Kerala High Court
E.M. Ahmu vs P.S. Ramalingam on 21 February, 1992
Equivalent citations: AIR1993KER33, AIR 1993 KERALA 33, (1992) ILR(KER) 2 KER 782, (1992) 1 KER LJ 566, (1992) 1 KER LT 624, (1992) 2 CURCC 343
ORDER K.P. Balanarayana Marar, J.
1. Has the appellate Court in an appeal from an order granting ad interim injunction power to hear and dispose of the appeal on merits ? This is the precise question that arises in this civil revision petition.
2. Elections were recently held in this State for electing members to the District Congress Committee, Kerala Pradesh Congress Committee, Mandalm Committee etc. Elections were proposed to be held in Thrissur District also along with the election in the other Districts. Elections to Booth Committees and elections of the Presidents of those committees and delegates to block committees were conducted on 19-1-1992. The election to the D.C.C. and K.P.C.C. by the members of the block committees so elected was scheduled to be held on 28-1-1992. In the meantime revision petitioner filed the suit O.S. 149/92 before Sub-Court,Thrissur seeking an injunction restraining the respondent, the Returning Officer from conducting the elections to the K.P.C.C. and D.C.C. alleging that the list of elected members had not been published and plaintiff could not file his nomination as a candidate for such election. A mandatory injunction directing respondent to produce the list showing the names of the polling officers and observers and to publish the list of elected members was claimed apart from a prohibitory injunction restraining first defendant from conducting the elections to K.P.C.C. and D.C.C. A petition for temporary injunction was also moved by the plaintiff. An ad interim injunction was granted. Respondent -- 1st defendant filed an application for advancement of hearing and hearing of the petition was advanced to 3-2-1992. According to the first defendant the election to K.P.C.C. was scheduled to be held on 31-1-1992 and the election process in Thrissur District had to be completed before that date. An appeal was therefore filed against the order of ad interim injunction before District Court, Thrissur. Revision petitioner took notice of the appeal and entered appearance. The District Court heard both sides and by order dated 30-1-1992 the appeal was allowed and the injunction granted by the trial Court was vacated. That order is under challenge in this revision.
3. Before going to the merits of the contentions raised by both parties before the Court below it has to be seen whether the Court below was competent to hear the appeal and decide the same of merits. The contention is that the Court has virtually heard the temporary injunction petition on merits and has thus exercised jurisdiction not vested in it by law. The order passed by the Subordinate Judge is an order of ad interim injunction under Rule 1 of Order XXXIX C.P.C. The Court is competent to grant an injunction without giving notice to the opposite party though ordinarily the court shall direct notice of the application. The Court is empowered to grant an injunction without notice where it appears that the object of granting the injunction would be defeated by the delay. Certain safeguards had been provided for in the amended Rule 3 of Order XXXIX. The Court has to record reasons for its opinion that the object of granting the injunction would be defeated by the delay and has also to require the applicant to deliver to the opposite party or to send to him by registered post immediately after the order granting the injunction has been made a copy of the application together with a copy of the affidavit filed in support of the application, a copy of the plaint and copies of documents relied on by the applicant. Either on the day on which the injunction was granted or on the day immediately following that day an affidavit stating that the copies aforesaid had been so delivered or sent has also to be filed by the applicant. This requirement has been introduced in the rule to enable the opposite party to appear and move the Court to get the order of injunction discharged or varied or set aside on an application made thereto. By Rule 3A introduced in Order XXXIX by the amendment of 1976 it is provided that where an injunction has been granted without giving notice to the opposite party the Court shall make an endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted. In case the Court is unable to do so it has to record its reasons for such inability. In the present case the Court has not finally disposed of the application whereas the final disposal is seen done by the appellate Court on the appeal filed against the order granting ad interim injunction.
4. Has the appellate Court all the powers of the trial Court to consider a prima facie case and other relevant aspects for the first time as if it is hearing a petition for temporary injunction ? Is the appellate Court competent to consider all the relevant documents and pleadings and pass an order of temporary injunction finally disposing of the application ? Has the appellate Court jurisdiction to hear and dispose of such an application on an appeal presented against an order of ad interim injunction? These questions require an answer in this revision petition.
5. The first aspect to be considered is whether the order is appealable or not. This Court in the decision in Kunjan Bhaskaran v. Ambika, ILR 1977 (2) Kerala 228 held that the order of injunction, whether interim or final, is an order falling within Rule 1 or 2 of Order 39 and therefore appealable under Order 43, Rule 1(r). It is also observed that the appealability is not taken away by the circumstance that Rule 4 of Order 39 enables the order of injunction to be discharged, varied or set aside on application made for that purpose. The matter was again considered by this Court in Alice v. Thommen, 1983 KLT 97. It was observed that there is nothing in Order 43, Rule 1 (r) either expressly or impliedly showing or indicating that the order contemplated therein is only afinal order and not an interim or temporary order. It was held that any order, whether final or interim or temporary passed or purported to have been passed under Order 39, Rule 1 is an appealable order.
6. What are the remedies available to a party aggrieved by an order of ad interim injunction were considered in detail by a Full Bench of the Allahabad High Court in Zila Parishad v. B. R. Sharma, AIR 1970 All 376: (1970 All LJ 5). It was held that an aggrieved party has two remedies. (1) He can either get the ex parte injunction discharged or varied or set aside under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1 (r) or (2) straightway file an appeal under Order 43, Rule 1(r) against the order passed under Rules 1 and 2 of Order 39 C.P.C. It is observed that it is not unusual to provide for alternative remedies. An instance is pointed out that when an ex parte decree is passed against a person he has two remedies. He may either file an appeal against the ex parte decree or he can seek to get the ex parte decree set aside on an application presented to the same Court. The order granting ad interim injunction is therefore appealable and the appeal filed before the Court below is therefore maintainable.
7. The main contention raised in this revision is that the Court below has exercised a jurisdiction not vested in it by law in considering the petition for injunction and the error is liable to be corrected under Section 115 C.P.C. The contention is that the petition for temporary injunction can be heard only by the trial Court on the basis of the materials placed before it. It is only that Court which can consider a prima facie case, balance of convenience and irreparable injury and finally dispose of the petition for temporary injunction. The mere institution of the suit by itself will not entitle the plaintiff to get a relief whereas he has to satisfy the Court that there is a fair and substantial question to be tried. It is settled law that to make out a prima facie case for temporary injunction plaintiff need not establish his title whereas it is enough if it is shown that he has a fair question to be raised as to the existence of the right alleged. Apart from that the Court has also to consider the balance of convenience and irreparable injury. It is for the trial Court to consider all these matters on an application for temporary injunction on the basis of the materials produced by both parties. Specific provision has been made in Order 39 directing the Court to dispose of an application for injunction within 30 days from the date on which the injunction was granted. In case the Court is unable to do so, reasons for such inability are to be recorded, The aggrieved party is also given a right to move an application forgetting the order of injunction discharged or varioud or set aside. The combined effect of Rules 1, 2, 3A and 4 of Order 39 is that the trial Court has to make every endeavour to dispose of the injunction application without any delay. When once the petition has been finally disposed of the aggrieved party gets a right to file an appeal under Order 43, Rule 1 (r) of the Code. There is therefore sufficient indication in Order 39 itself to suggest that the appellate Court on an appeal from an order granting ad interim injunction is not competent to hear the appeal on merits which would in effect amount to a consideration of the petition on merits.
8. What then are the powers of the appellate Court in such a case ? The power is only to grant interim relief either in the nature of granting ad interim injunction, suspending an order of ad interim injunction or modify such an order for the purpose of preventing a possible injury or to preserve the subject matter of the suit for the time being. To enable the appellate Court to consider the petition for injunction on merits for the first time will be virtually conferring jurisdiction on the appellate Court which it otherwise does not have. There is indication in the notification issued by the High Court under Section 19(2) of the Civil Courts Act in exercise of the powers conferred under Section 19(1) of the Act that the District Judge has no power. That sub-section authorises the High Court to permit the civil courts under its control to adjourn from time to time for periods not exceeding in the aggregate sixty days in each year. During such adjournment, when judicial work cannot be transacted, High Court shall nominate a District Judge for each District in order to meet urgent situations. The nominated District Judge shall have the power to make provisional orders on all urgent matters and for such purpose, he is empowered to receive plaints, appeals, petitions and other matters. Except on matters that could ordinarily be presented in the District Court any order passed by the nominated District Judge could only be provisional and the order shall remain in force only until such matter has been heard and decided by the Court having jurisdiction. The District Judge who is nominated under Section 19(2) of the Civil Courts Act may be in a position to hear an appeal from an order to be passed by the Court having jurisdiction after the matter has been transferred to that Court. But the nominated District Judge is empowered only to pass provisional orders and not final orders. This Court in the decision in Viswambharan v. Damodaran Nair, 1988 (2) KLT 32 has held that an urgent provisional order to be passed by the nominated District Judge is a temporary order on an urgent matter and when once such an order is passed the nominated District Judge cannot go on passing orders on the merits which will have to be passed by the regular Courts. It has been made clear that the nominated District Judge can vacate the provisional order or pass such other orders as exigencies of the situation needs, but all such orders can only be provisional leaving the normal Court to pass regular orders on the merits. Anything beyond that is without jurisdiction and illegal because of the jurisdictional impairment on account of the circumspection to the powers. It was further held that even if both sides agree the nominated District Judge cannot exceed his powers under Section 19(2) because consent of parties will not invest him with the jurisdiction which is not having. The reason is that the District Judge though has power to deal with the matter as an appellate authority is not competent to hear and dispose of an original suit or petition. The same reasoning applies in the case of an appeal against an ad interim injunction since the authority to consider the petition on merits is the trial Court. The aggrieved party is not without a remedy since he has got a right of appeal under Order 43, Rule 1(r) of the Code. In any view of the matter the Court below has no jurisdiction to enquire into the injunction petition on merits. The Court has exercised jurisdiction not vested in it by law and the order for that reason is liable to be set aside.
9. Learned counsel for respondent would point out that the appellate Court also has powers to hear the petition and in support of that contention attention is drawn to the decision of the Travancore-Cochin High Court in Devasahayam Nadar Anthonimuthu Nadar v. Arumukham Nadar Oalayan Nadar, 1953 KLT 334 : (AIR 1953 Tra-Cochin 240). That decision is of no assistance to respondent since the question that arose was whether the order for ad interim injunction was appealable or not. Finding that it was appealable the matter was directed to be heard by the District Court and dispose of the same in accordance with law. Such a direction will not clote the District Court with any power to deal with the matter in case the Court has no power otherwise. District Court could have exercised its powers to grant any interim order or to modify the order already passed by the trial Court. The decision reported in AIR 1973 HP 90 Pritam Singh v. Charan Dass -- cited by the counsel is also of no assistance since that was a case of an original petition under Article 227 of the Constitution. It was only held that the High Court in exercise of its powers under Article 227 can suspend the interim order till decision of the suit. Even there what is granted is only an interim order and not a final order. No other authority has been brought to my notice to show that the District Court has power to decide the interim injunction petition on merits.
10. Learned counsel for respondent would then point out that it is within the powers of the District Court to withdraw the petition and hear the same. Section 24 C.P.C. enables the District Court to withdraw any suit or proceeding from any of the Subordinate Courts and to deal with the same or to transfer the same to any other Court having jurisdiction. But no proceeding was withdrawn by the District Court from the file of the Subordinate Court whereas the Court has purported to call for the records and proceeded to decide the petition on merits. The decision of the Supreme Court in Marthoma Mathew v. Mar Athanasius, 1980 KLT 1 : (AIR 1979 SC 1909) is therefore not applicable to the present case.
11. For the aforesaid reasons the revision petition is allowed and the impugned order is set aside. The Subordinate Judge's Court, Thrissur is directed to take back I.A. 354/92 in O.S. 149/92 to file and to proceed with that petition from the stage at which it was when the records were called for by the Court below. The documents produced by revision petitioner before this Court will be transmitted to the Subordinate Judge's Court for purpose of hearing the interlocutory application without delay. The Subordinate Judge is directed to expedite the hearing of the petition and dispose of the same as early as possible and at the utmost within a period of two weeks from date of receipt of this order. Send the copy of the order along with the documents produced in this revision forthwith.