Gauhati High Court
Reboti Ray vs Sashi Kanta Budhia @ Agarwal on 22 February, 2006
Equivalent citations: (2006)3GLR42, AIR 2007 (NOC) 468 (GAU.)
Author: I.A. Ansari
Bench: I.A. Ansari
ORDER I.A. Ansari, J.
1. The respondent herein instituted, as plaintiff, Title Suit No. 07 of 2001, in the court of Civil Judge (Sr. Divn.), Bongaigaon, seeking, inter alia, a decree of declaration of his rights, title, interest and khas possession over the suit land and permanent injunction. On an application made by the plaintiff under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as 'the Code') read with Section 151 thereof, a temporary injunction was granted in favour of the plaintiff-respondent. In course of time, the petitioner herein appeared, as defendant, in the suit, aforementioned and contested the same by filing written statement. When the suit was pending for hearing, the same was dismissed for default, on 11.11. 2005, as the petitioner was found absent without taking any steps. Thereafter, a, petition was filed by the plaintiff under Order 9, Rule 9 read with Section 151 of the Code seeking restoration of the suit on the ground that his counsel had incorrectly entered into his diary the date of hearing of the suit as 11.12.2005 instead of 11.11. 2005 and as his counsel was required to be away from Bongaigaon, he filed an application, on 6.12.2005, seeking adjournment of the suit (which, according to the impression of the plaintiff's counsel, stood fixed on 11.12.2005) ; but on 22.12.2005, when the plaintiff made an inquiry about his suit, he came to know that the suit already stood dismissed for default as far back as on 11.11. 2005. The absence of the plaintiff and his counsel, on 11.11. 2005, was, thus, according to the plaintiff, inadvertent and bona fide. This application for restoration of the suit gave rise to Misc. (J) Case No. 84/2005. This application for restoration was also accompanied by a petition made under Section 5 of the Limitation Act seeking condonation of delay of eleven days in making the application under Order 9, Rule 9. The learned trial court, then, passed an order, on 22.12.2005, directing notices to be issued to the defendant-petitioner on the application seeking condonation of delay and also on the application for restoration of the suit fixing 25.12.2006 for service report. As no service report was received in respect of the notices issued in terms of the order, dated 22.12.2005, aforementioned, the learned trial court passed an order, dated 25.1.2006, fixing, once again, Misc. (J) Case No. 84/2005 aforementioned, on 15.2.2006, for service report. However, on 17.1.2006, the plaintiff filed an application under Order 39, Rules 1 and 2 of the Code read with Section 151 thereof alleging, inter alia, that taking advantage of the dismissal of the suit and also of the fact that the petitioner resides, at Siliguri, for his business purposes, the defendant had started construction over the suit land, which was going on in full swing; the plaintiff accordingly sought for appropriate order(s) of temporary injunction pending disposal of his application for restoration of the suit made under Order 9, Rule 9 of the Code. This, application for temporary injunction came to be registered as Misc. (J) Case No. 05/2006 and the learned trial court, on 17.1.2006 itself, passed an Order directing notice to be issued to the defendant to show cause as to why temporary injunction, as had been sought for, shall not be granted, the notice being returnable on 25.1.2006. As the notice was returned without being served and the defendant was also absent on 25.1.2006, the learned trial court passed an Order on 25.1.2006, directing status quo to be maintained in respect of the construction over the suit land as on 25.1.2006 and further directed a notice to be issued to the defendant to show cause as to why this Order of restraint be not made absolute. Feeling aggrieved by the order, dated 25.1.2006, aforementioned, whereby the defendant was directed to maintain status quo as indicated hereinbefore, the defendant has, now, impugned the same in this writ petition made under Article 227 of the Constitution of India.
2. I have heard Mr. B.R. Dey, learned senior counsel, appearing on behalf of the defendant-petitioner.
3. Challenging the impugned order, dated 25.1.2006, aforementioned, Mr. Dey has submitted that an Order directing the defendant to maintain status quo is nothing, but a direction in another form of temporary injunction and an Order of temporary injunction, contends Mr. Dey, can be passed only when the conditions prescribed under Order 39, Rules 1 and 2 of the Code are satisfied.
4. A careful reading of the provisions of Order 39, Rules 1 and 2 of the Code clearly indicates, submits Mr. Dey, that temporary injunction can be granted only when there is a suit pending. In the case at hand, points out Mr. Dey, since the suit already stood dismissed for default and the same was yet to be restored, no suit existed in law and when there was no suit pending, the learned trial court could not have passed any Order of restraint pending application for restoration of the suit. The learned trial court has, thus, contends Mr. Dey, usurped the powers under Order 39, Rules 1 and 2 of the Code and such exercise of power, according to Mr. Dey, being without jurisdiction, needs to be interfered with by this Court in exercise of its supervisory control under Article 227 of the Constitution of India.
5. Correct it is, as contended by Mr. Dey, that a temporary injunction can be granted under the provisions of Order 39, Rules 1 and 2 of the Code only when there is a suit pending. The question, however, is as to whether it is possible to grant temporary injunction or any temporary Order of restraint pending an application for restoration of the suit? In other words, the question is this whether, in the absence of a suit or when a suit is not pending or when an application for restoration of the suit is filed, is it possible to grant temporary Order of restraint or Order of temporary injunction ?
6. Quest for an answer to the above question necessitates a careful examination and understanding of the scope and ambit of Order 39, Rules 1 and 2 and also of the inherent powers of a civil court acknowledged under Section 151 of the Code.
7. There can be no doubt, as submitted by Mr. Dey, that under Order 39, Rules 1 and 2 of the Code, a temporary injunction can be granted only when there is a suit pending. Since there is no specific provision extending the application of Order 39, Rules 1 and 2 to the civil appeals, can it be said that no temporary injunction can be granted in appeals arising out of suits ? To answer this question, what needs to be noted is that it is on account of the fact that an appeal is nothing, but extension of the suit and Sub-section (2) of Section 107 of the Code confers same power on the appellate court as are available to the court of original jurisdiction that the provisions of Order 39, Rules 1 and 2, which embody the provisions for grant of temporary injunction in suits, are made applicable to the appeals too, meaning thereby that pending disposal of not only suit, but also appeal, temporary injunction may, in terms of Order 39, Rules 1 and 2, be granted. We are, in the present case, faced with a situation, where the suit stood dismissed for default and what was lying before the court was really an application for restoration of the dismissed suit under Order 9, Rule 9 of the Code. Could the provisions of Order 39, Rules 1 and 2 be applied to such an application seeking restoration of suit ? The answer to the question, so raised, is not very far to seek.
8. Since the provisions of Order 39, Rules 1 and 2 cannot be taken recourse to until and unless a suit or an appeal is pending, it logically follows that since an application seeking restoration of suit under Order 9, Rule 9 is not an extension of suit, the provisions regarding granting of temporary injunction, contained in Order 39, Rules 1 and 2, cannot be, ordinarily, resorted to pending an application seeking restoration of the suit. In other words, in Order to make Order 39, Rules 1 and 2 applicable, there has to be a suit or an appeal pending and in view of the fact that when an application for restoration of suit is heard, there is no suit pending, question of taking recourse to Order 39, Rules 1 and 2 does not arise at all.
9. The only way in which Order 39, Rules 1 and 2 can be made applicable to an application for restoration of suit, made under Order 9, Rule 9, is if such an application can be treated to be a 'proceeding' within the meaning of Section 141 of the Code or if the word 'proceeding1 can be h read in place of the word 'suit' in Order 39, Rule 1. The question, therefore, which, now, arises for consideration is as to whether an application made under Order 9, Rule 9 gives rise to a 'proceeding1 within the meaning of Section 141.
10. The question, posed above, brings me to the provisions of Section 141, which, it may be noted, reads as follows :
141. Miscellaneous proceedings. -The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.
Explanation. - In this Section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.
11. Without entering into the controversy as to what exactly the meaning of the word proceeding occurring in Section 141 of the Code is, what can be safely held, in the light of the Explanation to Section 141, is that a proceeding under Order IX of the Code falls within the meaning of the word 'proceeding1 occurring in Section 141.
12. The crucial question, therefore, which, now, poses itself for consideration is this: To a proceeding within the meaning of Section 141, such as the one, which arises out of an application for restoration of a suit, whether the provisions of Order 39, Rules 1 and 2 are applicable ? A search for an answer to this crucial question brings me back to the, provisions of Section 141.
13. While considering the above aspect of the matter, what needs to be borne in mind is that the Code stands divided, broadly speaking, into two parts. While the main body of the Code, which consists of Sections, creates jurisdiction for the civil courts, the rules framed under various orders indicate the procedure for exercise of such jurisdiction. In other words, the rules framed under various orders of the Code lay down the procedure for exercise of the powers conferred on such courts. Taking note of this prominent feature of the Code, observed the Supreme Court, in Varred Jacob v. Sosamma Greevarghese and Ors. , thus, "The main feature of the Code is its division into two parts. The main body of the Code consists of Sections which create jurisdiction while the rules indicate the manner in which the jurisdiction has to be exercised".
14. Coupled with the above, it is also imperative to note that Section 141 makes applicable to a proceeding, which can be described as a proceeding under Section 141, only procedural part of the Code and not that part, which relates to jurisdiction of the courts under the Code. It was in this view of the matter that the Apex Court held, in Nawab Usman Ali Khan v. Sagar Mai , that by virtue of h Section 141 of the Code, only the procedure provided for suits in the Code and not the substantive rights of the appellant thereunder can be applied to the proceeding under the Arbitration Act. In short, only procedural part of the Code will apply to proceedings under Section 141 and not the substantive rights of the parties or the provisions creating jurisdiction of the courts under the Code.
15. The question, therefore, which stares at us, now, is this : whether it is Order 39, Rules 1 and 2, which confer jurisdiction and powers on the courts of civil jurisdiction to grant temporary injunction ? Since the orders and the rules framed thereunder merely prescribe the procedure for exercise of the powers by the courts, it logically follows that the power to grant temporary injunction lies elsewhere and not in Order 39, Rules 1 and 2. The question is, as to where lies the power to grant temporary injunction. The answer to this question really lies in Section 94 of the Code, for, the relevant portion of Section 94 reads, thus :
94. Supplemental proceedings. - In Order to prevent the ends of justice from being defeated the court may, if it is so prescribed -
(a) ...
(b) ...
(c) grant of 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) ...
(e) ...
16. What is, thus, clear from the above discussion is that it is Section 94(c), which vests the civil courts with the power to grant temporary injunction and also to punish for disobedience of the Order of temporary injunction. How, under what circumstances and in what manner, this power can be exercised is actually given in Order 39, Rules 1 and 2.
17. Since it is merely procedural part of the Code, which applies to a proceeding within the meaning of Section 141, such as, a proceeding for restoration of suit under Order 9, Rule 9, the substantive part of the Code, such as, Section 94(c), would not be applicable to the proceedings of the present nature. In short, to a proceeding, as the one that we have at hand, Section 94(c) would not be applicable.
18. Since Section 94(c) is not applicable to a proceeding within the meaning of Section 141 and since for this reason, even in the circumstances, which satisfy the conditions prescribed under Order 39, Rules 1 and 2, the court, which may be in seisin of an application for temporary injunction, cannot grant temporary injunction, can it be held that the court is powerless to grant temporary injunction in such circumstances? While considering this momentous question, it is of immense importance to note that temporary injunction can be granted, in the light of the language used in Clause (c) of Section 94, 'in Order to prevent ends of justice from being defeated'. It is trite that the purpose of granting temporary injunction is, ordinarily, to restrain the parties from frustrating the suit and also to arrest multiplicity of proceedings taking place. Since the court remains anxious to ensure that the parties litigating before it do not involve in such acts of omission or commission, which may lead to multiplicity of proceedings, or which may frustrate the proceeding pending before the court, imperative it was for the Legislature to vest such powers in the court, which the court can resort to, in Order to achieve its predominant goal of stopping 'ends of justice from being defeated', by granting, if necessary, temporary injunction, even in the circumstances, which the Legislature has not mentioned or prescribed in Order 39, Rules 1 and 2, for, Legislature, while codifying the procedure, may not have envisaged all the eventualities, which may crop up either on commencement of the suit or during the progress thereof and/or on termination thereof, which would warrant exercise of powers to grant temporary injunction in Order to prevent the ends of justice from being defeated. It was for such reason that a very court, exercising civil jurisdiction, has been given inherent powers under Section 151 of the Code.
19. Inherent power, thus, inheres in every court of civil jurisdiction to grant temporary injunction in Order to prevent the ends of justice from being defeated. To put it differently, every court of civil jurisdiction has inherent power to make such order(s) as may be necessary for the ends of justice or to prevent the abuse of the process of the court.
20. According to Mr. Dey, as already indicated hereinabove, no court can grant temporary injunction except when the conditions prescribed under Order 39, Rules 1 and 2 are satisfied. Since Order 39, according to Mr. Dey, can be resorted to during the pendency of the suit, it is contended by Mr. Dey that with dismissal of the suit, no proceeding remains pending and, hence, Order 39, Rules 1 and 2 cannot be resorted to and, consequently, in a proceeding arising out of an application for restoration of suit, no injunction, under any circumstance, can be granted by taking resort to Order 39. Is this submission sustainable ? The answer to this monumental question is not very far to seek, for, the concern, which Mr. Dey expresses on the limits of the powers of the civil court, is traceable in the dissenting voice of S.C. Saha, J (as his lordship then was), in Manokar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, , which runs as follows:
...but I am unable to hold that civil courts generally have inherent jurisdiction in cases not covered by Rules 1 and 2 of Order 39, Civil Procedure Code to issue temporary injunctions restraining parties to the proceedings before them from doing certain acts. The powers of courts, other than the Chartered High Courts, in the exercise of their ordinary original civil jurisdiction to issue temporary injunctions are defined by the terms of Section 94(1)(c) and Order 39, Civil Procedure Code. A temporary injunction may issue if it is so prescribed by rules in the Code. The provisions relating to the issue of temporary injunctions are to be found in Order 39, Rules 1 and 2 : a temporary injunction may be issued only in those cases which come strictly within those rules, and normally the civil courts have no power to issue injunctions by transgressing the limits prescribed by the rules....
The Code of Civil Procedure is undoubtedly not exhaustive : it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, a departure therefrom is not permissible. As observed in L.R. 62 IA. 80 (Maqbul Ahmed v. Onkar Pratab). "It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits of the Act a general discretion to dispense with the provisions of the Act". Inherent jurisdiction of the court to make Order ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.
21. In short, what S.C. Shah, J, (as his lordship then was) observed amounts to holding that civil courts have jurisdiction to grant temporary jurisdiction only under Order 39, Rules 1 and 2 and if Order 39, Rules 1 and 2 cannot be resorted to in a given case, the inherent jurisdiction cannot be exercised by the court to give relief of temporary injunction.
22. Disagreeing with the lone dissenting voice of Shah, J, the majority, in Manohar Lai (supra), speaking through R. Dayal, J, observed and held as follows : -
On behalf of the appellant, two main questions have been raised for consideration. The first is that the court could not exercise its inherent powers when there were specific provisions in the Code of Civil Procedure for the issue of interim injunctions, they being Section 94 and Order 39.
On the first question it is argued for the appellant that the provisions of a Clause (c) of Section 94, Code of Civil Procedure make it clear that interim injunctions can be issued only if a provisions for their issue is made under the rules, as they provide that a court may, if it is so prescribed, grant temporary injunctions in Order to prevent the ends of justice from being defeated, that the word 'prescribed', according to Section 2, means 'prescribed by rules' and that Rules 1 and 2 of Order 39 lay down certain circumstances in which a temporary injunction may be issued.
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 39 of 'the Code : Varadacharlu v. Narmisha Charlu AIR 1926 Mad. 255, 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 39 of the Code, if d the court is of opinion that the interest of justice require the issue of such interim injunction : Dhaneshwar Nath v. Ghanshyam Dhar AIR 1940 All. 185, Firm Bichchha Ram v. Firm Baldeo Sahai AIR 1940 All. 241, Bhagat Singh v. Jagbir Sawhney AIR 1941 Col. 670 and Chinese Tannery Owners 'Association v. Makhan Lal . We are of opinion that the latter view is correct and that the courts have inherent e jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39, Code of Civil Procedure. There is no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39, or by any rules made under the Code. It is well settled that the provisions of f 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 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 issued, ordinarily the court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94were 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 h 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 Section 94 of the Code have their effect and not in taking away the right of the court to exercise its inherent power.
There is nothing in Order 39, Rules 1 and 2, which provide specifically that a temporary injunction is not to be issue in cases which are not mentioned in those rules. The rules only provide that in circumstances mentioned in them the court may grant a temporary injunction.
Further, the provisions of Section 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. Section 151 reads:
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 the justice or to prevented abuse of the process of the court.
A similar question about the powers of the court to issue a commission in the exercise of its power under Section 151 of the Code in circumstances not covered by Section 75 and Order XXVI, arose in Padam Sen v. The State of Uttar Pradesh and this Court held that the court can issue a commission in such circumstances. It observed at page 887, thus:
The inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and, therefore, it must be held that the court is free to exercise them for the purpose mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature.
These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justices.
23. From a careful reading of what has been observed and held by the . majority in Manohar Lal (supra), it becomes transparent that courts have inherent jurisdiction to issue temporary injunction in the circumstances, which are not covered by the provisions of Order 39, for, there is no such expression in Section 94, which completely prohibits the issue of temporary injunction in the circumstances not covered by Order 39 and rules framed thereunder or in the circumstances in which Order 39 and rules framed thereunder cannot be resorted to.
24. Noticing the above aspects of the inherent power of the courts of civil jurisdiction, particularly, in the field of granting of temporary injunction, the majority, speaking through V.N. Khare, CJ, in Vareed Jacob (supra) held and observed, thus, "In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal , it has been held that the effect of the expression "if so prescribed" in Section 94 CPC is to prescribe the circumstances in which courts can exercise or grant a particular relief and ordinarily the court is not to use its inherent power to make the necessary orders in the interest of justice, but to see whether the circumstances of the case come within the prescribed rule, Therefore, in case where the plaintiff seeks temporary injunction courts have to ascertain whether the facts of the case fall under Order 39. That it is in the incidence of exercise of power of the court to issue temporary injunction that Section 94 has a role to play and that Section 94, however, does not of the court to exercise its inherent power. In the same judgment, Section 151 CPC is also analysed. The Apex Court in the same judgment has held that inherent power has not been conferred upon the court by Section 151 CPC. It is a power inherent in the court by virtue of its duty to do justice between the parties before it. That Section 151 merely recognizes the existence of the inherent power of the court, therefore, even if in a given case circumstances do not fall within Order 39 CPC, the courts have inherent jurisdiction to issue temporary injunction if the court is of the opinion that interest of justice requires issue of such interim injunction.
In the case of Ram Chand and Sons Sugar Mills (P.) Ltd. v. Kanhayalal Bhargava , it has been held f by this Court that the inherent power of the court under Section 151 CPC is in addition to and complimentary to the powers expressly conferred under CPC, but that power will not be exercised in conflict with any of the powers expressly or by implication conferred by other provisions of CPC. If there is express provision covering a particular g topic, then Section 151 CPC cannot be applied. Therefore Section 151 CPC recognizes inherent power of the court by virtue of its duty to do justice and which inherent power is in addition to and complementary to powers conferred under CPC, expressly or by implication.
In the cases of Jagjit Singh Khanna v. Dr. Rakhal Das Mullick it has been held that a temporary injunction may be granted under Section 94(C) only if a case satisfies Order 39, Rules 1 and 2. It is not correct to say that the court has two powers, one to grant temporary injunction under Section 94(c) and the other under Order 39, Rules 1 and 2. That Section 94(c) CPC shows that the court may grant a temporary injunction thereunder, only if it is so prescribed by Rule 1 and Rule 2 of Order 39. The court can also grant temporary induction in exercise of its inherent powers under Section 151, but in that case, it does not grant temporary injunction under any of the powers conferred by CPC, but under powers inherent in the constitution of the court, which is saved by Section 151 CPC.
25. From what has been held in Vareed Jacob (supra), it clearly follows that when the court finds, in a given case, that Section 94(c) cannot be applied, but granting of temporary injunction is necessary for ends of justice or to prevent abuse of the process of the court, the power to grant temporary injunction can be exercised by the court in exercise of its inherent jurisdiction under Section 151. No wonder, therefore, that in Vareed Jacob (supra), clarifying the position of law as to when temporary injunction can be granted even when Section 94 is inapplicable, the court observed, The above discussion shows that the source of power of the court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore, when a matter comes before the court, the court has to examine the facts of each case and ascertain whether the ingredients of Section 94 read with the rules in an Order are satisfied and accordingly grant an appropriate relief. It is only in cases where circumstances do not fall under any of the rules prescribed that the court can involve its inherent power under Section 151 CPC. Accordingly, the courts have to grant relief of attachment before judgment, if the circumstances fall under Order 38 CPC. Similarly, courts will grant temporary injunction if the case satisfies Order 39. So depending on the circumstances falling in the prescribed rules, the power of the court to grant specified relief would vary. Therefore, each set of rules prescribed are distinct and different from the other and therefore, one cannot equate rules of temporary injunction with rules of attachment before judgment although all are broadly termed as interlocutory orders.
26. Since Section 141 makes available to courts only the procedure prescribed under the Code, what would happen in a proceeding, envisaged under Section 141, where the circumstances of the case require granting of temporary injunction ? Since temporary injunction is granted in Order to prevent the ends of justice from being defeated, imperative it is to hold that if the court, which comes in seisin of a proceeding, under Order 9, Rule 9, which falls within the meaning of the word 'proceeding' under Section 141, finds that a situation warranting grant of temporary injunction has arisen, the court must be deemed to have inherent jurisdiction to grant such an injunction, for, non-exercise of such power would allow ends of justice to be defeated.
27. This does not mean, I must hasten to add and clarify, that the court can circumvent the specified powers and the procedure embodied in the Code for granting of a particular relief. It is for this reason that when a specific provision has been made for the purpose of setting aside ex parte decree, no court can take resort to Section 151 for setting aside such a decree. It was in this context that the Apex Court in Ramkarandas Radhavallabh v. Bhagawandas Dwarkadas, , held that when rule 4 of Order 37 expressly gives power to a court to set aside a decree passed under the provisions of Order 37, the expressed provisions of the Code cannot be defeated by taking recourse to Section 151 of the Code for the purpose of setting aside such a decree. It was not held in Ramkarandas (supra) that contrary to what has been held in Manohar Lai (supra), the courts have no inherent power to grant temporary injunction in the circumstances as have been indicated hereinabove-. Far from this, reliance has been placed in Ramkarandas (supra) on the observations made in Manohar Lai (supra), which run, thus, "The inherent powers are to be exercised by the court in very exceptional circumstances, for which the Code lays down no procedure".
28. Moreover, the decision in Manohar Lai (supra) is a decision rendered by a four Judges Bench; whereas, the decision in Ramkarandas (supra) was by a two Judges Bench, which, in fact, followed the principles laid down in Manohar Lal (supra). Similarly, since Section 10 of the Code specifically confers jurisdiction on the court to stay proceedings of a subsequently instituted suit in certain given circumstances, the proceedings of the subsequent suit cannot be stayed by taking resort to Section 151. It is this position of law, which Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. , reflects. It is precisely for this reason that if a right of second appeal has not been given to an aggrieved person in any proceeding of civil nature, recourse cannot be had to the substantive part of the Code to assume such a jurisdiction or inherent powers of the courts contained therein.
29. What crystallises from the above discussion is that to a proceeding, conceived under Section 141, substantive part of the Code is not applicable. What is applicable to such a proceeding is the procedural part of the Code. An application for restoration of suit made under Order 9, Rule 9 gives rise to a 'proceeding' as envisaged under Section 141. To such a 'proceeding, Section 94(c) not being available, court cannot grant temporary injunction by taking resort to Order 39, Rules 1 and 2. However, if in a 'proceeding', conceived under Section 141, such as, an application under Order 9, Rule 9, situation demands granting of temporary injunction for ends of justice or to prevent abuse of the process of the court, there is no impediment, on the part of the court, to grant such injunction by taking resort to Section 151.
30. Bearing in mind the above prominent features of the law under discussion, when I revert to the case at hand, what catches my attention, immediately, is that the present one is a case, where as suit was dismissed not on merit, but on default. While the suit was pending, there was, admittedly, an Order of temporary injunction restraining, in effect, the defendant-petitioner from carrying out any construction over the suit land. In consequence of the dismissal of the suit, the said Order of temporary injunction also did not survive, though there was no specific Order vacating the temporary injunction. In such a situation, the plaintiff-respondent came back to the learned trial court with an application made under Order 9, Rule 9 of the Code seeking restoration of the suit. Since there was delay of about 11 days in making this application, there was also an application for condonation of delay and notices were accordingly ordered to be issued to the defendant-petitioner. While making the application for restoration of the suit, the plaintiff-respondent also made an application under Order 9, Rules 1 and 2 read with Section 151 of the Code seeking Order of temporary injunction on the ground that taking advantage of the dismissal of the suit, the defendant-petitioner had started construction and that the construction work was being carried out expeditiously and that the same may be stopped by suitable Order of temporary injunction. The learned trial court issued notice to the defendant-petitioner on the application for temporary injunction too. As the defendant-petitioner did not appear on the date, which was fixed for return of the notice, i.e., on 25.1.2006, and it was reported that the defendant was avoiding receipt of the notice, the learned trial court directed the parties to maintain status quo in respect of the construction aforementioned as on 25.1.2006. Instead of appearing in the court below and showing cause against the prayer for granting of temporary injunction, the defendant-petitioner has come before this Court by means of the present writ petition. This clearly shows that the defendant-petitioner was aware of the notice of temporary injunction and tried to avoid service of the same on him. In a situation, where the learned trial court was to consider if the suit shall be restored or not, it was in the fitness of things that the parties be directed to maintain status quo. The direction, so given, can, therefore, be neither described as an exercise of power without jurisdiction and/or without just and adequate reasons. The impugned order, thus, aimed at preventing the end of justice being defeated. Such an Order cannot be interfered with in exercise of powers under Article 226 and/or 227 of the Constitution of India. Had the learned trial court not interfered in a situation, such as, the present one, the developments, taking place subsequent to the dismissal of the suit, would lead to a multiplicity of proceedings. Viewed from this angle too, the directions to the defendant-petitioner to maintain status quo, as on 25.1.2006, cannot be said to be illegal, unreasonable or illogical.
31. Considering, therefore, the matter in its entirety, I am firmly of the view that the defendant-petitioner has not been able to make out any case warranting interference by this Court, in exercise of its writ jurisdiction under Article 226 or 227 of the Constitution of India, with the impugned order, dated 25.1.2006, whereby the learned trial court directed the defendant-petitioner to maintain status quo as on that day, i.e., 25.1.2006.
32. In view of the conclusion reached above, this writ petition must fail and the same shall accordingly stand dismissed.
33. Before parting with this writ petition, what may be pointed out is that an interlocutory order, such as, an Order of temporary injunction would stand revived along with the suit, when the dismissal of the suit is set aside and when the suit is restored unless the court, expressly or by implication, does not restore such interlocutory order. (See Vareed Jacob (supra). This is, in the opinion of the majority in Vareed Jacob (supra), the position of law with regard to interlocutory orders, such as, an Order of temporary injunction. In the present case, while dismissing the suit for default on 11.11.2005, the learned trial court merely dismissed the suit and did not pass any specific Order vacating the Order of temporary injunction. Hence, if the learned trial court decides to restore the suit, the Order of temporary injunction passed in the suit would automatically revive unless the learned trial court f passes an Order making expressly or by implication clear that the restoration of the suit would not mean revival of the temporary Order of injunction already passed in the suit. In the case at hand, therefore, the impugned Order of restraint, and/or whatever further order(s) are passed on the plaintiff-respondent's petition for temporary injunction, would be subject to the out-come of the application for restoration of the suit. Hence, the impugned direction to maintain status quo and/or any such further direction that may be passed by the learned trial court shall be subject to whatever order(s) are, eventually, passed in the application for restoration of the suit made by the plaintiff-respondent and if and when the suit is restored, the learned trial court shall have the liberty to pass such other or further order(s) in the suit as may be necessary and permissible in law.
34. With the above observations and directions, this writ petition shall stand disposed of.
35. No Order as to costs.