatmal, AIR 1964 SC 859.
6. The question as to whether an appellate Court, in exercise of jurisdiction under Order 41, Rule 5 of the C. P. C, could grant a stay of an order of temporary injunction granted by the trial Court, being a question of common occurrence, learned member of the Bar whosoever was interested, was also permitted to make his submissions and learned counsel Shri A. R. Choubey placed for consideration the following cases :
(i) Rani Shankeramma v. Ramchandra Reddy, AIR 1953 Hyd 73; (ii) State of U. P. v. Mukhtarsingh, AIR 1957 All 505; (iii) M. Ramchandra Rao v. M. S. Kowsalva AIR 1969 Mys 76; (iv) Sajjansingh v. State of Rajasthan, AIR 1954 Raj 301; (v) Jitendra Narayan Deb v. State of Assam, AIR 1953 Assam 159.
7. The order passed by the trial Court is under Order 39. Rules 1 and 2 of the C. P. Code and. therefore, it could not be disputed that even against an ex parte interim injunction order granted by the trial Court, an appeal will lie to the lower appellate Court. The question that arises for consideration in this revision petition is as to whether exercising appellate jurisdiction, the learned lower appellate Court, under Order 41, Rule 5 of the C. P. Code, could pass an order staying the operation of temporary injunction which in substance means vacating the order of temporary injunction granted by the trial Court. Learned counsel appearing for the petitioners contended that Order 41, Rule 5 (1) of the C. P. Code is only attracted when there is a decree to be executed, as this provision provides for an order staying the execution of a decree, whereas learned counsel appearing for the N. As. contended that the first part of Order 41, Rule 5 (1) provides for an order of the Court staying the proceedings under a decree or an order appealed from and, therefore, stay of proceedings of an order appealed from will cover even a case of stay of an injunction order. Order 41, Rule 5 (1) provides as under:
"Stay of proceedings and of execution Stay by Appellate Court.
5. (1). An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate Court may for sufficient cause order stay of execution of such decree.
(Explanation : An order, by the appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the appellate Court shall, pending the receipt from the appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.)"
8. Learned counsel for the non-applicants laid much emphasis on the words "stay of proceedings under a decree or an order appealed from except so far as the appellate Court may order." It was contended that this part of the sub-rule confers jurisdiction on the appellate Court to pass an order staying the proceedings under a decree or an order and as granting of temporary injunction is an order, the proceedings under this Order could be stayed, although learned counsel could not contend that as soon as an injunction is ordered, no further proceedings remain which can be stayed even if the appellate Court is exercising powers Under this rule.
9. The decision reported in Ramnarain Garg v. Improvement Trust, Cawnpore. (AIR 1937 All 528) (supra) no doubt is a decision which fully supports the arguments advanced by the learned counsel for the Union of India, as in this case their Lordships were considering the case of ad interim injunction granted by the trial Court and were examining as to whether under Order 41, Rule 5. the appellate Court could stay the operation of this injunction order. It was observed in this decision as under:
"This gives an appellate Court the power to order stay of proceedings under any decree or order from which an appeal has been filed. In the present case, there was an appeal filed from the interim injunction, and therefore the appellate Court had power to order the stay of proceedings. Learned counsel argues that the expression 'stay of proceedings' meant 'stay of proceedings in the Court itself and did not entitle the appellate Court to interfere with the operation of the injunction which had been already issued. We do not consider that to be the interpretation of Order 41, Rule 5, and we think that what the learned District Judge intended to direct was a stay of the operation of the interim injunction. The actual words which he used were perhaps not quite in accordance with the language of the rule, but the expression 'is temporarily set aside' undoubtedly meant that there should be a stay of proceedings under that interim injunction."
It appears their Lordships felt that the proceedings did not mean proceedings in the Court only, but it is not clear what proceedings could be stayed when a temporary injunction is granted, although the observations narrated above indicate that in the view of their Lordships, under Order 41, Rule 5, C. P. Code, stay of proceedings can cover a case of stay of a temporary injunction also
10. In the decision reported in Syed Ahmad v. H. E. Barlow (AIR 1932 All 223) (supra) the observations also indicate that such a stay could be granted as it was observed as under :
"As far as this particular relief was concerned the interim order under the circumstances of the case, really decided the action. We think that the learned Judge was justified in ordering a stay so that as far as that issue was concerned, it might remain open until he himself bad heard the appeal. But even assuming that there was irregularity in the making of that order, it is clear that an interlocutory order cannot be revised."
11. Learned counsel for the Union of India also placed reliance on the decision reported in 1959 Andh LT 260 in which the scope of the power under Order 41, Rule 5, Civil P. C. was being considered with regard to a decree for declaration and it was alleged that no stay under Order 41, Rule 5, C. P. C. could be ordered as there is nothing to be executed and it was observed as under :
"It would appear from this that the Code has provided some mode for the enforcement of the decrees of the nature in question. It may be that there are decrees of various descriptions which cannot be executed exactly in the manner in which they are granted. But the Code has prescribed some mode or other for its execution or enforcement; and while having recourse to sisch a mode prescribed, it cannot be said that the decree is not being executed or enforced, in the execution of a money decree, the judgment-debtor may be arrested and put info civil prison or his property moveable or immovable may be attached and put to sale. In either case, it is a mere step in aid of execution as neither by act of mere attachment of property nor by putting the judgment-debtor in civil prison the money is readily realised. The latter is as much a coercive measure in the execution of a money decree as it is in enforcing obedience to the injunction decree. It is nevertheless a mode of execution or enforcement of the decree and Order 41, Rule 5, C. P. C. can be invoked against such form of enforcement pending appeal."
12. It is apparent that in case of an interlocutory injunction, no further steps for execution of the order are contemplated and learned counsel for the N. As. also was not in a position to state as a what remains to be done when an order of injunction is issued. It is no doubt true that the first part of Sub-rule (I) of Rule 5 of Order 41 on which reliance is placed by the learned counsel for the N. As., refers to stay of proceedings under a decree or an order and, therefore, if any proceedings are contemplated under an order passed by the trial Court, an appellate Court no doubt can stay the proceedings which are contemplated under the older or decree.
13. The Allahabad decision referred to above no doubt goes to the extent of suggesting that the proceedings need not be in the Court, although it is not clearly stated what could be the proceedings outside the Court. But it is apparent that in a case where an order of temporary injunction restraining the N. As. to pass orders of transfer of the petitioners is passed, no further proceedings as a consequence of this order are contemplated either in the Court or anywhere else. But what was contended by the learned counsel for the N. As. was that as this rule permits an order by appellate Court staying the proceedings under a decree or an order, a stay could be granted when an order of temporary injunction is granted. It is no doubt true that in some cases occasion may arise where under the order of temporary injunction, further proceedings may start for breach or disobedience and at that stage, it could be contended that these proceedings could be stayed by the appellate Court in exercise of jurisdiction under Order 41, Rule 5(1), first part, as quoted above. But so far as the case in hand is concerned, there is nothing on the basis of which it could be contended that there were any proceedings contemplated. In substance, the stay order passed by the learned lower appellate Court only amounts to the vacation of the order of temporary injunction. It could not be doubted that in appropriate cases, ex parte order could be passed under Rule 3 of Order 39, C P. C., but the question raised in this revision petition is about the jurisdiction of the appellate Court under Order 41, Rule 5 (1), C. P. Code.
14. Learned counsel for the N. As. also referred to certain observations made in the decision reported in Kamla Devi v. Takhat mal. (AIR 1964 SC 859 at p. 862) (supra) which are as under :
"Learned counsel for the appellant contended that he had no instructions that the appeal tiled in the Allahabad High Court was dismissed. Assuming that the appeal is still pending against the order made by the Tribunal, Dehra Dun returning the petition filed by the second respondent under Section 5 of the Ad, the appellant would not be in a better position. It is not stated that after filing an appeal, bis client had obtained any interim suspension of the order of the Tribunal, indeed it is not disputed that there was no such order. If so, the legal position would be that the order of the Tribunal would be in force till it was modified or set aside by the appellate Court. The filing of an appeal docs not automatically suspend the operation of an order appealed from unless the appellate Court stays it or a statute conferring right of appeal provides for such a stay. Section 40 of the Act confers a right of appeal on an aggrieved party against the final order of a Tribunal to the High Court. The section conferring the said power does not provide for a statutory stay of the order of the Tribunal till the disposal of the appeal. Indeed, Order XLI, Rule 5 of the Civil P. C., which embodies the general principle cf law. says that an appeal shall not operate us a stay of proceedings under a decree or order appealed from except so far (as) the appellate Court may order. This principle which applies to stay of proceedings under an order will apply with greater force to a suspension of an order. The Judicial Committee in Juseurn Boid v. Pirthi Chand Lal, 0918) 46 Ind App 56 : (AIR 1918 PC 151 at p. 153) summarised the Indian law of procedure thus: "..... under the Indian law and procedure, an original decree is not suspended by presentation of an appeal, nor is its operation interrupted where the decree on appeal is one of dismissal."
The only relevant observations are that the principle which applies to stay of proceedings under an Order, will apply with greater force to a suspension of an order. In fact in this decision, the scope of Order 41, Rule 5 was not being examined. What these observations indicate is that when the appellate Court had jurisdiction to stay proceedings in consequence of the order, it could also suspend the order, but the order contemplated in this decision is not an order of temporary injunction as in the present case.
15. The decision reported in State of U. P. v. Mukhtarsingh, (AIR 1957 All 505) (supra); Sajjansingh v. State of Rajasthan, (AIR 1954 Raj 301) (supra) and Jitendra Narayan Deb v. State of Assam. (AIR 1953 Assam 159) (supra), pertain to cases under Order 41, Rule 13, C P. C. when special leave petition is filed for leave to appeal to Hon. the Supreme Court and will not be of any assistance so far as the present case is concerned.
16. It is, therefore, clear that except the Allahabad decisions, there are no decisions where this question has been specifically examined and examination of the language used in Sub-clause (1) of Rule 5 clearly provides for stay of proceedings, under a decree or an order, or the stay of execution of a decree. It is, therefore, clear that so far as an order of temporary injunction, as was granted in this case is concerned, there are no proceedings under the order which could be stayed, nor is there any question of execution which could be stayed. In my opinion, therefore, no order could be passed by the learned appellate Court in exercise of jurisdiction under Sub-rule (1) of Rule 5 of Order 41, C. P. Code.
17. It is no doubt true that in a matter which is not specifically covered under Rule 5 of Order 41, in appropriate cases, the Court below could exercise jurisdiction under inherent powers, but for exercise of jurisdiction under inherent powers, the order must indicate the reasons which weighed with the learned Court below to exercise those powers. Apparently the impugned order does not indicate that the Court below was exercising powers under Section 151 of the C. P. Code. In fact the order clearly indicates that the learned Judge was exercising powers under Order 41, Rule 5 of the C. P. Code.
18. Learned counsel for the parties also made submissions about the merits of the matter, as it was contended by the learned counsel for the N. As. that even on merits. the order passed by fee trial Court could not be justified and, therefore, this revision should not be entertained. Unfortunately, the order passed by the trial Court was also an interim order and the matter was yet to be examined before the trial Court as to whether it was a fit case where the Court below could have exercised jurisdiction under Order 39. C. P. C. and granted a temporary injunction, but before the trial Court, after hearing both the parties, could consider the matter, the matter was taken up in appeal and the learned lower appellate Court also, by an interlocutory order, virtually vacated the order passed by the trial Court. Both the orders admittedly are ex parte orders and in such a situation, in my opinion, it will not be worthwhile for this Court to go into the merits of the matter.
19. As is clear from the language of Order 41, Rule 5 of the C. P. C., this order could not be passed. The order passed by the learned lower appellate Court is, therefore, set aside, but it is directed that the learned trial Court will consider the matter after hearing both the parties expeditiously and dispose of this application for grant of temporary injunction. In the circumstances of the case, parties are directed to bear their own costs.