Calcutta High Court (Appellete Side)
Dependra Nath Basu vs Eastern Railways & Ors on 27 July, 2011
Author: Harish Tandon
Bench: Harish Tandon
1
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
C.O. No. 325 of 2007.
With
CAN 10373 of 2009
Dependra Nath Basu
-vs-
Eastern Railways & Ors.
For the petitioner : Mr. Bidyut Kumar Banerjee
Mr. Jiban Ratan chatterjee
Mr. Animesh Das
Mr. S.K. Sinha
Mr. K.K. santra
For the Opposite Parties : Mr. Swapan Kumar Banerjee
Mr. A.K. Gayen
Judgment on : 27.7.2011
HARISH TANDON, J.:
This revisional application is directed against an order no. 2 dated 3.1.2007 passed by the learned District Judge Howrah in Misc. Appeal No. 2 320 of 2006 by which an application under section 151 of the Code of Civil Procedure challenging the maintainability of a single appeal is rejected.
Before adverting to the point taken by the petitioner brief facts are necessary to be spelt out. The petitioner filed Title suit no. 44 of 2006 for declaration that the opposite parties cannot dispossess him in respect of a hoarding, glow sign and kiosks without due process of law and that the agreement between the petitioner and the opposite parties is to be renewed on the prayer of renewal and a decree for permanent injunction restraining the opposite parties from interfering with the right of the petitioner to display the advertisement from the said hoarding, glow sign and kiosks as described in the schedule to the plaint.
An application for injunction is taken out by the petitioner in the said suit for an order restraining the opposite parties from interfering with the rights of the petitioner to display advertisement from the said hoarding, glow sign and kiosks and also from creating any third party interest in respect of the schedule property. An ad interim order of injunction was passed by the trial court.
3
The opposite parties filed an application under Order 39 Rule 4 of the Code of Civil Procedure for setting aside the ad interim order. However, affidavits were exchanged by the parties in both the applications viz. an application for injunction filed under Order 39 Rule 1 and 2 of the Code and an application for vacating an ad interim order filed under Order 39 Rule 4 of the Code.
Both the applications were taken out and were disposed of by the trial court in single order by rejecting an application under Order 39 Rule 4 filed by the opposite parties and allowing an application for injunction filed by the petitioner.
The opposite parties assailed the said order in an appeal filed under Order 43 Rule 1(r) of the Code before the district Judge. The petitioner filed an application under section 151 of the Code challenging the maintainability of a single appeal. The Court of Appeal below dismissed the said application by the impugned order. Hence the present revisional application is filed.
Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the petitioner vehemently argues that two applications namely an 4 application for injunction and an application for vacating an ad interim order of injunction were disposed of, may be by a single order, one appeal against the said order is not competent. According to him when two applications are disposed of there should be two independent appeals which should be filed and a single appeal is not entertainable. He succinctly argues that Order 43 Rule 1 (r) of the Code postulates that an appeal shall lie from an order passed under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39 and thus the legislative intent behind incorporating comma after each sub-rule of Order 39 is that against an order passed under each of such Rule of Order 39, an independent appeal lies. He further argues that while interpreting the provision of the statute the court should not be swayed by the sympathy and relies upon a judgment in case of Omprakash & Ors. Vs. Radhacharan reported in 2009 (3) ICC 48 (SC).
It is further argued that the inherent power should not be used to defeat the statutory provision of law. To substantiate such proposition reliance is placed upon the following judgments :
(i) Debendra Nath Dutt V. Satyabala Dassi, 54 CWN 110
(ii) Mahendra Shivlal Gandhi & Anr. V. State of WB & Ors., 2005 (3) CHN 11
(iii) Damodaran Pillai & Ors. v. South Indian Bank Ltd. 2006 (2) CHN 85 (SC; Supp.).5
Lastly it is argued that when the language of the statute is clear and unambiguous, the court should not resort an external aid of interpretation and reliance is placed upon a judgment of the apex court in case of Phool Patti & Anr. V. Ram Singh (deal) through Lrs. & Anr. reported in 2009 (3) CHN 24 (SC).
Mr. Swapan Kumar Banerjee, learned Advocate appearing for the opposite parties submits that the trial court passed a single order and one appeal is competent under section 104 of the Code of Civil Procedure. He further argues that there is no express provision that the single appeal is not competent in the event more than one application is disposed of by a single order. Thus he submits that the Court of Appeal below has rightly held that one appeal is maintainable.
Having considered the respective submissions made at the bar the point which emerges therefrom is whether single appeal against an order by which two applications namely an application for injunction under Order 39 Rule 1 and 2 of the Code and an application for vacating the ad interim order filed under Order 39 Rule 4 of the Code were disposed of is competent. A short but interesting point is taken by Mr. Banerjee, learned 6 Senior Advocate by interpreting the provisions contained under Order 43 Rule 1 (r) of the Code.
It would be profitable to quote the provision contained under Order 43 Rule 1 (r) of the Code which reads thus :
"R. 1. Appeals from orders. - An appeal shall lie from the following order under the provisions of section 104, namely :-
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper court except where the procedure specified in rule 10A of Order VII has been followed;
* * * * * *
(r) an order under rule 1, rule 2, rule 2A, [AP] rule 4[B] or rule 10 of Order XXXIX;
* * * * * *"
By referring the aforesaid provision it is vehemently contended by Mr. Banerjee that the legislature has used comma which means that the order passed under each of the rules quoted therein of Order 39, an independent appeal lies. According to him, since two independent applications namely an application for injunction and an application for vacating an ad interim order of injunction were disposed of, though by single order, two independent appeals would have to be filed.7
The point taken by Mr. Banerjee at the first blush appears to be of much substance but upon considering the various aspects such point is not sustainable.
Privy Council in case of Maharani of Bardwan Vs. Krishna Kamini Dasi reported in ILR 14 Cal 365 observed that relying upon a punctuation in construing the acts of the legislature is an error. The apex court in case of Aswini Kumar Ghose Vs. Arabindo Bose reported in AIR 1952 SC 369 held :
"Punition is after all a minor element in the construction of a statute, and very little attention is paid to it by English Courts-. It seems however, that in the vellum copies printed since 1850, there are some case of punctuation, and when they occur they can be looked upon as a sort of contemporanea expositio-. When a statue is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given to punctuation-. I need not deny that punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text."
Punctuation is one of the cannon of interpretation of the statutory provisions but reliance only upon the punctuation has an infallible guide to the meaning of the statute which may sometimes result against the legislative intent. The three-judge Bench in case of State of West Bengal Vs. Swapan Kumar Ghua reported in (1982) 1 SCC 561 while considering the usefulness of the comma as an aid of interpretation held: 8
"5. Since the sole question for consideration arising out of the FIR, as laid, is whether the accused are conducting a money circulation scheme, it is necessary to understand what is comprehended within the statutory meaning of that expression. Section 2(c) of the Act provides:
" 2. (c) 'money circulation scheme' means any scheme, by whatever name called, for the making of quick or easy money, or for the receipt of any money or valuable thing as the consideration for a promise to pay money, on any event or contingency relative or applicable to the enrolment of members into the scheme, whether or not such money or thing is derived from the entrance money of the members of such scheme or periodical subscriptions;"
Grammar and punctuation are hapless victims of the pace of life and I prefer in this case not to go merely by the commas used in clause (c) because, though they seem to me to have been placed both as a matter of convenience and of meaningfulness, yet, a more thoughtful use of commas and other gadgets of punctuation would have helped make the meaning of the clause clear beyond controversy. Besides, how far a clause which follows upon a comma governs every clause that precedes the comma is a matter not free from doubt. I therefore consider it more safe and satisfactory to discover the true meaning of clause (c) by having regard to the substance of the matter as it emerges from the object and purpose of the Act, the context in which the expression is used and the consequences necessarily following upon the acceptance of any particular interpretation of the provision, the contravention of which is visited by penal consequences."
In more recent judgment, the apex court in case of Bihar State Electricity Board Vs. Pulak Enterprises & Ors. reported in (2009) 5 SCC 641 held :
"40. Counsel for the writ petitioners referred to the "comma" occurring prior to the words "out of". Though sometimes presence or absence of comma has been taken aid of in interpreting the particular provision, the ordinary rule is that punctuation mark is a minor element in the interpretation of statute (see Aswini Kumar Ghose v. Arabinda Bose). More so, in the case of subordinate legislation."9
It would be useful to consider the provision contained under section 104 of the Code which contemplates that an appeal shall lie from the following orders which includes an order made under the rules from which an appeal is expressly allowed by the rules.
On a conjoint reading of Order 39 Rule 1, 2 and 4 of the Code it emerges that the power is conferred upon the court to grant a temporary injunction. The court can also pass an ex parte ad interim order subject, of course, upon recording the reasons for the same. A party who has suffered an ex parte ad interim order of injunction has mainly three-folds remedies namely (i) contesting the injunction application by filing objections (ii) by filing an application under Order 39 Rule 4 of the Code and (iii) by filing an appeal before the appellate court under the provision of Order 43 Rule 1(r) fo the Code. The scope of Order 39 Rule 4 has a restricted applicability. First proviso to Order 39 Rule 4 of the Code applies where the variation and/or setting aside and/or discharge of an order of injunction passed ex parte is prayed on an account that the party has knowingly made a false or misreading statement in relation to a material part.
Second proviso is applicable where an injunction order was passed upon giving an opportunity of hearing to the parties but should be 10 discharged varied and set aside on the changed circumstances or upon the satisfaction of the court that the order of injunction would cause undue hardship to the party.
Legislature has kept Order 39 Rule 1, 2, 2A, 4 and 6 of Order 39 within one sub-rule. There is no express provision in the Code which provides an independent appeal against each of the consideration under sub-rule (r) of Rule 1 of Order 43 of the Code.
If the legislature intended by using comma in sub-rule (r) after each rule of Order 39 to mean that an independent appeal would lie then sub- rule (t) and (u) would not have been incorporated indifferently. Even Order 9 Rule 9 and Order 9 Rule 13 should not have been placed in different rules so in case of Order 21 Rule 34 and 72 or 92 of Order 21 under different sub-rules.
If the contention of Mr. Banerjee, learned Senior Advocate is accepted then there is a comma put in between Rule 1 and Rule 2 of Order 39 would mean that in case of an order passed under Order 39 Rule 1 and 2 of the Code two independent appeals should have been filed. Such cannot be a legislative intent.
11
Procedure is a handmade to administration of justice. The point taken by Mr. Banerjee has no substance and thus fails. It is no doubt true that the inherent power should not be exercised by the court to defeat the substantive provision of law nor the court should pass an order on sympathetic consideration which otherwise is not permissible under the law. The above contention has no relevancy so far as the present revisional application is concerned as neither the court below has passed an order upon invocation of inherent powers to defeat the substantive provision of law nor the order impugned is passed on sympathetic consideration.
On the basis of the reasons indicated above, there is no merit in the instant revisional application.
The same is, therefore, dismissed.
12In view of the dismissal of the revisional application itself the connected application being CAN No. 10373 of 2009 has become infractuous.
However, in the peculiar facts and circumstances there shall be no order as to costs.
The Court of Appeal below is requested to dispose of the appeal as expeditiously as possible without granting unnecessary adjournment to either parties.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)