Indian Kanoon - Search engine for Indian Law

The Trial Court framed several issues for trial but curiously enough dropped many issues as not surviving in view of the stand taken on behalf of the plaintiffs' counsel at the time of the trial of the suit. It was conceded on their behalf, and rightly too, that the agreement dated the 31st December, 1966 was a settlement under section 18(1) of the Act. It could be binding only on the members of the Sabha Union and not on others. But since the suit was filed on behalf of the non-members also who were not members of either Union and in a representative capacity the main basis of the suit being the agreement dated the 31st December, 1966 was given up, and it was stated on behalf of the plaintiffs that they did not wish to enforce that agreement. Hence many issues, according to the learned Trial Judge did not survive for discussion and were dropped. One such issue was issue no. 7 in relation to the requirement of the notice under section 9A of the Act for effecting any change in the agreement dated the 31st December, 1966. Treating the incentive payments made on and from the year 1966 till 1970 as implied terms of conditions of service, the Trial Judge seems to have come to the conclusion that the change effected in January, 1971 was detrimental to and against the interests of the workmen. Due to some technical reasons the first relief of declaration was not granted. But holding that the court had jurisdiction to try the suit as it was a suit of a "Civil nature for enforcement of rights of common and general law and consequently there is no question of the reliefs being claimed under the Industrial Disputes Act", it granted a sort of conditional decree of injuction restraining the appellant from enforcing or implementing the terms of agreement of the 9th January, 1971 against the workmen of its Motor Production Department who are not members of the Association Union. The injunction, however, was not to operate in regard to any workmen who in writing accepted the terms of the impugned agreement or after the appellant took steps in accordance with law to make the agreement binding on workmen other than those who are not members of the Association Union. The decree for injunction was also to cease to be operative if the appellant gave any notice of change under section 9A of the Act on expiry of 3 months after the expiry of 21 days notice given under the said provisions of law.

"In my opinion, there was nothing to prevent the old Court of Chancery from granting an injunction to restrain the infringement of a newly created statutory right, unless the Act of Parliament creating the right provided a remedy. which it enacted should be the only remedy-subject only to this that the right so created was such a right as the Court under its original jurisdiction would take cognizance of."

On a close scrutiny, however, it would be noticed that the principle of separate remedy only for the purpose of injunction available in a court of Chancery, which was kept intact even after the Judicature Act of 1873 is not applicable in India. Historically the Chancery Court had assumed certain special jurisdiction under its original jurisdiction to take cognizance of a special kind of right even though the common law court may not have such jurisdiction In India under section 9 of the Code, the Courts have subject to certain restrictions, jurisdiction to try suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. There are no different systems of civil courts for enforcement of different kinds of rights. In the instant case taking cognizance of a suit in relation to an industrial dispute for the enforcement of any kind of right is not expressly barred. But if it relates to the enforcement of a right created under the Act, as stated above by necessary intendment, the jurisdiction of the Civil Courts is barred. That being so, in India, it is barred for all purposes, except in regard to matters which will be alluded to hereinafter. The position will be further clear on reference to the quotation from the decision of Lord Turner in the judgment of Farwell, J at pages 904 and 905 from the case of Emperor of Austria v. Day(1). The great Master of Equity in relation to the remedy in the Chancery Court said:

It will bear repetition to say that the jurisdiction of the Civil Court in India is limited to cases in which there is a right at law, that is to say a right to be pursued in such Court.

The distinction aforementioned also finds ample support from the speech of Lord Davey in Barraclough v. Brown and others (supra). At page 623 the noble and learned Lord has pointed out that the power of the Court or Chancery to make declarations of right without giving consequential relief was introduced by section 50 of the Chancery Procedure Act 1852. After some decisions of the English courts some additional words were introduced in order to "enlarge the power of the Court to make declarations in cases where from the nature or the circumstances of the case no substantive relief could be given by the Court." When we proceed to deal with certain decisions of the Privy Council and of this Court in relation to a taxing statute it will be pointed out under what circumstances an action in a Civil Court can lie to challenge the decisions of the taxing authorities. If the proposed action of the taxing authority is of a kind which when taken would be amenable to be challenged in a Civil Court the remedy for the relief of injunction to prevent the action would also lie but not otherwise. As for example, in accordance with the majority decision of this Court in the case of K. S. Venkataraman & Co. v. State of Madras if tax is imposed under a provision of the statute which is ultra vires, the imposition can only be challenged by pursuing a remedy in a Civil Court or in High Court. Suppose a case where a proceeding is initiated by issuance of a notice for imposing a tax on person under a provision of law which is ultra vires, a suit for injunction would lie to prevent the threatened action. But a suit, unlike the remedy in a Chancery Court, merely for the purpose of injunction would not lie to prevent an action which when completed cannot be challenged in a Civil Court.

One more difficulty in the way of the sustainability of the order of injunction may also be indicated. Temporary injunction can be granted under sub-section (1) of section 37 of the Specific Relief Act, 1963 but a decree for perpetual injunction is made under sub-section (2). Grant of perpetual injunction is subject to the provision contained in Chapter 8. Under section 38(1) a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour irrespective of the fact whether the obligation arises at common law, under a contract or under a special statute (subject to the point of jurisdiction). But sub-section (2) provides that when any such obligation arises out of contract the courts shall be guided by the rules and provisions contained in Chapter 2. Section 14(1) (c) occurring in that Chapter says that a contract which is in its nature determinable cannot be specifically enforced. The contract in question embodied in the written agreement dated the 31st December, 1966 was in its nature determinable under section 19(2) of the Act or could be varied by following the procedure under section 9A. Section 41(a) of the Specific Relief Act says that an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced. Section 42 providing an exception to this is not attracted in this case. The decree or order of injunction made therein, therefore, is not sustainable on this account too.