Calcutta High Court
Jagjit Singh Khanna vs Dr. Rakhal Das Mullick And Anr. on 30 April, 1987
Equivalent citations: AIR1988CAL95, 92CWN190, AIR 1988 CALCUTTA 95, (1988) 1 CIVLJ 426 (1988) 92 CAL WN 190, (1988) 92 CAL WN 190
JUDGMENT Bhattacharjee, J.
1. The plaintiff, who is respondent 1 before us, filed an application under the provisions of Order 39, Civil P.C., praying for a temporary mandatory injunction against defendant 1, who is respondent 2 before us and a temporary prohibitory injunction against defendant 2, who is the appellant before us. The trial court issued notices to the defendants to show cause as to why such injunctions shall not be granted, but refused the prayer for ad interim injunction.
2. Within a week thereafter defendant 1 appeared and prayed for time to file his show cause. The plaintiff has then filed another application under the provisions of Section 94 of the Code renewing his prayer for ad interim injunction against defendant 1 and on consent of both the parties, the trial Court has allowed the application under Section 94 of the Code and has granted ad interim injunction "till the final disposal of the application under Order 39, Rules 1 and 2, C.P.C." and has stated in the impugned order that "the petition under Section 94, C.P.C., be thus disposed of".
3. It seems that the trial Court in refusing ad interim injunction under an application labelled as one under Order 39 of the Code and thereafter in granting ad interim injunction on an application purporting to be under S. 94 of the Code "till the final disposal of the application under Order 39, Rules 1 and 2, C.P.C.", proceeded under the impression that the Code clothes t he Courts with two sources of power togrant temporary injunction, one under Section 94 of the Code and the other under Order 39 of the Code. The impression is wholly erroneous as would appear from a hare perusal of the provisions of Section 94(c) of the Code whereunder the Court may grant a temporary injunction only "if it is so prescribed". The expression "prescribed" in Section 94 would obviously mean, as defined in Section 2(16) of the Code, "prescribed by Rules". The Rules which prescribe grant of temporary injunction are Rule 1 and Rule 2 of Order 39 and, therefore, a temporary injunction may be granted under Section 94(c) only if a case satisfying the requirements of Rules 1 and 2, Order 39 is made out. As already noted, not that the Court has two sources of power, one under Section 94(c) and another under Order 39 of the Code and may resort to one or the other as and when necessary, but that under the Code the Court grants temporary injunction only under one set of provisions, namely, Section 94(c) read with Order 39. Rules 1 and 2 of the Code. It is true that, as pointed out by the Supreme Court in Manohar Lal v. Seth Hiralal , a Court can grant temporary injunction in exercise of its inherent powers also, but there it does not grant it under any power conferred by the Code but under powers inhering in its very constitution which are saved by and under Section 151 of the Code. The words "a temporary injunction granted under the last preceding section" in Section 95 of the Code indicate that temporary injunction is granted under the provisions of Section 94, but the words "any injunction granted... under Rule 1 or Rule 2" in Rule 2A of Order 39 may give rise to the impression that a temporary injunction may be granted independently under the provisions of Order 39, Rules 1 and 2 also. But, as already indicated, under the Code a temporary injunction can be granted only under one set of provisions namely, under Section 94(c) read with Order 39, Rules 1 and 2.
4. Both the applications for ad interim/temporary injunctions must, therefore, be treated as applications under Section 94(c) read with Order 39 of the Code, even though the first one was labelled as one under Order 39 only and the second one as one under Section 94 only. The net question, therefore, is that if a Court has refused ad interim injunction arid has only issued not ice to show cause on an application for temporary injunction, can it on a subsequent application, grant ad interim injunction till the disposal of the earlier application for temporary injunction. A temporary injunction may as it very often does, consist of two stages, one granted without finally disposing of the application for injunction to operate immediately till the disposal of the said application and the other granted while finally disposing of the main application to enure generally till the disposal of the suit and while the former is generally classed as ad interim injunction, the latter is generally called temporary injunction. Neither on principle nor on authority we find any bar to the Courts granting ad interim injunction till the disposal of the application for the temporary injunction, if subsequent developments or altered circumstances warrant such grant, even though it has refused to grant the same earlier on the materials then on record. If, however, the materials on record stand as they stood when the ad interim injunction was refused earlier, a grant of ad interim injunction on such materials may not be permissible as that might amount to impermissible review of the earlier order.
5. The second application for ad interim injunction, labelled as one under Section 94 of the Code, has been avowedly made, as stated in Para 6 thereof, on the ground of "further developments and "altered circumstances" and those developments and circumstances have been stated in details in Para 4 of the application. The materials on record did not, therefore, stand where they stood when the ad interim injunction was refused on the earlier application. In granting the ad interim injunction on such further developments and altered circumstances, the learned Judge does not appear to have committed any error to justify any interference, particularly at this stage, when the main application for injunction is still awaiting his final adjudication. The net position, therefore, is that on the two applications for interlocutory injunctions taken together, one labelled as under Order 39 and the other as under Section 94, the trial Court has issued notice to show cause why the application for temporary injunction shall not be granted and has also granted ad interim injunction till the disposal of that application. It would he now for the defendants to file show cause and for the learned trial Judge to decide as to whether this is a fit case for the grant of temporary injunction as prayed for and the learned Judge must do so as expeditiously as possible, without being in any way influenced by the fact that we are dismissing this appeal against the order of ad interim injunction and also by the observations, if any, made by us as to the merits of the case relating to temporary injunction.
6. The appeal is accordingly dismissed, but in the circumstances of the case we make no order as to costs.
Nayar, J.
1. 7. I agree.