Karnataka High Court
Madiwalappa Shivappa Badiger vs Sri Sukshetra Sri Somanathmath ... on 7 August, 1992
Equivalent citations: ILR1992KAR2644, 1992(3)KARLJ563
ORDER Vasanthakumar, J.
1. This Civil Revision Petition is directed against the order dated 2-4-1992 passed by the Court of the Munsiff, Basawana Bhagewadi, on Interlocutory application No. 1 filed by the plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
2. Few facts to briefly state are:
The plaintiffs filed original suit against the defendants seeking the following reliefs:
"To declare that the plaintiffs are the absolute owners in exclusive possession, use and enjoyment of the suit property of an area of 14 guntas, covered by the Somanatha Samadhi Katta of an area of 10 guntas and samadhi of Shivappa Muthya to an area of 4 guntas in R.S.No. 128/1 (old RS. No. 80) inclusive of the Samadhi Kattas of their other ancestors; or, Alternatively, to declare that the plaintiffs are the owners in exclusive possession, use and enjoyment of the suit property by means of perfection of their title for more than 12 years with the knowledge of the defendants, by means of adverse possession of the suit property; and To declare that the plaintiffs have a right to worship being the legal heirs of the ancestors of whose Samadhi gaddige they are holding the honour and privileges as per their family customs and faith; of Somanatha Swamy and Shivappa Muthya Samadhi Kshethra, To declare that the suit property and the Samadhis like temples of Shivappa Muthya and Somanatha situated in the Sukshethra of 14 guntas of R.S.No. 128/1 including the minor Samadhis of Hanumappa Muthya, of Smt.Yamanawwa, of Shivappa, Irappa and REVAPPA being the ancestoral mortal Samadhis, are of private property and private temples and not the public endowment;
To restrain the defendants permanently from interfering with the peaceful possession, use and enjoyment of the suit property and there from disturbing plaintiffs right to worship of their ancestors Samadhi Gadduge-temples of Shivappa Muthya and Somanatha and others;
To award compensatory cost;
To grant any other relief as deemes fit, To grant permission to amend the plaint as and when necessary."
3. Along with the suit, the plaintiffs filed interlocutory application under Order 39 Rules 1 and 2 of C.P.C, requesting the Court to grant temporary injunction against the defendants seeking the following reliefs:
"Be pleased to issue ad-interim temporary injunction against the respondents 1 to 7, 9 to 12, 14 and 15 restraining them, their agents and henchmen from interfering with the petitioners for their peaceful enjoyment of the property i.e. 14 guntas of Gaddige land described in the schedule below and performance of wordship etc. pending disposal of this civil revision petition in the interest of justice and equity,"
Relevant portion in the order sheet of date 2-4-92 reads:
"I.A.No. 1 Application under Order 39 Rules 1 and 2 of C.P.C. is filed by plaintiffs Advocate - along with the affidavit of plaintiff No. 7 and witnesses and prayed to issue of T.I. against the defendants their agents, their assignees and servants as prayed for in I.A.I. Heard Register a suit. Issue Emergent notice on I.A.1 and SS to defendants by 10/4."
The plaintiffs being dissatisfied with the order of the Court in issuance of emergent notices on I.A.No. 1 have preferred this Civil Revision Petition assailing the legality of the order of the trial Court on I.A.No. 1. The granting of a temporary injunction under the powers conferred by Order 39 Rules 1 and 2 is a matter of judicial discretion. The power given to the Court under Order 39 Rules 1 and 2 of C.P.C. to decide matters by affidavits is unfettered and not subjected to the provisions of Order 19 Rules 1 and 2 of C.P.C.
4. In the matter of granting temporary injunctions, it is the duty of the Court to take into consideration the affidavits and the relevant documents before it records a finding. To entitle a plaintiff to an interlocutory injunction the Court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a probability that the plaintiff is entitled to relief. The real point upon an application for a temporary injunction is not on how the question ought to be decided at the hearing of the case but whether there is a substantial question to be investigated and whether matters should not be preserved in "status quo" until that question can be finally disposed of.
5. A temporary injunction or interim injunction on the other hand may be granted on an interlocutory application at any stage of a suit. The interim injunction is called temporary for it endures only until the suit is disposed of or until further orders of the Court. By amendment Act of 1978 Clause (c) has been added to this rule and the last para of the rule has been consequently amended to meet with the situation where defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in the dispute in the suit.
6. Short and interesting question that arises for consideration in the instant case is whether the order of the Court in exercise of its jurisdiction under Order 39 Rule 3 of C.P.C., wherein issuing of notices to the opposite parties before granting any temporary injunctive relief could be construed as an order coming within the purview of Clauses (a) (b) and (c) of Sub-section (1) of Section 115 of C.P.C. and if so whether it is open for this Court to interfere with such orders under the proviso to Sub-section (1) of Section 115 of C.P.C.
7. The petitioners Counsel invites the ratio decidendi of the Cases in the matter of HAMUMAGA v. ANJANAPPA and in the matter of MIDCHE LINGE GOWDA v. CHANNAMMA. in support of his contention that the impugned order as coming under the purview of Clauses (b) and (c) of Sub-section (1) of Order 39 C.P.C. In the above cases, the Court had no occasion to decide the specific contentions as raised in the instant case.
8. In VIJAYA BANK E.H.C.S.Ltd. v. C. SRINIVASA RAJU, this Court in detail has discussed regarding conditions or restrictions imposed on the power of Revision, exercisable under Section 115 of C.P.C. by the High Court. Justice Swami speaking for the Bench has observed at paras-13 and 14 thus:
The conditions or the restrictions imposed on the power of revision exercisabie under Section 115 of the C.P.C., by a High Court can be stated thus:
1) No revision lies to High Court against a decree or order passed by a subordinate Court whether it decides the whole or part of the case, if an appeal lies against such decree or order either to High Court or to any Court subordinate to High Court.
2) A revisional power can be exercised against any decree or order passed by a Court subordinate to High Court if such a decree or order is not appealable and such decree or order is passed by a Court subordinate to High Court and in passing such order or decree,
a) it has exercised the jurisdiction not vested in it by law; or
b) has failed to exercise a jurisdiction vested in it by law; or
c) has acted in exercise of its jurisdiction illegally or with material irregularity,
3) Any order made by a Court subordinate to High Court including an order deciding an issue in the course of a suit or other proceeding, cannot be revised unless such an order or decision satisfies any one of the following further two conditions:
i) If such an order had been made in favour of the revision petitioner the suit or other proceedings would have been finally disposed of; or
ii) if such an order is allowed to stand, it would likely to occasion a failure of justice or cause an irreparable injury to the party against whom it is made.
Thus the revisional jurisdiction can be exercised against an order or decree passed by a Court subordinate to High Court, whether it be of interlocutory nature or has finally decided the suit or proceeding whether in part or in its entirety, provided further that it satisfies the conditions referred to above, as the case may be, we shall not be understood as laying down the proposition that every interlocutory order passed in a suit or proceeding is revisable or a Revision Petition can be maintained. This aspect will be considered a little later. Whether an order passed by a subordinate Court amounts to a 'case decided' or not had been the subject matter of discussion by the various High Courts and it led to several conflicting decisions also. It also added to prolongation of proceeding before the Court below. Therefore, the Law Commission of India in its 54th Report went to the extent of recommending for deletion of Section 115 C.P.C. itself. The Law Commission was of the view that adequate remedy is provided for in Article 227 of the Constitution to correct cases of excess of jurisdiction or non-exercise of jurisdiction or illegality or material irregularity in the exercise of jurisdiction; so, Section 115 is no longer necessary to be retained. However, the Joint Committee of the Parliament did not agree with the Law Commission. The Joint Committee of the Parliament observed thus:
"The Committee, however, feel that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in Section 115 is on the other hand, cheap and easy. The Committee, therefore, feel that Section 115 which serves a useful purpose, need not be altogether omitted particularly on the ground that an alternative remedy is available under Article 227 of the Constitution."
The Joint Committee therefore recommended for additions to the restrictions contained in Section 115. Consequently, the original Section 115 came to be numbered as Sub-section (1) and a new proviso to Sub-section (1) and a new Sub-section (2) and an Explanation thereto came to be added by Central Act 104/1976. The Explanation was specifically added to define the expression 'case decided' in order to avoid controversy and lengthy arguments being advanced as to what is meant by 'case decided'. The expression 'any case which has been decided', was explained to remove the doubt and to set at rest the controversy as to whether Section 115 applies to an interlocutory order. Thus by reason of addition of the Explanation to Section 115 of the C.P.Code, it cannot now be doubted nor any arguments can be entertained whether an interlocutory order or any order passed during the course of a suit or proceeding would amount to a 'case decided', as long as the order affects some right or obligation of the parties in controversy in a suit or proceeding, in this connection, it may also be relevant to notice a Decision of the Supreme Court in BALDEVDAS SHIVLAL AND ANR. v. FILMISTAN DISTRIBUTORS (INDIA) PVT. LTD., and Ors. . Though this Decision was rendered prior to the amendment of Section 115 by Central Act 104/1976, it still governs the question as to whether it Is every interlocutory order passed in a suit or proceeding is revisable or it is only such interlocutory order passed in a suit or proceeding affecting some right or obligation of the parties to a suit, in controversy. In the above Decision, the Supreme Court also took note of its earlier Decision in MAJOR S.S.KHANNA v. BRIG. F.J. DILLION and held that the expression 'case' was not limited in its import to the entirety of the matter in dispute in action. The relevant portion of the Judgment is as follows:
"10. It may also be observed that by ordering that a question may properly be put to a witness who was being examined, no case was decided by the trial Court, The expression 'case' is not limited in its entirety of the matter in dispute in an action. This Court observed in Major S.S.Khanna v. Brig. F.J. Dillon that the expression 'case' is a word of comprehensive import; it includes a civil proceeding and is not restricted by anything contained in Section 115 of the Code to the entirety of the proceeding, in a Civil Court. To interpret the expression 'case' as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But it was not decided in Major S.S.Khanna's case (supra)] that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of the Code of Civil Procedure."
Thus, it is clear that an interlocutory order in a suit or proceeding can be held to be a 'case decided' if by such an order there is an adjudication for the purpose of the suit or proceeding some right or obligation of the parties thereto in controversy but not every order passed in the course of a suit or proceeding irrespective of the fact whether it decides some right or obligation of the parties in controversy. In the course of a suit or proceedings, several orders are passed by the Court trying a suit or proceeding. Every such order cannot be held to decide some right or obligation of the parties. However, there are several orders passed during the course of a suit or proceeding affecting the rights and obligations of the parties to the suit or proceeding. Such rights may be substantive rights or procedural rights. Order 26 of the C.P.Code deals with Commissions. It is open to a party to adduce oral evidence to prove the case pleaded by it or defence set-up by it, as the case may be, by adducing oral and or documentary evidence directly before the Court. Certain evidence can properly be adduced by local investigation conducted by a commission. Even the oral evidence in some cases, a party or a witness is entitled to have the same recorded through a commission. Order 26 of the C.P.Code itself provides for issuing commissions to examine witnesses and for local investigations for scientific investigation, performance of ministerial act and sale of moveable property and to examine accounts, to make partition etc., Thus Order 26 of the C.P. Code gives a right to a party to the suit to have a commission issued for the aforesaid purposes. If the party seeking appointment of commission satisfies the conditions laid down in Order 26 of the C.P. Code, he is entitled to have the commission appointed for the purposes mentioned in Order 28 of the C.P. Code, if the Court below rejects the request for appointment of a commission in a case where the requirements for appointment of a commission are satisfied, undoubtedly, such an order would affect the right of a party to the suit to adduce evidence, if a witness is entitled to be examined on commission and the Court refuses to issue a commission to record the evidence of a witness, not only the right of a party to the suit is affected, the right of a witness to be examined on commission is affected. There may be cases in which appointment of commission itself may not be warranted.' In such a case if the Court appoints a commission, it would be a case of exercising jurisdiction illegally. It would also result in affecting the right of the other party who opposes the appointment of a commission. A commission, is appointed for local investigation to find out the local conditions, existence or otherwise of certain things as alleged by the parties, in order to enable the Court to appreciate the evidence on record in the proper perspective and to adjudicate and controversies in the suit or proceeding correctly, and as far as possible to be in conformity with the existing realities. Therefore, in a case where the report of a commission based on local investigation is necessary but nevertheless the Court refuses such a request, the Court will not be in a position to properly appreciate the evidence on record and decide correctly the controversies involved in the suit. Consequently, the decision of the Court would suffer from infirmity and in many cases it may result in miscarriage of justice. Therefore, it is not possible to hold that an order appointing or refusing to appoint a commission does not affect the rights or obligations of the parties in controversy to the suit. Consequently, it follows that it is not possible to hold that no revision is maintainable against an order appointing or refusing to appoint a commission. We would also like to make it clear at this stage that it is one thing to say that a revision petition against an order appointing or refusing to appoint a commission is maintainable in law under Section 115 of the C.P.Code, and it is quite a different thing to say that an order appointing or refusing to appoint a commission is not liable to be interfered with in a particular case. The first statement relates to a bar at the threshold preventing the High Court even to look into the Revision Petition. The second one relates to examining the case and deciding as to whether it is a case for interference or not under Section 115 of the C.P.Code. It may also be pointed out that an order appointing or refusing to appoint a commission is not appealable and as such the bar contained in Sub-section (2) of Section 115 of the C.P. Code is not attracted. Whether in a given case an order appointing or refusing to appoint a commission is liable to be interfered with or not depends upon the facts and circumstances of each case and the purpose for which the commission is sought for and the reasons given by the subordinate Court. Therefore, we are of the view that a revision under Section 115 of the C.P.Code lies against an order passed appointing or refusing to appoint a commission under Order 26 of the C.P.Code. We would also like to make it clear that by holding that a revision lies against an order appointing or refusing to appoint a commission, we should not be understood to have laid down that every such order is liable to be interfered with. Whether an order passed in exercise of the discretion of the Court is liable to be interfered with or not, depends upon the question as to whether the discretion has been exercised judicially and on relevant considerations."
Having in mind the ratios decidendi of the case cited supra, I am of the view that the order passed by the trial Court in issuing emergent notices on interlocutory application filed under Order 39 Rules 1 and 2 of C.P.C. without exercising its powers under the proviso to Sub-section 3 of Order 39 C.P.C. would not amount to an adjudication for the purpose of the suit or proceeding some right or obligation of the parties thereto in controversy. It is also to be noted that every order passed in the course of the suit or proceedings irrespective of the fact that it decides some right or obligation of the parties in controversy, could it be characterised as orders coming within the purview of revisable order under Section 115 of C.P.C.
9. The word 'decided' has a definite meaning and where it is in respect of an issue or any particular matter under consideration, such issue or matter can be said to have been decided only when the Court has considered it and decided finally in so far as that matter is concerned. The Court while issuing notices under Order 39 Rule 3 of C.P.C., before considering the matter or issue the subject matter of an interlocutory application for granting interim injunctive relief, for purposes of recording its decision on the nature of the relief sought for cannot be called as case decided for purposes coming within the purview of Section 115 of C.P.C.
10. It is also to be noted that case contemplated by the words act illegally or with material irregularity is that of perverse decision on a question of law or procedure. A decision can be said to be perverse only when the matter pleaded is wilfully disregarded or when there is some conscious violation of rule of law or of procedure on the part of subordinate Court.
11. The Legislative intent of Order 39 Rule 3 of C.P.C, is that no ad-interim order of injunction shall be granted without assigning reasons therefor. Rule 3 contemplates that Court can grant injunction only when the Court is satisfied that object of granting injunction shall be defeated by the delay unless injunction is granted. Proviso lays down that in granting injunction Court shall record reasons. One should not overlook the Legislative intent behind provision. The whole intention is that the Court will not by an expert order prejudice the interest of the party who is not before the Court unless the Court finds that issue of ad-interim injunction is indispensable. That is all the more reason why the Legislature requires the Court to record reasons for granting an ad-interim injunction. It is otherwise the rule is issuance of notice. Issuance of notice under Rule 3 can not always be characterised as Court having failed to exercise jurisdiction and more so having acted in the exercise of its jurisdiction illegally or with material irregularity.
12. To understand the real meaning and purpose of an order one has to look into Section 2(9) and (14) of C.P.C., to find out what possibly could be an order which could be pronounced by Civil Court in Court of law. The order is not to be understood as a mandate in the layman's sense but it should be one which should be taken to be meaningful and purposeful besides being one which tantamounts to the formal expression of any Decision of a Civil Court and which Decision again is based on certain interlligble grounds. Order passed by a judicial authority to which Code of Civil Procedure applies should not ordinarily make it an 'order' without basing it on intelligible grounds or reasons. If no such data is given for the passing of such an order or it does not ex facie appear in the order itself, then it would cease to be a formal expression of a Decision which is in primordial garb to clothe the mandate of Court with the badge of 'an order'. It is to be stated that there are inbuilt safeguards in the infrastructure in order 39 of C.P.C. Issuing of notices under Rule 3 of Order 39 before granting interim injunctive relief cannot be construed as an order which is revisable under Section 115 of C.P.C.
13. As such the impugned order does not suffer from any legal infirmities. This Civil Revision Petition is dismissed as being not maintainable. Following the ratio decidendi of the case reported in 1973(2) Mys. L.J. 961, it is appropriate to direct the parties on record to appear before the trial Court for seeking necessary orders on Interlocutory application filed under Order 39 Rules 1 and 2 of C.P.C. since notices and suit summons have been served on parties.