Madras High Court
Indev Logistics Pvt. Ltd vs R.Manimuthu on 4 December, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/12/2012 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)(MD)No.2561 of 2012 and M.P.(MD)No.1 of 2012 1.Indev Logistics Pvt. Ltd., No.41 (Old No.81), Swami Complex, 3rd Floor, Thambu Chetty Street, Chennai. 2.Indev Logistics Pvt. Ltd., Branch Office, Tuticorin through its Branch Manager, Mr.A.J.R.Manickam, having office at Tuticorin, Harbour Bye Pass Road, Tuticorin. .. Petitioners Vs R.Manimuthu .. Respondent Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order made in I.A.No.1450 of 2012 in O.S.No.343 of 2012 on the file of the Sub-Court, Tuticorin, dated 27.11.2012. !For petitioners ... Mr.T.V.Ramanujam, Sr.Counsel for Mr.M.V.Venkataseshan ^For respondent ... Mr.R.Meenakshi Sundaram :ORDER
A resume of facts absolutely necessary and germane for the disposal of the Civil Revision Petition as well the miscellaneous petition would run thus:
The learned Senior Counsel for the revision petitioners / defendants, by inviting the attention of this Court to the impugned order as well as the plaint and also the I.A. filed by the respondent, would pyramid his arguments which could succinctly and precisely be set out thus:
The respondent filed the suit seeking to pass a decree in his favour as under:-
1)granting permanent injunction restraining the defendants, their men, agents or servants from removing the three containers MSKU 9197431, MSKU 9462432 and MSKU 2372232 and the ready made garments stuffed inside the above three containers from Tuticorin till the defendants' account with the plaintiff is finalised by them.
2)directing the defendants to pay the cost of the proceedings to the plaintiff.
3)granting such other relief or further reliefs that this Hon'ble Court may deem fit and necessary according to the facts and circumstances of the case and thus render justice.
2.There is no prayer for recovery of any amount and it is not even a suit for rendition of accounts or settlement of accounts between the parties. It is only a bare suit for injunction under Section 27(3) of the Tamil Nadu Court Fees and Suits Valuation Act and the main prayer in the suit itself is for preventing the goods worth Rs.2 + Crores to be exported by the revision petitioners to a foreign buyer. As such, the suit is untenable and it is not a suit for recovery of money and in that, no ABJ petition was filed and no ABJ was ordered. But on the other hand, it is a peculiar suit which is totally in violation of Order 2 Rule 2 of CPC as well as the provision of Section 41 of the Specific Relief Act.
3.The learned Senior Counsel also would come forward with a supine submission that he is ready on behalf of his client to deposit in the account of this case, in this Court, a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs Only) as security for vacating the injunction. He has submitted further that before the Lower Court, his client would file an application under Order 7 Rule 11 of CPC to reject the plaint.
4.Whereas, the learned counsel for the respondent, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the revision petitioners, would submit his arguments that the revision petitioners had the liberty to approach the Trial Court itself for getting the injunction vacated which they have not done so; however, they filed a CMA which was returned with certain queries, but they have not chosen to re-present the CMA with explanation; they straightaway approached this Court under Article 227 of the Constitution of India which is not maintainable.
5.The point for consideration is as to whether this Civil Revision Petition can be entertained under Article 227 of the Constitution of India along with this M.P.(MD)No.1 of 2012, at this stage?
6.A mere running of the eye over the plaint as well as the prayer extracted supra in the plaint, would clearly evince and evidence that the plaintiff had some grievance relating to the accounts, concerning the transactions between the plaintiff and the defendants relating to freight charges. According to the plaintiff, there are dues payable by the defendants and in such a case, he has not chosen to file a suit for rendition of accounts or for recovery of money and the prayer itself is a dubious one, but he prays for injunction and that injunction should continue till the accounts are settled. However, he has not chosen to seek for rendition of accounts or for recovery of money. The suit itself was valued only under Section 27(c) of the Tamil Nadu Court Fees and Suits Valuation Act and he paid a court fee of Rs.1,10,000/-. Such framing of the suit itself is a questionable one in view of Order 2 Rule 2 of CPC and also Section 41 r/w 34 of the Specific Relief Act. The suit itself is not prima facie and ex-facie maintainable and the plaintiff has no right admittedly over the goods relating to which injunction was sought. For the purpose of allegedly securing the recovery of his amounts payable to him by the defendants, he sought for injunction. In such a case, based on certain assumed right to recover money, injunction was granted.
7.The learned Senior Counsel also would highlight that the averments made in the plaint as well as in the order dated 23.11.2012 passed in CRMP Nos.7316 of 2012 and 7387 & 7534 of 2012, which is found enclosed in the typed set of papers, would expatiate and connote that admittedly, the plaintiff entrusted the goods referred to in the plaint, to the defendants for transporting them to the Tuticorin Harbour for shipment to a foreign buyer and the plaintiff unjustifiably withheld those goods. Whereupon, a police complaint was lodged as against the plaintiff and the police also seized the goods referred to in the plaint and handed them over to the Magistrate. Thereafter, the seized goods were released in favour of the plaintiff under some conditions and bonds. Subsequently, the plaintiff filed the injunction suit and thereby got the interim injunction. Regarding the factual matrix as narrated by the learned Senior Counsel, there is no contradiction forthcoming from the respondent's side herein. However, the learned counsel for the respondent herein is having his own explanation for the conduct of the plaintiff and justifying his act.
8.The above narration of facts would clearly indicate and display that the plaintiff was bent upon preventing the goods concerned from being despatched to the foreign buyer. As such, prima facie, the learned Subordinate Judge had no jurisdiction at all to grant such ex-parte interim injunction in a suit for bare injunction which is niggard and bereft of any prayer for recovery of any amount or for rendition of accounts, etc. Over and above that, when they approached the Appellate Court by way of filing CMA as against that ex-parte interim order, the Appellate Court returned it with the following endorsement:
"1)Certified copy of fair order and decreetal order to be produced. 2 to 4---
5)Schedule of property to be furnished.
6)How this C.M.A. is maintainable in this Court to be explained. Since this C.M.A. preferred against the interim order passed by the Sub Court, Tuticorin.
7 & 8 ---
Time 3 days"
In view of the Appellate Court having turned down their request, the present Civil Revision Petition is filed under Article 227 of the Constitution of India.
9.The contention on the side of the plaintiff is that straightaway without exhausting the defendants' remedy before the two fora below, they ought not to have filed this Civil Revision Petition under Article 227 of the Constitution of India. The learned Senior Counsel for the revision petitioners / defendants, by citing the decision of the Hon'ble Apex Court in the case of Surya Dev Rai v. Ram Chander Rai and Others, reported in (2003) 6 SCC 675, contends that this is a fit case for invoking Article 227 of the Indian Constitution. So far as this case is concerned, at the outset itself, I would like to refer to the decision of this Court in Durairaj and others v. Venugopal and another reported in 2012- 3-L.W. 807. Certain excerpts from it, would run thus:
"12. I would like to refer to sub section (2) of Section 115 of CPC, which would unambiguously and unequivocally highlight and spotlight the fact that if appeal lies in respect of a matter, then no revision could be entertained under Section 115 of CPC.
13. The warp and woof of the contention of the learned counsel for the respondent/plaintiff is to the effect that as against the order passed in the CMA, inasmuch as no further appeal is contemplated, the only remedy could be the one under Section 115 of CPC. I cannot countenance such a view for the reason, that had the legislators thought that that should be the legal position as canvassed by the learned counsel for the respondent/plaintiff, the legislators would have spelt out thus: "the revision under this Section [S.115 of CPC] shall not lie without exhausting the appeal remedy, if any," but that is not the legislative language and that was not the intention of the legislators as well. In Surya Devi's case (supra), the Hon'ble Apex Court glaringly and pellucidly shed light on the point that no revision under Section 115 of CPC would lie as against the order in Appeal. The legislators in their wisdom thought that in respect of certain matters appeal remedy if provided under law, then the parties concerned should get themselves satisfied with that remedy and once again, they cannot carve out their own dubious way of approaching the High Court under Section 115 of CPC. The mischief sought to be suppressed by the amendment of Section 115 of the Code of Civil Procedure is axiomatic and obvious and if the view of the counsel for the respondent/plaintiff is accepted, it would amount to opening the flood gate throwing to winds the spirit and essence of Section 115 of the Code of Civil Procedure.
14. The learned counsel for the respondent/plaintiff also inviting the attention of this Court to the proviso appended to sub Section (1) of Section 115 of CPC, would try to buttress and fortify his view, but an analysis of the said proviso would reveal and demonstrate that it is against his case. To maintain a revision under the said proviso, hypothetically the impugned interim order should be visualized thus: Gramatically "unreal past" situation in the said proviso is contemplated. If such order had been passed in his favour, whether it would have the effect of finally disposing of the suit or the proceedings before the lower court. Here, it is crystal clear that if the said order had been passed under Order IX Rule 13 of the Code of Civil Procedure by allowing the interlocutory application, the main suit itself would have got revived and the proceedings in the main suit would be in progress. The same position would be if the CMA had been allowed. Hence the said proviso cannot be pressed into service by the respondent/plaintiff in support of his proposition that only a revision under Section 115 of the Code of Civil Procedure would lie.
15. Needless to point out, that before 1976 amendment of CPC the position was different and the objects and reasons relating to amendment of Section 115 of the Code of Civil Procedure is worthy of being reproduced here under:
[Report of the Joint Committee-Gazette of India, Ext., dt.1-4-1976, Pt.II, S.2, p.804/10-11] "Amendments: Objects and Reasons.- Clause 43 (Original clause 45).- By clause 45 of the Bill, section 115 of the Code was proposed to be omitted. The question whether it is at all necessary to retain section 115 was carefully considered by the Committee. The Law Commission has expressed the view that, in view of article 227 of the Constitution, section 115 of the Code is no longer necessary. 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 Committee feel that the expression "case decided" should be defined so that the doubt as to whether section 115 applies to an interlocutory order may be set at rest. Accordingly, the Committee have added a proviso and an Explanation to section 115.
[Statement of Objects and Reasons (Bill 1999).] Amendments: Objects and Reasons.-Clause 12.- Section 115 of the Code provides for revision by the High Court or an order or decision of any Court subordinate to such High Court. The Malimath Committee noticed that often the records of the lower Courts are sent to the High Court in the revisional proceedings. It is imperative that records of proceedings pending in the subordinate Court should not be sent unless High Court so desires and revision should not operate as stay of proceedings before the trial Court. The Committee while agreeing in principle that scope of interference against interlocutory orders should be restricted, felt that the object can be achieved more effectively without demanding the High Court of the power of revision. Clause 12 seeks to achieve the above object by suitable amendments to section 115.
16. Wherefore, if the view of the learned counsel for the respondent/plaintiff is accepted, it would amount to rendering the very restrictive scope found embedded in Section 115 of CPC nugatory and otiose. As such, I am of the considered view that once appeal remedy is contemplated in respect of an order and the appeal remedy itself has been exhausted, then the question of invoking Section 115 of CPC would be a well-neigh impossibility. * * * * *
20. It is quite obvious and axiomatic that when appeal remedy is contemplated, revision under Section 115 of CPC would not lie. Then the core question arises as to what would happen to a litigant who is really having some grievance if there is any gross perversity in the impugned order. At this juncture, I recollect certain excerpts from the decision of the Hon'ble Apex Court reported in 2005 (6) SCC 344 [Salem Advocate Bar Assn., T.N. v. Union of India]; certain excerpts from it would run thus:
"40. Section 115 of the Code vests power of revision in the High Court over courts subordinate to it. Proviso to Section 115(1) of the Code before the amendment by Act 46 of 1999 read as under:
"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where"
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made."
(emphasis supplied) Now, the aforesaid proviso has been substituted by the following proviso:
"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings."
The aforesaid clause (b) stands omitted. The question is about the constitutional powers of the High Courts under Article 227 on account of omission made in Section 115 of the Code. The question stands settled by a decision of this Court in Surya Dev Rai v. Ram Chander Rai holding that the power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. Curtailment of revisional jurisdiction of the High Court under Section 115 of the Code does not take away and could not have taken away the constitutional jurisdiction of the High Court. The power exists, untrammelled by the amendment in Section 115 and is available to be exercised subject to rules of self-discipline and practice which are as well settled."
As such in certain circumstances, if at all the party concerned could make out a case under Article 227 of the Constitution of India, then he could petition the High Court invoking the said provision of law."
10.I also referred to the Hon'ble Supreme Court's judgment in the above referred judgment. It is therefore clear that as per the dictum laid down in my previous judgment, they promptly approached the Appellate Court, but the Appellate Court, to the great surprise and shock, simply returned the appeal questioning the right of the appellant to file the appeal, and as such, it is an unjustifiable return. The Appellate Court was not justified in simply raising query as to how CMA would lie as against the interim order of injunction. It is a trite proposition of law that whenever any ex-parte injunction order is passed by the Trial Court, the Appellate Court can entertain straightaway the appeal and even that basic proposition of law was not known to the District Judge concerned, who returned it. The learned counsel for the plaintiff, in the facts and circumstances of the case, would submit that there is no certified copy of the impugned interim order enclosed in the C.R.P. It is quite surprising to note as to how the plaintiff is bent upon to drag on the proceedings. The learned Senior Counsel would with reference to the circumstances of this case, portray and delineate, as to how the goods concerned are required for shipment so as to honour the defendants' commitment to the foreign buyer, whereas the plaintiff unambiguously and unequivocally, project his intention to stall that process. My mind is reminiscent and redolent of the following maxims:
1)"Nul prendra advantage de son tort demesne". [No one shall take advantage of his own wrong.]
2)"Nullus commodum capere potest de injuria sua propria". [No one can obtain an advantage by his own wrong.]
3)"Nemo allegans suam turpitudinem audiendus est". [No one alleging his own turpitude is to be heard as a witness.].
As such, the plaintiff, having filed such vague suit for injunction, was not justified in now insisting for production of certified copy of the interim order passed by the Lower Court, over and above the photocopy of the interim order of the Lower Court found enclosed in the typed set of papers. My above discussions would spotlight and indicate that the impugned order was passed without jurisdiction by the Subordinate Court. This is the fittest case for invoking Article 227 of the Constitution of India and that too in view of the fact that the learned Senior Counsel came forward to deposit a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs Only) in the account of this case in this Court by way of demand draft. I am of the view that the interim impugned order has to be set aside and accordingly it is set aside by giving liberty to the revision petitioners herein to file necessary application under Order 7 Rule 11 of CPC, before the Lower Court for quashment of the plaint as prayed for, whereupon the matter shall be processed as per law. Accordingly, on such deposit of demand draft with the Registry, the copy of this order shall be issued. The Registry shall retain the amount in this Court deposit as security in connection with this case, until further orders, by sending the demand draft to the bank for such purpose of depositing in Court deposit.
11.The Civil Revision Petition is disposed of accordingly. Consequently, the connected miscellaneous petition is closed. No costs.
KM To The Subordinate Judge, Tuticorin.