Gauhati High Court
Shri Yogesh Shah And Ors. vs Smt. Dharmeswari Devi Alias ... on 20 December, 2005
Equivalent citations: AIR2006GAU87, AIR 2006 GAUHATI 87, 2006 (2) AJHAR (NOC) 687 (GAU), 2006 A I H C (NOC) 228 (GAU), (2009) 3 GAU LR 665, (2006) 1 GAU LT 623
Author: I.A. Ansari
Bench: I.A. Ansari
ORDER I.A. Ansari, J.
1. The present writ, petitioners instituted, as plaintiffs, Title Suit No. 91 / 97, in the Court of the Civil Judge (Senior Division), No. 2, Kamrup, Guwahati, seeking declaration of their rights, title and interest over the suit property and recovery of possession thereof by evicting the defendant-respondent herein from the suit property. By the judgment and order, dated 24-12-2003, the said suit was decreed in favour of the plaintiffs-petitioners. The decree, so granted, came to be challenged by the defendant-respondent herein, as appellant, in Title Appeal No. 1/2004. When the appeal came up for hearing on 27-9-2004, the counsel for the defendant-respondent was found absent. The appeal was, therefore, dismissed for default on 27-9-94.
2. A petition seeking re-admission of the appeal was made by the defendant respondent herein on 12-4-2004. Pending disposal of the petition for re-admission of the appeal, which had been filed by the defendant, the decree, in question, was executed on 21 -5-2005, Though the defendant filed a petition for stay of the execution of the decree pending re-admission of the appeal, the Court declined to stay the decree on the ground that the decree already stood executed on 21-5-2005. The defendant-respondent herein, then, filed a petition, on 1-7-2004, under Section 151 read with Section 94 of the Civil Procedure Code (in short, 'the Code') praying, inter alia, for an order of injunction restraining the decree-holders from raising any structure on the suit land and also restraining them from alienating the suit land in favour of any one till disposal of the appeal. This petition gave rise to Misc. Case No. 237/2004. The plaintiffs filed their objection against the petition for injunction so made by the defendant. The learned Appellate Court, then, upon hearing the learned Counsel for the parties, passed an order, on 25-8-2004, granting injunction, as had been sought for by the defendant, till disposal of the appeal. This order was challenged by the plaintiff by way of a writ petition in this Court, which gave rise to WP(C) No. 7825/2004. By order, dated 16-10-2004, the said writ petition was disposed of on being withdrawn by the petitioner with liberty to approach the Court with appropriate application. This liberty has resulted into filing of the present writ petition by the plaintiffs.
3. I have heard M. R. L. Yadav, learned Counsel for the plaintiffs-petitioners, and Mr. G. Mishra, learned Counsel, appearing on behalf of the defendant-respondent.
4. Challenging the impugned order, dated 25 8-2004, aforementioned. Mr. Yadav points out that in the present case, the impugned order has been passed by the learned appellate Court by invoking its inherent powers under Section 151 of the Code. In the present case, the exercise of power to grant injunction under Section 151 of the Code is, according to Mr. Yadav, contrary to the scheme of the Code and the settled position of law laid down in that behalf.
5. Explaining his above submissions. Mr. Yadav points out that the provisions for granting temporary injunction are embodied under Order XXXIX Rules 1 and 2 and if the defendant-respondent was not entitled to an order of injunction under Order XXXIX Rules 1 and 2, the recourse could not have been taken to Section 151 of the Code for the purpose of granting temporary injunction, for, contends Mr. Yadav, the inherent powers could have been exercised, had there been no provision made in the Code for granting of temporary injunction. Since the provisions for granting of temporary injunction have been made, reiterates Mr. Yadav, in Order XXXIX Rules 1 and 2, it is impermissible to take recourse to Section 151 of the Code for the purpose of granting temporary injunction. Support for this submission is sought to be derived by Mr. Yadav from Ramkarandas Radhavallabh v. Bhagawandas Dwarkadas AIR 1985 SC 1144, Vareed Jacob v. Sosamma Geevarghese , Sopan Sukhdeo Sable v. Assistant Charity Commissioner and Abdul Rahim B. Attar v. Atul Ambalal Barot .
6. It is also submitted by Mr. Yadav that had even such inherent power to grant temporary injunction been available to the Court, then also, such a power could not have been exercised in the case at hand, for, in the context of the facts and circumstances of the present case, no injunction, according to Mr. Yadav, could have been granted against the plaintiffs restraining them from alienating the suit property or from raising construction thereon inasmuch as the plaintiffs have, points out Mr. Yadav, come into possession of the suit property on the strength of a validly executed decree. It is also contended by Mr. Yadav that against the true owner of a property, no such injunction can be granted. In support of this submission, Mr. Yadav relies on Sopan Sukhdeo Sable v. Assistant Charity Commissioner and Abdul Rahim B. Attar v. Atul Ambalal Barot .
7. Controverting the above submissions made on behalf of the plaintiff-petitioners herein, Mr. Mishra, learned Counsel, placing reliance on Shri Bindeshwar Narayan Singh v. The Managing Committee, Shri Sundarmal Hindi High School reported in (1981) 1 GLR 231 : AIR 1982 Gau 69, submits that in an appropriate case, an order for injunction can be passed under Section 151 of the Code and in the case at hand, contends Mr. Mishra, the peculiarity of the attending circumstances justified granting of injunction and, hence, the impugned order, pleads Mr. Mishra, needs no interference.
8. In the backdrop of the rival submissions made before me on behalf of the parties, the principal question, which falls for determination in the present writ petition, is this : whether, pending an application made under Order XLI Rule 1 of the Code seeking re-admission of appeal, which is loosely described as an application for restoration of appeal, a temporary injunction can be granted and, if so, under what provisions of law and under what circumstances, such a power can be exercised?
9. Since, in the light of Mr. Yadav's contention, it is Order XXXIX Rules 1 and 2 of the Code, which is largely believed to embody the civil Court's power to grant temporary injunction, let me, for the sake of effective resolution of the controversy raised in the present writ petition, quote, hereinbelow, Order XXXIX Rules 1 and 2, which read as follows:
ORDER XXXIX TEMPORARY INJUNCTIONS AND INTER-
LOCUTORY ORDERS
1. Cases in which temporary injunction may be granted.- Where in any suit it is proved by affidavit or otherwise-
(a) that any property in dispute in a suit is in danger of being wasted, 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 defrauding his creditors,
(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause in-Jury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation 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 restraining the defendant from committing a breach of contract or other injury 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 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 duration of the injunction, keeping an account, giving security, or otherwise as the Court thinks fit.
10. A careful reading of Order XXXIX Rules 1 and 2, as is correctly pointed out by Mr. Yadav, shows that a temporary injunction may be granted only when there is a suit pending. Though there is no specific provision extending application of Order XXXIX Rules 1 and 2 to the civil appeals, 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 powers on the appellate Court as are available to the Court of original jurisdiction that the provisions of Order XXXIX Rules 1 and 2, which embody the provisions for grant of temporary injunction, are really applied to the appeals too, meaning thereby that pending disposal of not only the suit, but also the appeal, temporary injunction may, in terms of Order XXXIX Rules 1 and 2, be granted. We are, now, faced with a situation, where an appeal stood dismissed for default and what was lying before the Court was really an application for re-admission of the dismissed appeal under Order XLI Rule 19 of the Code. Could the provisions of Order XXXIX Rules 1 and 2 be applied to such an application seeking restoration of appeal? The answer to the question, so raised, is not very far to seek.
11. Since the provisions of Order XXXIX 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 readmission of appeal under Order XLI Rule 19 is not an extension of the suit or the appeal, the provisions for granting of temporary injunction, contained in Order XXXIX Rules 1 and 2, cannot be resorted to pending an application seeking restoration of appeal. In other words, in order to make Order XXXIX Rules 1 and 2 applicable, there has to be a suit or appeal pending and in view of the fact that when an application for readmission of appeal is heard, there is no suit or appeal pending, question of taking recourse to Order XXXIX Rules 1 and 2 does not arise at all.
12. The only way in which Order XXXIX Rules 1 and 2 can be made applicable to an application for readmission of appeal, made under Order XLI Rule 19, is if such an application can be treated to be a 'proceeding' within the meaning of Section 141 of the Code and if the word 'proceeding' can be read in place of the word 'suit' in Order XXXIX Rule 1. The question, therefore, which, now, arises for consideration is as to what a 'proceeding', within the meaning of Section 141, is?
13. 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.)
14. The question as to what the word 'proceeding', occurring in Section 141, conveys is not easy to answer, for, Section 141 has a long and, interestingly enough, a tumultuous past. In this regard, worth noticing it is that the Code has, as a whole, undergone several amendments since its introduction in the year 1859, the principal amendments being in 1861, 1877, 1882 and 1908.
15. In the Code of 1859, there was no provision as the one, which we have, under Section 141, laying down the procedure for trial of miscellaneous proceedings. It was, for the first time, in the Code of 1861 that such a provision was introduced. The said provision came to be retained in Section 647 of the Code of 1877 and the Code of 1882 too. Section 647 of the Code of 1877 and 1882 read as follows:
The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction other than suits and appeals.
16. To put an end to the difference of views among the High Courts as to whether a proceeding in execution is within Section 647, an Explanation was added to the Section 647 by the CPC (Amendment) Act of 1892, which reads, "Explanation - This section does not apply to applications for execution of decrees which are proceedings in suits."
17. Laying down as to what the term 'proceeding', appearing in Section 647, conveyed, the Privy Council, in Thakur Prasad v. Fakirullah reported in ILR (1895) 17 All 106 (PC), held and observed, "Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as the proceedings in probate, guardianships and so forth and do not include executions."
18. Though Thakur Prasad (supra) settled the meaning of the word "proceedings" in Section 647 (presently, Section 141) by laying down that proceedings "include original matters in the nature of suits", it gave rise to a fresh spate of conflicting views from the various High Courts on the meaning of the words "original matters" occurring in Thakur Prasad (supra). For instance, while there was one set of decisions taking the view that an application under Order IX Rules 9 and 13, same as applications made under Order XXI Rules 89, 90, 91, 97 and 100, are "original matters", the other set of views was that these are not original proceedings, for, the applications made under Order IX Rules 9 and 13 trace their origin to suits and, similarly, the applications made under Order XXI Rules 89, 90, 91, 99 and 100 owe their birth to execution proceedings. The reason for the controversy, which so erupted, was that the word "original" was capable of, at least, two different shades of meanings. In its primary sense, the "original matters" would mean those matters, which are capable of coming into existence on its own and not as derivative to some other suit or proceeding; for example, a proceeding for probate or guardianship comes into existence on its own and these proceedings do not owe their birth to any other proceeding. In contrast, a proceeding under Order IX Rules 9 and/or 13, same as proceedings under Order XXI Rules 89, 90, 91, 97 and/or 100, derive their birth from suits and execution proceedings respectively. These proceedings are, strictly speaking, not original in nature; rather, these proceedings are derivatives or off-shoots of either suits or execution proceedings. However, though derivatives or off-shoots, the proceedings under Order IX Rules 9 and 13 are nevertheless independent of the suit and take birth on dismissal of the suit or on passing of the ex parte decree. Similarly, the proceedings under Order XXI Rules 89, 90, 91, 97 and 100 are original proceedings in a limited sense, for, these proceedings too are not really different stages of any execution proceeding, but are Independent thereof. To put it differently, since these proceedings are not different stages of the suits or of the execution proceedings to which they owe their birth and are, in a limited sense, independent of the suits or the execution proceedings to which they owe their birth inasmuch as none of these proceedings rests on the pendency of the suit or the execution proceeding, these proceedings can be regarded as 'original matters', though in a limited sense. Such conflicting views from the High Courts, therefore, rested on the interpretation of the Privy Council's decision in Thakur Prasad (supra) revolving around the meaning of the word "original" used therein.
19. When the controversy as to what can be considered as 'original matters' for the purpose of Section 141 was thus on, came the decision of a three Judge Bench in Dokku Bhushayya v. Katragadda Ramakrishnayya reported In . In this case, one Bapiah instituted a suit against Dokku Bhushayya, then a minor, his father and another person on a promissory note executed by the two last mentioned persons. Dokku Bhushayya was represented in the suit by his maternal grandfather as his guardian ad litem. A decree was passed in the suit. The decree-holder put the decree in execution and obtained an order for the sale of certain properties in which Dokku Bhushayya's Interest was involved. The properties were sold in due course in favour of a clerk of the decree-holder. Thereafter, Dokku Bhushayya's guardian ad litem made an application under Order XXI Rule 90 of the Code of Civil Procedure for setting aside the sale. Later, however, the guardian ad litem came to a settlement with the decree-holder and the auction-purchaser. According to the terms of settlement, the guardian ad litem was to give up his contention regarding the invalidity of the sale and withdraw the petition made for setting aside of the sale and also give up possession of the properties sold to the auction-purchaser and in return thereof, the decree-holder and the auction purchaser agreed to give up their claim for costs of the petition. In pursuance of this agreement, the petition was withdrawn and dismissed by order made on August 12, 1932. After attaining majority, Dokku Bhushayya filed a suit, in the year 1944, to set aside the order of August 12, 1932, and for a re-hearing of the petition, which was dismissed by the order passed on that date. The suit was decreed by the trial Court; but on appeal, the decision of the trial Court was reversed by the High Court at Madras and the suit was ordered to be dismissed. It was in these circumstances that Dokku Bhushayya came in appeal before the Supreme Court. The question, which, thus, came up before the Supreme Court was as to whether the order of August 12, 1932, was voidable under order XXXII Rule 7 of the Code of Civil Procedure, 1908, at the instance of the appellant? Order XXXII Rule 7, it may be noted, forbids the guardian from entering into any agreement or compromise on behalf of a minor with reference to the suit without the leave of the Court and provides that any such agreement or compromise entered into without the leave of the Court shall be voidable against all parties other than minor.
20. Referring to, and relying upon, Thakur Prasad, (1895) 17 ILR 106 (supra), the Supreme Court in Dokku Bhushayya, AIR 1962 SC 1886 (Supra) observed and held, "This view has ever since been followed. We have already held that the application by the judgment-debtor to set aside the sale is a proceeding in execution and, therefore, Section 141 of the Code will not apply for two reasons, namely, (1) as execution proceedings were continuation of suit within the meaning of Order XXXII, Rule 7, of the Code, and as the Code provided specifically for suits, Section 141 could not be invoked: and (2) as we have held, an application by a judgment-debtor to set aside a sale is a proceeding in execution and therefore Section 141, which applies only to original proceedings, does not apply to such proceedings."
21. What, in substance, the Apex Court held, in Dokku Bhushayya (supra), is that to be a proceeding, within the meaning of Section 141, the proceeding must not be a stage and/or continuation of another proceeding or suit. Since an execution proceeding, (same as an appeal), is merely a continuation or extension of the suit, execution proceedings cannot be regarded as proceedings within the meaning of Section 141. To put it differently, a stage In the suit, such as, an execution proceeding, or a proceeding, which rests on the pendency of the suit or the appeal, such as, an application for temporary injunction, not being an original and independent proceeding, is not a 'proceeding' within the meaning of Section 141.
22. I may briefly pause here to point out that since an application for injunction made under Order XXXIX Rules 1 and 2 lies only during the pendency of the suit or the appeal, it logically follows that though an application for temporary injunction made under Order XXXIX Rules 1 and 2 are registered as miscellaneous proceedings, such applications for temporary injunction do not really give rise to proceedings within the meaning of Section 141, for, application for temporary Injunction can neither be treated as a proceeding in the nature of an original suit nor can it be treated as a proceeding, which is not dependent on the existence of the suit, or the appeal. No wonder, therefore, that in Shiv Shakti Coop. Housing v. Swaraj Developers while summarizing the effect of the recent amendments to the Code, the Apex Court observed, "32. A plain reading of Section 115 as it stands makes It clear that the stress is on the question whether the order in favour of the parry applying for revision would have given finality to suit or other proceeding. If the answer is "yes" then the revision is maintainable. But on the contrary, if the answer is "no" then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject-matter of revision under Section 115."
23. The decision rendered in Shiv Shakti Coop. Housing, AIR 2003 SC 2434 (supra) makes it abundantly clear that granting or not granting of injunction does not finally dispose of the suit or the proceeding within the meaning of Section 141. Had an injunction application made under Order XXIX Rules 1 and 2 been a proceeding within the meaning of Section 141, granting of temporary injunction and/or refusal to grant temporary injunction could have been taken to have disposed of the proceeding within the meaning of Section 141 and revision against such an order would have, then, been maintainable. However, since an application for temporary injunction, though registered as a miscellaneous proceeding, does not really give rise to a proceeding, which is either original or not dependent on the survival of the suit or the appeal, it cannot be regarded and is, in fact, not regarded as a proceeding within the meaning of Section 141. Thus, granting of temporary injunction or refusing to grant temporary injunction and/or affirming temporary injunction by an appellate Court does not end the proceeding; hence, such a temporary order of injunction, in the light of the Shiv Shakti Coop. Housing, AIR 2003 SC 2434 (supra), is not revisable.
24. What may, now, be noted is that in Munshi Ram v. Bhanwari Lal , a two Judge Bench of the Supreme Court held that it was competent for the Court before which an award by an arbitrator is filed to pass a decree in terms of a compromise reached by the parties to the arbitration award, though the compromise entered into by the parties may be at variance with the arbitral award. Referring to the decision in Munshi Ram (supra), a two Judge Bench of the Supreme Court observed and held, in Ram Chandra Agarwal v. State of Uttar Pradesh thus, "Similarly, recently this Court has held in Munshi Ram v. Banwari Lal that under Section 41 of the Arbitration Act and also under Section 141, CPC, it was competent to the Court before which an award made by an arbitration tribunal is filed for passing a decree in terms thereof to permit parties to compromise their dispute under Order XXIII, Rule 3, CPC. Though there is no discussion, this Court has acted upon the view that the expression "Civil Proceeding" in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian etc. but it applies also to a proceeding which is not an original proceeding.
25. It may be carefully noted that the decision in Ram Chandra Agarwal AIR 1966 SC 1888 (supra) was rendered without, of course, referring to Thakur Prasad (1895) ILR 17 All 106) (supra) and Dokku Bhushayya AIR 1962 SC 1886 (supra). Be that as it may, what the Supreme Court held in Ram Chandra Agarwal (supra) was that a proceeding, in order to fall within the meaning of the word 'proceeding' in Section 141, need not necessarily be an original proceeding.
26. What, however, needs to be borne in mind is that though in the light of the decision in Ram Chandra Agarwal AIR 1966 SC 1888 (supra), a proceeding, for the purpose of being a proceeding under Section 141, may not necessarily be an original proceeding, such as, an application for probate, yet a proceeding, in order to be a proceeding within the meaning of Section 141, has to be nevertheless a proceeding, which is not a stage of an already pending proceeding and is also not dependent on the existence or survival of another proceeding. A proceeding under Order IX of the Code falls within the meaning of the word 'proceeding' in this limited sense. No wonder, therefore, that the Explanation to Section 141 specifically' makes a proceeding under Order IX of the Code a miscellaneous proceeding within the meaning of Section 141. These proceedings take birth from dismissal of the suit or from passing of an ex parte decree in the suit. Though born out of the suits, these proceedings are not stages of the suit, such as, execution proceeding.
27. Can, therefore, the decision in Ram Chandra Agarwal AIR 1966 SC 1888 (supra) be read to mean that every proceeding, during the progress of a suit or an appeal, such as, the proceeding arising out of an application for temporary injunction, be treated as a 'proceeding' within the meaning of Section 141? Would such a reading of the decision in Ram Chandra Agarwal (supra) not be an incorrect proposition of law? While answering this crucial question, what needs to be borne in mind is that the decision of the five Judge Bench in Thakur Prasad (supra) has not been completely overruled and that the decision in Dokku Bhushayya (supra) has been rendered by a Bench of three Judges; hence, the decision of two Judge Bench rendered in Ram Chandra Agarwal (supra), cannot be read to run wholly contrary to the law laid down in Thakur Prasad (supra) and Dokku Bhushayya AIR 1962 SC 1886 (supra). The decision in Ram Chandra Agarwal (supra), therefore, needs to be read in its correct perspective. When so read, it becomes abundantly clear, as already Indicated herein-above, that a proceeding under Section 141, though may not be original, has to be, nevertheless, a proceeding, which is not really an extension of the suit or the appeal and though an offshoot from either a suit or an appeal, it has to be independent of the existence of the suit or the appeal in the sense that for its existence and survival, such a proceeding must not depend on the survival of the suit or the appeal. Such a proceeding may, therefore, come into existence, when the suit or the appeal is not pending for disposal. Viewed thus, a proceeding under Order IX, Rule 4 for restoration of the suit is a proceeding within the meaning of Section 141, for, a proceeding under Order IX, Rule 4 is, strictly speaking, not an extension of the suit and though it may be regarded as an offshoot from a suit, it comes into existence, when the suit is not pending and it is capable of standing on its own. Similarly, at application made under Order IX, Rule 13 seeking to get set aside an ex parte decree is a proceeding, within the meaning of the expression 'proceeding', occurring in Section 141. Considered in this light, a proceeding, which starts with the filing of an application for restoration or readmission of appeal under Order XLI, Rule 19, is also a proceeding, for, it is not really an extension of the suit or appeal, and though an offshoot therefrom, it is an Independent proceeding capable of standing on its own. In short, thus, an application under Order XLI. Rule 19 gives rise to a 'proceeding' within the meaning of Section 141.
28. 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 readmission of appeal, whether the provisions of Order XXXIX, Rules 1 and 2 are applicable ? A search for an answer to this crucial question brings me back to the provisions of Section 141.
29. 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 Vareed Jacob v. Sosamma Geevarghese 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."
30. 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 Mal , that by virtue of Section 141 of the Code, only the procedure provided for suits in the Code and not the substantive right 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.
31. The question, therefore, which stares at us is this : whether it is Order XXXIX, 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 XXXIX, 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:
Section 94. Supplemental proceedings. In order to prevent the ends of Justice from being defeated the Court may, if it is so prescribed -
(a) and (b)...
(c) grant of temporary injunction and in case of disobedience commit the person guilty thereof to the prison and order that his property be attached and sold.
(d) ...
32. 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. However, under what circumstances and in what manner, this power can be exercised is actually given in Order XXXIX, Rules 1 and 2.
33. Since it is merely procedural part of I the Code, which applies to proceeding within the meaning of Section 141, such as, a proceeding for readmission of appeal under Order XLI, Rule 19, the substantive part of the Code, such as, Section 94(C), would not be applicable to the proceedings of a nature. In short, to a proceeding as the one that we have at hand, Section 94(c) would not be applicable.
34. 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 XXXIX, 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 the 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 XXXIX Rules 1 and 2, for, legislature, while codifying the procedure, may not have envisaged 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 every Court, exercising civil jurisdiction, has been given inherent powers under Section 151 of the Code.
35. 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.
36. According to Mr. Yadav, as already indicated hereinabove, no Court can grant temporary injunction except when the conditions prescribed under Order XXXIX, Rules 1 and 2 are satisfied. Since Order XXXIX can be resorted to during the pendency of the suit or the appeal, it is contended by Mr. Yadav that with dismissal of the appeal, no proceeding remains pending and, hence, Order XXXIX, Rules 1 and 2 cannot be resorted to and, consequently, in a proceeding arising out of an application for restoration of appeal, no injunction, under any circumstance, can be granted by taking resort to Order XXXIX. Is this submission sustainable ? The answer to this monumental question is not very far to seek, for, the concern, which Mr. Yadav 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 Manohar Lal Chopra v. Ral 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 tansgressing 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 an departure therefrom is not permissible. As observed in LR 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.
37. 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 XXIX. Rules 1 and 2 and if Order XXXIX, 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.
38. Disagreeing with the lone dissenting voice of Shah, J. the majority, in Manohar Lal AIR 1962 SC 527 (supra), speaking through R. Dayal, J. observed and held thus, "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 XXXIX....
On the first question it is argued for the appellant that the provisions of 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 'pre-scribed by rules' and that Rules 1 and 2 of Order XXXIX 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 XXXIX of the Code : Varadacharlu v. Narmisha 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 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 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 Cal 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 jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX, 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 XXXIX or by any rules made under the Code. It is well-settled 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 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 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 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 XXXIX, 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".
39. 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 XXXIX, for, there is no such expression in Section 94, which completely prohibits the issue of temporary injunction in the circumstances not covered by Order XXXIX and rules framed thereunder or in the circumstances in which Order XXXIX and rules framed thereunder cannot be resorted to.
40. 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, C.J. in Vareed Jacob (supra) held and observed, "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, IPC 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 take away the right 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 & Sons Sugar Mills, Pvt. Ltd. v. Kanhayalal Bharagava , it has been held 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 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, Rule 1 and Rule 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."
41. From what has been held in Vareed Jacob AIR 2004 SC 3992 (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 jurisdiction, 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."
42. 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, which falls within the meaning of the word proceeding under Section 141, a situation warranting grant of temporary injunction, 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.
43. This does not mean, 1 must hasten to add, 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 (supra) 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 Lal (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 Lal (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."
44. Moreover, the decision in Manohar Lal (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 v. Assistant Charity Commissioner , reflects. It is precisely for the 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.
45. What crystallizes 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 readmission of appeal made under Order XLI 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 XXXIX, Rules 1 and 2. However, if in a 'proceeding', conceived under Section 141, 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.
46. Bearing in mind the above significant features of the law under discussion, when I revert to the case at hand, what attracts the eyes, most prominently, is that the present one is a case, where an appeal was dismissed not on merit, but on default of the counsel. In execution of the decree, the decree-holder has already taken over possession of the suit property. In such a situation, the judgment-debtor, whose appeal stood dismissed for default, has applied for readmission of the appeal. If the plaintiff is allowed to alienate the property, the property may, during the pendency of the application for readmission of the appeal, change many hands leading to several litigations and multiplicity of proceedings. Similarly, if construction is allowed to be carried out on the suit property, various kinds of rights and interest may be created causing more complications and giving rise to multifarious proceedings. In such a situation, if the Court readmits the appeal, the ground realities may change beyond repair. Furthermore, if the appeal is readmitted and allowed, the defendant-respondent herein shall be entitled to restoration of the suit property under Section 144 of the Code. If the parties are not directed by appropriate order Of temporary injunction to maintain status quo as on the date when the appeal was dismissed for default, the purpose of preferring of the appeal may get wholly frustrated and defeated. Imperative it is, therefore, in such a situation, that the Court directs the plaintiff to restrain himself from making anFy changes on the suit property by way of raising construction thereon or by creating any right by renting out the property or by creating title thereto by alienating the property. In order to prevent the ends of justice from being defeated, the grant of temporary injunction is, in such a case, indispensable. If in such a situation, inherent power is not exercised, there will be no meaning vesting the Courts of civil jurisdiction with such inherent powers as Section 151 confers. Considered thus, learned Court below ought to have granted temporary injunction pending disposal of the application for readmission of appeal prohibiting and restraining the plaintiffs from raising construction on the suit property changing features thereof and/or alienating the same.
47. The fall out of the above discussion is that the learned Court below committed no wrong in granting temporary injunction, but it exceeded the limits of its jurisdiction in granting temporary injunction until disposal of the appeal. To this extent, the grievances expressed, on behalf of the plaintiff-respondent herein, are genuine and justified.
48. Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that until disposal of the application for readmission of the appeal aforementioned, the plaintiff petitioners herein shall not raise any construction on the suit property or change the features thereof or alienate the same and/or part with the possession thereof. If the appeal is readmitted, the Court shall be at liberty to pass necessary order(s) for grant of temporary injunction if appropriate application is made in this regard and the circumstances for granting of such injunction arc still available.
49. With the above modifications in the impugned order, dated 25 8 2004, this writ petition shall stand disposed of.
50. No order as to costs.