Kerala High Court
Raghavan And Anr. vs Sankaran Ezhuthassan on 31 July, 1992
Equivalent citations: AIR1993KER178, AIR 1993 KERALA 178, 1992 (2) KERLT 659, (1992) 2 KER LT 959, (1993) ILR(KER) 2 KER 570, (1993) 1 KER LJ 71
ORDER G.H. Guttal, J.
1. The petitioners are plaintiffs in O.S. No. 356 of 1991 in the Court of Subordinate Judge, Trissur. The respondent-defendant holds a decree for possession against the petitioner. The decree was passed by the subordinate court, Trissur in O.S. 32 of 1968. By an application 1. A. 1175/1991 the petitioner sought interim injunction restraining the defendants from recovering possession in execution of the decree in O.S. 32/ 1968. The Subordinate Judge, Trissur, dismissed the I.A. 1175/91. "the petitioners' C.N.A. 57 of 1991, was dismissed by the District Judge, Trissur. According to the learned District Judge, the court which made the decree in O.S, 32/1968 was not subordinate to the court which was called upon to grant the injunction. Therefore Section 41(b) of the Specific Relief Act, hereinafter referred to as the Act precludes the grant of injunction. The plaintiff challenges the legality of these orders. In this judgment the parties are referred by their nomenclature in the suit.
2. The decree in O.S. 32/1968 sought to be executed was made by the same court from which the injunction to prevent the execution is sought. The question, therefore is whether Section 41(b) applies, to a case in which the court from which injunction is sought, is the same court which made the decree execution of which is sought to be prevented.
3. Clause (b) of Section 41 of the Act lays down that an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a court "not subordinate" to that from which the injunction is sought. There must be a proceeding sought to be prevented and such proceedings must have been instituted or is being prosecuted in a court which is not subordinate to the court where the subsequent proceedings are instituted. "Not subordinate" are significant words. Courts are of (a) subordinate jurisdiction, (b) superior jurisdiction or (c) co-ordinate jurisdiction. The court of the subordinate judge, Thrissur, is not superior to the court of subordinate judge, Thrisur. It is the same court. It is also not subordinate to the same court. Co-ordinate means equal, of the same rank, or of importance. Since two equals cannot be subordinate to each other, it follows that theres is no subordination between courts of co-ordinate jurisdiction. "Coordinate" necessarily means "not subordinate." The question whether Court A is subordinate, arises only in the context of another Court B in relation to which its status is to be decided. It therefore follows that the words "not subordinate" or "co-ordinate" have no application where there is only one court under consideration. Therefore in a case where both the proceedings are instituted in the same court the question even of "coordinate" status does not arise, for, there is only one court under consideration. It is therefore illogical even to consider whether the same court is subordinate to itself.
4. The question boils down to this. Can a court grant an injunction to restrain a person from instituting or prosecuting proceedings before itself. The sub court of Trissur is certainly not subordinate to itself because it is "itself and not its subordinate. This is very simple. But the controversy is created by the words "not subordinate" used in Section 41(b) of the Act. The question not free from doubt, has not yet been judicially resolved. That is why the Supreme Court in Cotton Corporation of India Limited v. United Industrial Bank Limited, AIR 1983 SC 1272 characterised this controversy as "an unresolved controversy." The Calcutta High Court in Ram Sadan Biswas v. Mathura Mohan Hazra, AIR 1925 Cal 233 and the Patna High Court in Radha Madhab Jiu Thakur v. Rajendra Prasad Bose, AIR 1933 Pat 250 had no hesitation in holding that the prohibition under Clause (b) of Section 41 of the Specific Relief Act does not apply to the grant of injunction to restrain a party from prosecuting a proceeding before itself.
5. The rationale of these decisions is two fold. Firstly every court has inherent jurisdiction to protect itself from abuse of its own process and the need to prevent it by an injunction. Secondly, the court from which the injunction is asked for can regulate the proceedings before itself by an appropriate injunction. It is for these reasons that the prohibition enacted by Clause (b) of Section 41 cannot be applied where a court grants injunction in respect of the proceedings before itself. Suppose a court makes an order or decree which is subsequently discovered to be the result of fraud or abuse and the party affected adversely seeks an injunction to restrain the opposite party from taking advantage of the order obtained by fraud or abuse of the court's process. If Section 41(b) were applied to such cases the results would be disastrous. This is the rationale behind the exclusion of the same court from the scope of the application of Clause (b) of Section 41 of the Act.
6. The only judgment which struck a discordant note is of the Madras High Court in Venkatesa Tawker v. Ramasami Chettiar, ILR 18 Mad 338. The judgment of the Madras High Court is not based on any principle relating to injunctions. It fails to take note of the two principles set out above, which form the rationale of the view which has been taken by the Calcutta and Patna High Courts. I am in respectful agreement with the views of Calcutta and Patna High Courts referred to above.
7. But learned counsel for the respondents urged that having regard to the judgment of this Court in Devasia Chacko v. Venkita Krishna Iyer, (1992 (1) KLJ 597) it is not open to me to adopt the view of the Calcutta and Patna High Courts. It is, therefore, necessary to consider what was exactly laid down by Justice Shamsuddin in Devasia Chacko (supra). Suit No. 211 of 1990 in the court of the Principal Subordinate Judge, Alappuzha, was for a declaration that the decree in O.S. No. 81 of 1978 on the file of the Sub Court, Alappuzha, is not binding on the plaintiff and consequential injunction restraining the defendants from executing the said decree. Justice Shamsuddin held that neither a permanent injunction nor a temporary injunction under Section 151 of the Code of Civil Procedure can be invoked in view of the express bar contained in Section 41(b) of the Specific Relief Act. Although both the suits were in the same court, my learned brother Shamsuddin, J. was of the view that Section 41(b) precluded the court from granting the injunction.
The question is whether the judgment lays down a binding judicial precedent for the proposition that an injunction cannot be granted even if the second suit is filed in the same court. This question was not urged before Shamsuddin, J. But the court applied the bar created under Section 4I(b) even in respect of suits filed in the same court. It is, therefore, necessary to understand what are judicial precedents and what is meant by binding effect.
8. Which judicial precedents have binding effect? In what circumstances are judicial decisions deprived of their binding force? These questions are answered by Salmond in his work on jurisprudence. (Salmond on Jurisprudence 12th Edition, Pages 148-157). One of the circumstances which deprives a judicial decision of its binding force is when it passes "Precedents sub silentio or not fully argued." When a particular point of law involved in a decision is not perceived by the court or present to its mind, the decision is said to be sub silentio. The Court may consciously decide in favour of one party because of point A which it considered and pronounced upon. It may be shown however, that logically the court should not have decided it in favour of a particular party uness it also decided point B in his favour. But then point B was not argued or considered by the court. In such circumstances, although the point B was logically involved in the facts and although the case had a specific outcome the decision is not an authority on point B. The point B is said to pass sub silentio (Pages 153-154 Salmond). Salmond illustrates the point by referring to Gerard v. Worth of Paris Ltd., (1936) 2 All ER 905 and Lancaster Motor Co. v. Brennith Ltd. (1941) I KB 675. The rule that a precedent sub silentio is not authoritative is well settled.
9. Consider what happened in Devasia Chacko. Whether the bar created by Section41(b) of the Specific Relief Act did not apply where the injunction was sought from the same court, was a question which needed to be answered before the plaintiff was denied the injunction. This point was not urged or considered. Therefore it passed sub silentio. Sometimes it is argued in a later case that in a previous judgment which decided point B a certain argument was not advanced. Where point B was decided, the rule of sub silentio does not apply. A case in which point B was decided binds the court in a later case: It cannot then be arued that it is not binding because certain argument in regard to point B was not advanced. That is why the Supreme Court in Somawanti v. State of Punjab AIR 1963 SC 151 held that the binding effect of a precedent does not depend upon whether a particular argument was advanced. In that case the previous judgments had decided the point B. In the case before Shamsuddin, J. the point arising in this case was not urged.
In M/s. New India Steel Industries v. V.D. Steel Industries AIR 1980 SC 1706, the Supreme Court declined to follow its own observations in an earlier case, as the point was "neither raised nor argued" and in such case a discussion by the court in the earlier case would not be a precedent. Therefore in order to constitute a precedent it is necessary that the point is raised and argued.
10. A decision on this question was necessary but was not urged and decided. Therefore I hold that the question arising in this case passed sub silentio in Devasia Chacko (1992) 1 KLJ 597. Therefore Devesia Chacko (1992) 1 KLJ 597 is not an authority for the proposition that Section 41(b) of the Act applies to suits in which injunction is prayed for are instituted in the court which made the decree the execution of which is sought to be prevented.
11. For all these reasons the petition is allowed. The impugned order is set aside and proceedings remanded to the learned District Judge who shall dispose of C.M.A. No. 57 of 1991 on its merits.