Karnataka High Court
Jayathirth Ramacharya Gudi vs Bindumadhavacharaya ... on 8 November, 1995
Equivalent citations: ILR1996KAR941, 1996(1)KARLJ124, 1996 A I H C 2360, (1996) 2 CURCC 216, (1996) 2 ICC 277, (1996) 1 KANT LJ 124
JUDGMENT Hari Nath Tilhari, J.
1. This is a Revision under Section 115 of the C.P.C. from the Judgment and order dated 27.1.95 passed by the Civil Judge, Haveri in Misc. Appeal No. 21/94 (Jayathirth Ramacharya Gudi and Anr. v. Bindumadhavachar Srinivasachaiya Gudi and Ors.) dismissing the Appeal filed by defendants - 4 and 5 from the order of temporary injunction issued against them by the Trial Court i.e. the Munsiff, Haveri while disposing of I.A.Nos. 2 and 4 in Original Suit No. 165/92 vide its order dated 3.11.94. The lower Court affirmed the order of the Trial Court.
2. The facts of the case in brief are that the plaintiffs opposite party filed the suit against defendants-1 to 3 namely i.e. the present respondents-4 to 6, claiming the decree for permanent injunction restraining defendants in the suit namely 1 to 3 and their servants or agents permanently from restoring and giving or supplying any electrical energy to the suit schedule property and the welt therein in any manner whatsoever. It may be mentioned that the following expression was also used in the relief clause: "till final decision of the matter on merits i.e. O.S. 164/91 on the file of this court". This expression was later on deleted by amendment under the Trial Court's order dated 16.10.93. The second relief that has been claimed is costs and such other relief as the Court deems fit. The plaintiffs as per plaint allegations appears to have alleged the grievance and cause of action against defendant No. 1 namely, the Assistant Executive Engineer, KEB, Haveri. Along with the plaint of the suit, the plaintiffs had filed an application for temporary injunction under Order 39 Rule 1 and 2 of the CPC. The Trial Court while dealing with the interim relief application has observed as under:
"As stated by me above, admittedly, the plaintiffs have 5/12th share in the suit well. Therefore, defendants 4 & 5 have only the remaining 5/12th or 6/12th share in the suit well. There cannot be any partition in the well by metes and bounds. Under such circumstances, I tried to effect a compromise between the parties, because, both the parties are highly educated. But, both the sides were not inclined for a compromise, Under such circumstances, if the defendants 4 & 5 are permitted to use the electric motor to lift water from the suit well it will definitely lift huge quantity of water and the plaintiffs may be deprived of having any water in the suit well. Normally, it is irrational for the plaintiffs to claim such a relief. Because, in my opinion the plaintiffs could have compromised with defendants 4 & 5 and have used the said pump. The plaintiffs could have even fixed up their own pump. But, my said views cannot be imposed on the plaintiffs. Had they agreed for the compromise, then, the matter would have been different."
Thereafter, the lower Court mentioned that in Suit No. 164/91 the Court had come to the conclusion that in the absence of the consent of the plaintiffs, defendants 4 and 5 cannot use electric pump for lifting water from the suit well and that permission was absolutely necessary. The Court further observed that from material available on record, the consent was sought from the plaintiff. But defendants were unable to obtain the consent of the plaintiffs. The Court was of the view that there is no compromise possible between plaintiffs and defendants 4 and 5. The Trial Court observed that under the circumstances of the case, it would be better to restrain defendants 4 and 5 from using the electric pump till the suit is decided on merits or till they reach some compromise with the plaintiffs, instead of restraining the defendants 1 to 3 from making supply of electricity to the electric pump fixed to the suit well i.e. if defendants 1 to 3 are directed to stop the supply of electricity, it may perhaps stop the supply of electricity to the house of the plaintiffs. The Trial Court further observed that the suit has wrongly been filed against defendants 1 to 3 and defendants-1 to 3 had wrongly been dragged to the litigation by the plaintiffs. The Trial Court has observed that the plaintiffs could well have filed the suit only against defendants 4 and 5. The Trial Court after taking the view that the plaintiffs could have filed the suit against defendants-4 and 5 and they were entitled to claim relief only against defendants-4 and 5 and not against defendants 1 to 3, granted the temporary injunction order against defendants-4 and 5 restraining them from making use of electrical energy for lifting the water, vide order dated 3.11.94. Having felt aggrieved from the interim order of the Trial Court, the defendants preferred Misc. Appeal No. 21/94 and the lower Appellate Court dismissed the Appeal and affirmed the order of temporary injunction granted by the Trial court.
3. That having felt aggrieved from the order dated 27.1.1995 passed by the lower Appellate Court dismissing the defendants Misc. Appeal, the defendants have come up in Revision under Section 115 of the CPC.
4. I have heard Sri R.H. Chandangoudar, appearing on behalf of the petitioners and Sri Ananth Mandgi, learned Counsel for the respondents at length. It has been strenuously contended on behalf of the Revisionists applicants that the suit, in which the application for temporary injunction had been made was directed primarily against defendants-1 to 3 and the relief that was claimed in that suit was decree for injunction restraining defendants 1 to 3 from supplying the electrical energy to the schedule property and to the well. The learned Counsel for the Revisionists submitted that no cause of action has been alleged against the defendants in the original plaint nor subsequent to the impleadment of defendants 4 and 5 i.e. the present Revisionists as defendants - 4 and 5 in the suit at the instance of defendants themselves. It has also been contended that when no cause of action had been alleged in the plaint against the defendants Revisionists and no relief had been claimed against the Revisionists in the plaint and the only relief that has been claimed was for an injunction against the defendants-1 to 3 that they should be restrained from supplying or restoring the electrical energy to the suit schedule property, the interim relief of the nature which has been granted by the Trial Court could not have been granted and it was illegally granted and particularly in the context of the application for temporary relief. In the application for interim relief there had been three parties which had been impleaded as defendants i.e. the Assistant Executive Engineer KEB, Executive Engineer, KEB, and the Karnataka Electricity Board and the temporary injunction relief has been claimed, as such that the defendants and their servants or agents may kindly be restrained by interim injunction from restoring or giving electrical energy to the suit schedule property and the well therein in any manner whatsoever till the final decision of the matter on merits in O.S.No. 164/91. In I.A. 4 the prayer was the same. It was prayed that defendants--1 to 3 may be directed to disconnect or terminate the supply of electrical energy to the suit property. The learned Counsel submitted that when no relief has been claimed against the present defendants - petitioners, the Court below could not issue temporary injunction of the nature it has issued against them directing them not to make use of electrical pump for taking the water from the well. The learned Counsel submitted that the learned Court below acted illegally or it may be said in excess of jurisdiction vested in granting the order of injunction against defendants-4 and 5, particularly in absence of any cause of action being alleged or pleaded in the pleading and in absence of any relief being claimed against the defendants petitioners.
5. On behalf of the opposite party, Sri Ananth Mandgi, submitted that the Court below has found that the prima facie case has been made out for grant of injunction and that the balance of convenience too lies in favour of the plaintiffs who had applied for grant of temporary injunction and so the Court below only moulded the relief in the circumstances of the case, as in its opinion it would be better to restrain the defendants-4 and 5 from making use of the said electric pump instead of restraining the defendants - 1 to 3 from stopping the electricity to the said suit well. The learned Counsel submitted that under Order 7 Rule 7 of the CPC, the Court has got the power to grant general and other reliefs which in the suit has not been claimed if the circumstances of the case requires. He submitted, applying the said Rules, it can be stated that the Courts below did not commit any legal error or error of law or illegality in issuing the injunction in favour of the plaintiff opposite party and against the defendants Revisionists. The learned Counsel submitted that if temporary injunction order would have been granted against defendants-1 to 3 directing them not to supply electricity to defendants, it might have affected them more arduously and therefore the limited or restricted relief has been granted against defendants-4 and 5 that they should not make use of the electrical pump. The learned Counsel for the opposite party fairly admitted before me that plaintiffs had not alleged any cause of action nor has claimed any relief against the defendants 4 and 5. His main relief and the cause of action which he claims is only against defendants-1 to 3 and the main relief that has been claimed is against defendants-1 to 3, but in the specific circumstance of this case, the Court while dealing with the temporary injunction granted relief against defendants-4 and 5. The learned Counsel further submitted that the order does not have the tendency of causing material injustice or injury to the Revisionists and therefore this is not a fit case in which Revisional Powers should be exercised.
6. I have applied my mind to the contentions made by the learned Counsel for the parties. This is beyond doubt that jurisdiction of this Court under Section 115 is limited and is confined to jurisdictional error and only in cases where on account of jurisdictional error it is shown that substantial injury is going to be caused to the Revisionists, and it is in such cases interference is ordinarily made. Order 39 Rules 1 and 2 deal with the grant of injunction. The grant of relief of injunction is no doubt discretionary but it can be granted on the making out of prima facie case and establishing the balance of convenience. In the present case as admitted by the parties that the relief claimed in the suit was not directed against defendants-4 and 5. I mean to say, no relief has been claimed specifically against defendants-4 and 5. The relief, that had been claimed, had been claimed against the Electricity Board and the authorities of the Electricity Board. The interim relief had also been claimed against those parties i.e. the K.E.B. authorities. The Court had to examine the matter in the context of defendants-1 to 3 that whether granting of injunction order or temporary injunction order could have been proper against defendants No. 1 to 3. The Courts below found that by virtue of the Order dated 23.3,92 passed by this Court in Writ Petition No. 2355/92 the direction had been issued to the Electricity Board by the High Court to make supply of the electric energy to the defendants-4 and 5. Once this Court had directed the Electricity authorities to make supplies of electricity to the defendants-4 and 5, the electricity authorities were bound to follow the orders of this Court and in such circumstances the granting of injunction order restraining the K.E.B. from restoring electricity supply to the electrical motor pump of the defendants would have amounted to breach of the direction of the Court. In such circumstances if the Trial Court observed that the present suit had been misconceived and that defendants-1 to 3 had been unnecessarily dragged in the litigation, really the application for temporary injunction against defendants-1 to 3 should have been refused and which appears to have been done impliedly. But when no cause of action has been alleged or pleaded against the defendants-4 and 5 and no relief has been claimed against defendants-4 and 5 as in the suit or in the application for temporary injunction, in my opinion, the learned Munsiff when issued the injunction order against defendants-4 to 5, it has acted illegally and in breach of well settled principles of law. If the plaintiffs had any cause of action against defendants-4 and 5 on the ground that they have taken electricity without the consent of the plaintiffs, then the proper course would have been to file a suit against defendants-4 and 5 to get their electricity removed with a direction to them not to make use thereof. In this case, the Courts below committed error of law by granting the injunction against defendants-4 and 5. In my opinion this really amounts to making out a new case which has not been pleaded and for which no cause of action has been alleged in the plaint. The power of the Court, no doubt under Order 7 Rule 7 is wide enough to grant relief of general nature or other relief, even if it has not been claimed. But it has got to be read in the context of the plaint allegations and the cause of action made therein. If no cause of action has been made against certain persons, then in that case, in my opinion, the Court could not grant the relief under Order 7 Rule 7.
7. On behalf of the opposite parties reference has been made to the Decision of the Supreme Court in the case of PASUPULETI VENKATESWARLU v. THE MOTOR & GENERAL TRADERS, . In that case their Lordships of the Supreme Court have laid down as under:
"Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the Trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice ................................ We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."
8. In the case of INDIRABAI AND ANR. v. PROF. SHYAMASUNDER AND ANR., 1988 (1) KLJ 426 the Division Bench of this Court laid it down as under:
"The normal rule that relief not founded on the pleadings should not be granted is not without an exception. Where substantial matters constituting the title of all the parties are touched in the issues and have been fully put in evidence, the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the court while moulding the relief must take care to see that relief it grants is not inconsistent with the plaintiff's claim, and is based on the same cause of action on which the relief claimed in the suit, that it occasions no prejudice or causes embarrassment to the other side; that it is not larger than the one claimed in the suit, even if, the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint."
This last marked sentence clearly reveals that when exercising power under Order 7 Rule 7, the Court has to take care to see that even if plaintiff is entitled to a relief, but the relief which he wants granted under Order 7 Rule 7 is not larger then what has been claimed in the suit. It means that it should not be granted unless the plaintiff amends the suit. It further puts barrier i.e. if the relief claimed has become barred by time, then such relief under Order 7 Rule 7 may not be granted.
9. Applying this principle to the present case, I find that firstly no cause of action has been alleged against the defendants-4 and 5. It has not been alleged in the plaint or in the application for interim relief that the defendants-4 and 5 are going to consume more water or they are going to take entire water by use of electrical pump and that plaintiffs will be deprived of his share. These facts cannot be assumed. The facts have got to be alleged in the pleadings and in the application supported by affidavit. In the present case, the Courts below appear to have proceeded on assumption of facts without those facts being pleaded against defendants-4 and 5. If those facts been pleaded in the plaint against the defendants-4 and 5 as well as in the application, then for a moment it could be urged or said that relief though not distinctly claimed against defendants-4 and 5, it could be granted, provided it had not become barred by time. But where no case has been made out or alleged against defendants-4 and 5 and no relief had been claimed nor could be claimed on those facts alleged, then when the Courts below granted the relief of temporary injuction against defendants-4 and 5, in my opinion, the Courts below committed jurisdictional error and acted with material irregularity in directing the defendants-4 and 5 not to make use of the electrical pump, when under the order passed in the Writ Petition, he has been able to get electrical supply for electrical pump as well. The order of the Trial Court in such a situation definitely has got a tendency adversely affecting the interest of defendants-4 and 5 and to cause injury. Thus considered, in my view, the order which has been passed by the Courts below granting temporary injunction directing defendants-4 and 5 not to make use of electricity for electrical pump appears to be suffering from illegality and it appears to have been passed in illegal exercise of jurisdiction.
10. In the case of TROJAN & CO. v. NAGAPPA CHETTIAR, , it has been laid down by Their Lordships as under:
"It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."
11. In this view of the settled principle of law, the Court had not been entitled to grant the relief of temporary injunction against defendants-4 and 5 when it was not asked for either in the plaint or in the application for temporary injunction. It might have been a different case, had the plaint been amended but I do not make any observation on that matter.
12. Thus considered, in my opinion, the impugned order suffers from jurisdictional error and has got a tendency of causing injury and it will amount to injustice if a relief is granted to a party without any allegations, cause of action being made against him. Thus considered, I think, it is a fit case in which this Court should interfere under Section 115 of the Code.
13. I may clarify that if plaintiffs apply for the amendment of the plaint and thereafter it may be open to him to move a fresh application for the Court to consider or if he files a separate suit against the defendants, the decision made in this Revision will not affect the consideration of the matter afresh by the Court below.
14. Subject to the above observation the Revision is allowed with costs and the judgment and orders of the Courts below as affirmed by the 1st Appellate Court is hereby set aside.