Ezhuthachan National Academy vs R. Gopinathan Nair on 12 February, 2019

[Cites 25, Cited by 1]

Kerala High Court

Ezhuthachan National Academy vs R. Gopinathan Nair on 12 February, 2019

1.Has the District Court, while exercising jurisdiction under section 25 of the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955 (hereinafter referred to as Act 12 of 1955), the power to grant an interim order of injunction? This is the question that has been referred to this Division Bench by the Reference order.

Prelude

2.The aforesaid question of law has been referred to this Division Bench by the single Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 8 Judge sitting in review of an order passed earlier by a Single Bench of this court, confirming an order of temporary injunction granted by the District Judge, on an application filed under section 25 of Act 12/1955.

3.According to the learned single Judge, the view expressed in Oorazhma Devaswom Board, Vaduthala v. Brahmadhathan Namboodhiri and others [2014 (1) KHC 383] stands in conflict with the earlier decisions of the Supreme Court in Nawab Usma Ali Khan v. Sagarmal (AIR 1965 SC 1798), Thresia v. Xavier (AIR 977 Kerala 118 (FB), Gandhian Institute of Studies, Varanasi v. 4th Additional District Judge, Varanasi and others (2007 AIHC 103) and Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 9 Parayakattu Nalukulangara Devaswom v. Padmanabhan Harshas & others (1983 KLT 803). The views in conflict

4.In Oorshama Devaswom Board's case (supra) the court held thus:

"An application for interim injunction against the opposite party in such proceedings can be entertained, but, only in exceptional cases, taking note that the proceedings are governed by section 141 of the Code of Civil Procedure."

The aforesaid view is in conflict with the decisions referred to below, according to the learned single Judge.

5.In Nawab Usma Ali Khan v. Sagarmal (AIR 1965 SC 1798) the Apex Court held thus:

"Section 141 makes applicable to other proceedings only those provisions of the Code which deal with procedure and not those which deal Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 10 with substantive rights."

6.In Thresia v. Xavier (AIR 977 Kerala 118 (FB) it was held thus:

"Provisions in the Code of Civil Procedure contain both substantive and procedural rights and what is made applicable to proceedings other than suits by section 141 of the CPC is only those provisions which deal with matters of procedure and even in respect of those matters only those which could be made applicable. The Full Bench also noticed that a proceeding under Order 33 is a substantive right."

7. The Allahabad High Court in Gandhian Institute of Studies, Varanasi v. 4th Additional District Judge, Varanasi and others (2007 AIHC 103) enumerated the main procedural provisions in the Code thus:

"Only such Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 11 provisions are applicable which facilitate the court in arriving at rightful conclusions such as filing of written statement; appearance of parties; examination of parties by the court; discovery and inspection; admissions; production of return of documents; settlement of issues and determination of suits on issues of law or on issues agreed upon disposal of proceeding of first hearing;

                       summoning            and         attendance          of
                       witnesses;       adjournments;           hearing     of
                       suit     and    examination         of    witnesses;

commissions; judgment, costs."

8.In Parayakattu Nalukulangara Devaswom v. Padmanabhan Harshas & others (1983 KLT 803) a learned single Judge of this Court held thus:

"This is a provision which enables only certain persons to do certain matters for certain limited purposes. There is nothing in the section which either expressly or impliedly shows or indicates that under this section the Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 12 District Court can interfere with the convening of a general body or conducting of elections or even convening of a Special General Body. There is also nothing in this section which either expressly or impliedly ousts the jurisdiction of a civil court, particularly in matters relating to convening of General Body or conducting of elections. As stated earlier, this section only confines to matters stated therein."

9.In Arjan Singh v. Punit Ahluwalia and others (2008) (8) SCC 348) the Apex Court held as follows:

"To the said effect, the court must make a distinction between an incidental proceeding and a supplemental proceeding. An order of injunction can be passed in terms of the provisions of the supplemental proceedings contained in section 94 of the Code of Civil Procedure. An express order must be passed while giving effect to the supplemental Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 13 proceedings which is additional to the incidental power of the court. The distinction is fine but real."

10.After reading Oorazhma Devaswom's case (supra) in the light of the decisions referred to above, the learned single Judge, who referred the question of law, expressed the view that "grant of injunction being in the nature of a substantive right, whether the District Court in the proceedings under section 25 has the power", needs to be looked into in the above background. This is the background of the reference.

Arugments

11.Heard Sri.George Poonthottam, the learned senior counsel appearing for the review petitioners and Sri.N.Nandakumara Menon, the Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 14 learned senior counsel appearing for the respondents.

12.The learned senior counsel for the reivew petitioners advanced arguments exhaustively and contended that District Court cannot grant temporary order of injunction in an application filed under section 25 of Act 12/1955, when such a relief is not mentioned under section 25 of Act 12/1955 and section 141 of the CPC cannot be invoked for granting temporary injunction, as it is a substantive law. According to the learned senior counsel, the jurisdiction and power of the District Court in an application filed under section 25 of Act 12/1955 are confined to the reliefs specifically enumerated as Clauses (a) to (c) Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 15 of section 25 of the said Act and nothing more than that. Similarly, section 141 makes applicable the procedural part only of the CPC to all proceedings in a court of civil jurisdiction. Since Section 94 read with Order 39 Rule 1 is a substantive law, section 141 cannot be invoked, to grant an order of temporary injunction, while exercising jurisdiction under section 25 of Act 12/1955. In order to fortify the said argument, the learned counsel relied on all the decisions referred to above, except Oorashma Devaswom's Case (supra).

13.Per contra, the learned senior counsel appearing for the respondents contended that though an order of temporary injunction is not Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 16 mentioned under section 25 of Act 12/1955, the District Court, being a court of civil jurisdiction, has the power to grant an order of temporary injunction, invoking section 141 of the CPC. According to the learned counsel, what is prescribed under Section 94 read with Order 39 of CPC is a procedural law only and not a substantive law. So it can be made applicable in all proceedings in any civil court of civil jurisdiction, by invoking section 141 of the CPC. The relief provided under the aforesaid provisions is also a procedural relief only and not a substantial relief. Therefore, the District Court has the power to grant a temporary order of injunction, the learned counsel contended. Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 17 In support of the said argument, the learned counsel cited the decisions in Sudheerkumar v. Praveena 2018 (4) KHC 460(DB), Shri Yogesh Shah and Ors. Petitioners v. Smt.Dharmeswari Devi alias Dharmeswari Devi Respondent AIR 2006 Guw. 87 and Oorazhma Devaswom Board, Vaduthala v. Brahmadathan Namboothiri and Others 2014 (1) KHC 383. Lastly, it is contended that even otherwise, all courts of civil jurisdiction have the power to grant temporary order of injunction, invoking the inherent power, saved under section 151 of the CPC. In order to fortify the said argument, the learned counsel cited Tanusree Basu and Others v. Ishani Prasad Basu and Others 2008 (4) SCC 791.

Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 18

14.In reply, the learned senior counsel appearing for the review petitioners contended that the District Court, while exercising jurisdiction under section 25 of Act 12/1955, will not have the status of a civil court, as contemplated under section 151 of the CPC and the District court will attain the character of a special court constituted and empowered, for exercising the power, as provided under section 25 of Act 12/1955. Therefore, the District Court cannot grant temporary order of injunction, in exercise of the inherent power, saved under section 151 of the CPC. An analysis of Section 25 of Act 12/1955

15.Firstly, let us examine section 25(1) of Act 12/1955 which is extracted below:

Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 19 "25.Application to court for dissolution, framing a scheme, etc.--(1) When an application is made by the State Government or ten per cent of the members on the rolls of a society to the District Court within the jurisdiction of which the society is registered, the court may, after enquiry and on being satisfied that it is just and equitable, pass any of the following orders:

a) removing the existing governing body and appointing a fresh governing body; or

(b) framing a scheme for the better and efficient management of the society; or © dissolving the society.

16.According to the learned single Judge, in Parayakattu Nalukulangara Devaswom's case, the Single Judge of this court held that the District Court, while exercising the jurisdiction and power under section 25 of Act 12/1955, has no jurisdiction or power to grant Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 20 any relief other than the reliefs, which are specifically enumerated as Clauses (a) to (c) to section 25(1) of Act 12/1955. There is no provision in Act 12/1955 which either expressly or impliedly, ousts jurisdiction or power of a civil court, particularly in matters which are not enumerated under section 25(1) of Act 12/1955. To put it differently, the power of the District Court, while exercising jurisdiction and power under section 25 of Act 12/1955, is confined to the reliefs expressly mentioned in section 25(1) only. Thus, the learned Judge relied on the decision of this court in [1983 KLT 803] Parayakattu Nalukulangara Devaswom v. Padmanabhan Harshas and others. Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 21

17.On a quick survey of the various provisions in Act 12/1955, we also find that there is no provision in the said Act, absolutely barring or ousting the jurisdiction of the civil court from adjudicating the disputes and passing orders granting reliefs other than the reliefs specifically enumerated under section 25(1) of Act 12/1955. Thus, the civil court has not lost its jurisdiction or power to sit in judgment on the disputes arose under Act 12/1955 and to pass orders other than the reliefs specifically enumerated under Clauses

(a) to (c) of Act 12/1955. Therefore, parties to the disputes under Act 12/1955 has right to institute original suits in the ordinary civil court having jurisdiction, seeking reliefs Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 22 other than the reliefs specifically enumerated under Section 25(1) of Act 12/1955. This is the provision, which enables the state government or ten percent of the members on the rolls of the society only to seek certain specified relief. So it is correct to say that this is the provision, which enables only certain persons to do certain matters for certain limited purpose. So, we also concur with the decision of this court in Parayakattu Nalukulangara Devaswom's case (supra). The parties may file different suits or application before the ordinary civil court and District Court respectively, seeking different reliefs that arose from different cause of action, at a time, without any Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 23 conflict with section 25(1) of Act 12/1955.

18.But, what would be the remedy, if the specified persons, who filed an application before the District Court under section 25 of Act 12/1955 seeking the reliefs specifically enumerated under section 25 of Act 12 of 1955, want a temporary order of injunction in that application to preserve and protect the subject-matter as such, without any change, till the disposal of the application.

19.The question is, has the District Court jurisdiction and power to grant temporary injunction, until further order or disposal of the application, in the application filed under section 25 of Act 12/1955, seeking reliefs specifically enumerated thereunder. Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 24 Has the District Court any other source of power to grant temporary injunction until further order or disposal of the application? Law of injunctions

20.Since the question of law referred to us centres around the sources of power to grant an order of temporary injunction in a proceedings other than the suit, firstly let us have a look at a glance, on the law of injunction.

21.The power to grant temporary injunction is embodied under Section 94 and Order 39 Rules 1 and 2 of the CPC and the power to grant perpectual injunction is generally embodied in Chapter VIII of the Specific Relief Act., in Sections 36 to 42. According to Section 36 of Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 25 the Specific Relief Act, the injunction, temporary or perpetual, is a preventive relief, which can be granted at the discretion of the Court. Section 37(1) of the said Act prescribes that, temporary injunctions are such as are to continue until specified time or until further order of the court and they may be granted at any stage of the suit and are regulated by the Code of Civil Procedure, 1908. Sub Section 2 of Section 37 further stipulates that a perpetual injunction can only be granted by a decree made at the time of hearing and upon merits of the suit only and defendant is thereby perpetually enjoined from the assertion of a right or from commission of an act which would be contrary Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 26 to the rights of the plaintiff.

22.Thus, we understand that the power to grant temporary injunction emanates from, and is regulated by section 94(c) read with Order 39 Rules 1 and 2 of the Code of Civil Procedure only. Since it is a discretionary one, the plaintiff cannot claim it as of right and it will have effect until further orders or disposal of the case and it will merge in the final judgment. Thus, the question, which has been referred to for determination in this reference, falls under Section 94(c) and Order 39 Rules 1 and 2 of the Code of Civil Procedure only.

23.Let us examine Section 94 and Order 39 Rules 1 and 2 of the Civil Procedure Code, as they Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 27 are the sources from which the the courts derive power to grant temporary injunction. Section 94 reads as follows:

94.Supplemental Proceedings.- in order to prevent the ends of justice from being defeated the Court may; if it is so prescribed.-

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 28 duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be justs and convenient.

Order XXXIX reads thus:

ORDER XXXIX TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS Temporary Injunctions Case in which temporary injunction may be granted.-3[xxxx] Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute ina suit is in danger of being wated, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends to remove or dispose of his property with a view to 4[defrauding] his creditors.

[(c) that the defenant threatens to disposses the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the court may by order grant a temporary injkunction to restrain such act, or make such other order for the purpose of staying Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 29 and preventing the wasting, damaging, aliention, sale, removal or dispostition of the property 2[or disposition of the plaintiff, or otherwsie causing injury to the plaintiff in relating to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

2.Injunction to restrain repetition or continuance of breach.- (1) In any suit for restraing the defendant from committing a breach of contract or other injuury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind and arising out of the same contract or relating to the same property or right.

(2) The Court may by order grant such injunction, on such terms as to the durtion of the injunction, keeping an account, giving security, or otherwise, as Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 30 the Court thinks fit.

24.On a combined reading of Section 94 and Order 39 Rules 1 and 2 in juxtaposition, we find that Section 94 (C) is the principal Section from which the courts derive the power to grant temporary injunction and Order 39 Rules 1 and 2 prescribes the circumstances or the grounds under which the courts can derive power from Section 94. We further noticed that a separate chapter, Chapter VI under the heading "Supplemental Proceedings" is set out in the Civil Procedure Code and Section 94 & 95 alone are the provisions incorporated in the said Chapter and thereby the said chapter stands in a different footing, independent of other provisions in the CPC. More Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 31 importantly, the language is very clear to hold that this is a power granted to all the courts of Civil Jurisdiction, irrespective of the nature of proceedings, whether it is a suit or an application. But, we further notice that Section 94 is not a self working provision and the power to grant temporary injunction cannot be derived from Section 94, unless the Rules so prescribes. The expression 'if it is so prescribed' embodied at the end of the opening sentence is very significant and decisive. What is meant by the expression 'if it is so prescribed'?. According to Section 2(16) of the CPC, prescribed means prescribed by Rules. Therefore, Section 94 must be read thus: "in Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 32 order to prevent the ends of justice from being defeated the court may, if it is so prescribed by Rules, grant temporary injunction". Since the power to grant temporary injunction is given to the court, irrespective of the nature of proceedings before it, whether it is suit or other application, the court can invoke that power, if it is so prescribed by Rules. The conspicuous absence of the expression "suit", unlike as seen in Order 39, is so pertinent as well as significant and it would justify the above view. We are of the opinion that Sections 94 and 95 are seen incorporated separately and power is given to court, for enabling the court of civil jurisdiction, to Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 33 invoke the same in all proceedings; whether it is suit or application. The above view is further supported by the preample of the Civil Procedure Code. It is needless to say, preample is the key to open the mind of the legislature. According to the preample, Civil Procedure Code is an act to consolidate and amend the procedure of the court of civil judicature and the application of the same is not confined to suits only. Thus, the power to grant temporary injunction under Section 94 is given to all courts of civil judicature, if it is so prescribed by Rules, in all proceedings before such courts.

25. We have already found that Order 39 Rules 1 and 2 are the procedural law prescribed for Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 34 the application of Section 94. But, Order 39 Rules 1 and 2 are the Rules prescribing the procedure for granting temporary injunction in a suit only. So, it may appear that Order 39 cannot be taken and imparted, as a rule prescribing procedure, to any proceedings other than suit, like the present application filed under Section 25 of the Act 12 of 1955; but it is not so.

An analysis of Section 141 of CPC

26.At this juncture, Section 141 of the CPC assumes significance and relevance as a saving provision, which makes Section 94 operative in all proceedings, other than suits in a court of civil jurisdiction. Section 141 of CPC reads thus:

Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 35

141.Miscellaneous proceedings.-The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, n all proceedings in any Court of civil jurisdiction.

1[Explanation.-In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.]

27.The provisions in the CPC contain both substantive and procedural laws. It is settled by Nawab Usman Alikhan v. Sajarmal [AIR 1965 SC 1798]. Section 141 makes applicable to other proceedings, only those provisions of the court which deals with the procedure and not those which deals with the substantive rights. It is so held in Thresia v. Xavier [AIR 1977 KER 118 (FB)] also. The substantive and procedural laws Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 36

28.Here the question that emerges is, what is the nature and legal character of Section 94(C) and Order 39 Rules 1 and 2 of CPC? Since Section 94 alone is not a self working provision, having no operation without Order 39 Rules 1 and 2, both provisions must be construed together and not separately or independently. The power under section 94(c) can be invoked only if the facts of the case satisfy the statutory requirements under Order 39 Rules 1 and 2. Thus, CPC provides only one set of provision to grant temporary injunction, i.e., section 94(c) read with Order 39 Rules 1 and 2. Consequently, the source of power is also one and not two. In view of the decisions referred to above, the Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 37 power to grant temporary injunction can be invoked under Section 94(c) with Order 39 Rules 1 and 2, if it is a procedural law. What is procedural law and what is substantial law? No authority has been placed before us, to distinguish procedural law from substantive law. But, we find that Salmond on Jurisprudence, 12th edition, by P.J.Fitzgerald, Chapter 15 deals with substantive law and procedural law. In this Chapter a test has been prescribed to distinguish between substantive law and procedural law. We quote the relevant paragraph, which prescribes the test:

"substantive law and the law of procedure It is no easy task to state with precision the exact nature of the distinction between substantive law and the law of procedure(a), and Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 38 it will conduce to clearness if we first consider a plausible but erroneous explanation. In view of the fact that the administration of justice in its typical form consists in the application of remedies to the violations of rights, it may be suggested that substantive law is that which defines the rights, while procedural law determines the remedies. This application, however of the distinction between jus and remedium is inadmissible. For, in the first place, there are many rights (in the wide sense) which belong to the sphere of procedure; for example, a right of appeal a right give evidence on one's own behalf, a right to interrogate the other party, and so on. In the second place, rules defining the remedy may be as much a part of the substantive law as are those which define the right itself. No one would call the abolition of capital punishment, for instance, a change in the law of criminal procedure. The substantive part of the criminal law deals, not with crimes alone, but with punishments also. So in the civil law, the rules as to the measure of damages pertain to the substantive law, no less than those declaring what damage is actionable; and rules determining the classes of agreements which will be specifically enforced are as clearly substantive as are those determining the agreements which will be enforced at all. To define procedure as concerned not with rights, but with remedies, is to confound the remedy with the process by which it is made available.

What, them is the true nature of the distinction? The law of procedure may be defined Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 39 as that branch of the law which governs the process of litigation. It is the law of actions--jus quod ad actiones pertinet--using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated."

A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation. Whether I have a right to recover certain property is question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law , for they relate merely to the modes in which the courts fulfil their functions. What facts constitute a wrong is determined by the substantive Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 40 law; what facts constitute proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely.

29. When applying the above test to Section 94(c) r/w Order 39, we find that the grant of temporary injunction until further order or disposal of the suit or proceedings does not confer or declare any substantive right. It is well discernible from the expression in Rule (1)(c) that the court may, by order, grant temporary injunction to restrain from such act or to make such order for the purpose of staying and preventing the wasting, damaging, alteration, sale, removal or disposition of property or disposition of plaintiff or Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 41 otherwise causing injury to the plaintiff in relation to any property. We are of the opinion that the object of granting temporary injunction is preservation and protection of the subject matter without any alteration or change until further order or disposal of the suit or any proceedings, as the case may be. In other words, the power to grant temporary injunction is given to the court to prevent the frustration of suit or proceedings, as the case may be, by subsequent events or conduct of the parties, during the pendency of the proceedings. There is no declaration of any kind of rights. The order of temporary injunction shall have effect till the specified time or further order or the Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 42 disposal of the suit or proceedings and it will merge in the final judgment. In short, it is an enabling provision only to keep the subject matter alive, as such, to adjudicate the dispute on merits, completely and effectively. The entitlement of temporary injunction, as described under Section 94(c) r/w Order 39 Rules 1 and 2, is not a substantive right, but it is a procedural right, which can be granted at the discretion of the court. A substantive right cannot be at the discretion of the court and it must be one that can be claimed as of right. So discretionary right cannot be a substantive right.

30.As regards the Gandhian Institute of Studies Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 43 case (supra), we are of the opinion that, in the said case, the Allahabad High Court had no opportunity to examine exhaustively all the provisions in the CPC, falling under the procedural laws. Obviously, the nature and legal effect of granting an order of temporary injunction, under section 94(c) read with Order 39 Rules 1 and 2, were not specifically examined in the said decision. Therefore, we find that the said decision has no binding effect on the question of law referred to us.

31.In the above analysis, we hold that the power to grant temporary injunction under Section 94 and Order 39 Rules 1 and 2 is a procedural law and Section 141 of the CPC makes it applicable to all other proceedings Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 44 in a court of civil jurisdiction. Inherent power of the courts

32.The next question is, can the District Court pass a temporary order of injunction in exercise of inherent power, saved by section 151 of the CPC. Section 151 of the CPC reads thus:

Saving of inherent powers of Court.-- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

33.Let us examine the arguments advanced by the learned counsel for the review petitioners.

On an analysis of the entire proceedings in Act 12/1955, we find that there is no provision absolutely barring the jurisdiction Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 45 of the civil court or constituting a special court, for exercising the power enumerated under section 25 of Act 12/1955. On the contrary, a special provision, section 25, is incorporated, conferring jurisdiction to the regular District Court, for granting certain specific reliefs to specified persons only. Merely on the reason that the Act confers jurisdiction to the regular District Court to grant certain relief only to certain specified persons, such a conferment will not alter or change the legal status or character of the regular District court and the District Court will sit in judgment as such, while exercising jurisdiction and power in an application filed under section 25 of act 12/1955 also. Being a Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 46 court of civil jurisdiction, the District court will always have the inherent power saved under section 151 of the CPC. Hence, we reject the argument that the District Court will loose its character and assume character of a special court while sitting in judgment on an application filed under section 25 of Act 12/1955.

34.The crucial question is, can the District Court grant a temporary order of injunction invoking the inherent power saved under section 151 of the CPC? We find that the said questions stand settled by the decision in MANOHAR LAL CHOPRA V. RAI BAHADUR RAO RAJA SETH HIRALAL(AIR 1962 SUPREME COURT 527). The relevant paragraphs read thus:

Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 47 (18) There is difference of opinion between the High Courts on this point. One view is that a court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code:

Varadacharlu v. Narsimha Charlu, AIR 1926 Mad 258; Govindarajulu v. Imperial Bank of India, AIR 1932 Mad 180; Karuppayya v. Ponnuswami, AIR 1933 Mad 500 (2) ; Murugesa Mudali v. Angamuthu Mudali, AIR 1938 Mad 190 and Subramanian v. Seetarama, AIR 1949 Mad 104. The other view is that a Court can issue an interim injunction under circumstances which are not covered by Order XXXIX of the Code, if the Court is of opinion that the interests of justice require the issue of such interim injunction : Dhaneshwar Nath v. Ghanshyam Dhar, AIR 1940 All 185 ; Firm Bichchha Ram, baburam v.

Firm Baldeo Sahai surajmal, AIR 1940 All 241 ; Bhagat Singh v. Jagbir Sawhney, AIR 1941 Cal 670 and Chinese Tannery Owners' Association v. Makhan Lal. AIR 1952 Cal 560. We are of opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX, C.P.C. There is no such expression in S.94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code. It is wellsettled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 48 them. The effect of the expression 'if it is so prescribed' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issue, ordinarily the Court is not to use its inherent powers to make the necessary order in the interest of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of the S.94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the court to issue temporary injunction that the provisions of S.94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.

(19) There is nothing in Order XXXIX rules 1 and 2, which, provide specifically that a temporary injunction is not to be issued in case which are not mentioned in those rules. The rules only provide that in circumstances mentioned in them the Court may grant a temporary injunction.

35.In the above decision, the Supreme Court declared that all the courts have power to Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 49 grant temporary injunction, invoking the inherent power, which stands saved under section 151 of the CPC, in circumstances which are not covered by Order 39 CPC.

Conclusion

36.After having bestowed our anxious considerations, on the question referred to us, in view of the relevant law, and judicial precedents, we find that section 94(c) r/w and Order 39 Rules 1 and 2 of the CPC is procedural law only and not a substantive law as the grant of a temporary injunction does not confer any substantive right to the parties. Therefore, the District Court has the power to grant temporary injunction,invoking section 141 of the CPC, Rp908/2018inopc1173/2018& rp909/2018incrp315/2018 50 while exercising the jurisdiction and power in an application filed under section 25 of the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955 (Act 12/1955). That apart, the District Court has inherent power also to grant temporary injunction, invoking the inherent power of the courts, which stands saved under section 151 of the CPC.

37.The reference is answered accordingly.

Sd/-

K.Harilal, Judge Sd/-

Annie John, Judge sl.

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