PETITIONER:
MANOHAR LAL CHOPRA
Vs.
RESPONDENT:
RAI BAHADUR RAO RAJA SETH HIRALAL
DATE OF JUDGMENT:
16/11/1961
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
WANCHOO, K.N.
GUPTA, K.C. DAS
SHAH, J.C.
CITATION:
1962 AIR 527 1962 SCR Supl. (1) 450
CITATOR INFO :
F 1965 SC1144 (6)
R 1966 SC1899 (5)
F 1983 SC1272 (21)
R 1986 SC 421 (34)
ACT:
Civil Procedure-Inherent powers of courts-
Temporary Injunction-Restraining party from
proceeding with suit in another State-Legality and
propriety of-Code of Civil Procedure, 1908 (V of
1908), ss. 94(c) 151:O. 39 r. 1.
HEADNOTE:
M filed a suit at Asansol against H for
recovery of money. Later, H filed a counter suit
at Indore against M for recovery of money. In the
Asansol suit one of the defences raised by H was
that the Asansol court had no jurisdiction to
entertain the suit. H applied to the Asansol court
to stay the suit but the court refused the prayer.
An appeal to the Calcutta High Court against the
refusal to stay was dismissed with the direction
that the preliminary issue of jurisdiction should
be disposed of by the trial court immediately.
Thereupon, H applied to the Indore court for an
injunction to restrain M from proceeding with the
Asansol suit pending the disposal of the Indore
suit and the court purporting to act under O. 39
Code of Civil Procedure granted the injunction. M
appealed to the Madhya Bharat High Court which
dismissed the appeal holding that though O. 39 was
not applicable to the case the order of injunction
could be made under the inherent powers of the
court under s. 151 Code of Civil Procedure.
^
Held, that the order of injunction was
wrongly granted and should be vacated.
Per, Wanchoo, Das Gupta, and Dayal,JJ.-The
Civil courts had inherent power to issue temporary
injunctions in cases which were not covered by the
provisions of O. 39 Civil Procedure Code. The
provisions of the Code were not
451
exhaustive. There was no prohibition in s. 94
against the grant of a temporay injunction in
circumstances not covered by O. 39. But inherent
powers were not to be exercised when their
exercise was in conflict with the express
provisions of the Code or was against the
intention of the legislature. Such powers were to
be exercised in very exceptional circumstances. A
plaintiff of a suit in another jurisdiction could
only be restrained from proceeding with his suit
if the suit was vexatious and useless. It was not
so in the present case. It was proper that the
issue as to jurisdiction should be decided by the
Asansol court as directed by the Calcutta High
Court. The Indore court could not decide this
issue. Beside, it was open to the Asansol court to
ignore the order of the Indore court and to
proceed with the suit. This would place M in an
impossible position. An order of a court should
not lead to such a result.
Varadacharlu v. Narsimha Charlu, A.I.R. 1926
Mad.258; Govindarajalu v. Imperial Bank of India,
A.I.R. 1932 Mad. 180 ; Karuppayya v. Ponnuswami,
A.I.R. 1933 Mad. 500(2); Murugesa Mudali v.
Angamuthu Madali, A.I.R. 1938 Mad. 190 and
Subramanian v. Seetarama, A.I.R. 1940 Mad. 104,
not approved.
Dhaneshwar Nath v. Ghanshyam Dhar, A.I.R.
1940 All.185, Firm Richchha Ram v. Firm Baldeo
Sahai, A.I.R. 1940 All.241, Bhagat Singh v. Jagbir
Sawhney, A.I.R. 1941 Cal. 670 and Chinese Tannery
Owners' Association v. Makhan Lal, A.I.R. 1952
Cal. 550, approved.
Padam Sen v. State of U.P. [1961] 1 S. C. R.
884, Cohen v. Rothfield, L. R. [1919] 1 K. B. 410
and Hyman v. Helm, L. R.(1883) 24 Ch. D. 531,
relied on.
Per, Shah, J.-Civil courts have no inherent
power to issue injunctions in case not covered by
O. 39, rr. 1 and 2 Code of Civil Procedure. The
power of civil courts, other than Chartered High
Courts, to issue injunctions must be found within
the terms of s. 94 and O. 39, rr. 1 and 2. Where
an express provision is made to meet a particular
situation the Code must be observed and departure
therefrom is not permissible. Where the Code deals
expressly with a particular matter the provision
should normally be regarded as exhaustive.
Padam Sen v. State of U. P. [1961] 1 S. C. R.
884, relied upon.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 346 of 1958.
452
Appeal by special leave from the judgment and
order dated May 10, 1955, of the former Madhya
Bharat High Court in Misc. Appeal No. 26 of 1954.
S. N. Andley, Rameshwar Nath and P. L. Vohra,
for the appellant.
S. T. Desai, K. B. Bhatt and B. R. L.
Iyengar, for the respondent.
1961. November 16. The Judgment of Wanchoo,
Das Gupta and Dayal,JJ., was delivered by Dayal J.
Shah J., delivered a separate Judgment.
RAGHUBUR DAYAL, J.-The appellant and the
respondent entered into a partnership at Indore
for working coal mines at Kajora gram (District
Burdwan) and manufacture of cement etc., in the
name and style of ‘Diamond Industries’. The head
office of the partnership was at Indore. The
partnership was dissolved by a deed of dissolution
dated August 22, 1945. Under the terms of this
deed, the appellant made himself liable to render
full, correct and true account of all the moneys
advanced by the respondent and also to render
accounts of the said partnership and its business,
and was held entitled to 1/4th of Rs. 4,00,000/-
solely contributed by the respondent toward the
capital of the partnership. He was, however, not
entitled to get this amount unless and until he
had rendered the accounts and they had been
checked and audited.
The second proviso at the end of the
convenants in the deed of dissolution reads:
“Provided however and it is agreed by
and between the parties that as the parties
entered into the partnership agreement at
Indore (Holker State) all disputes and
differences whether regarding money or as to
the relationship or as to their rights and
liabilities of the parties hereto in respect
of the
453
partnership hereby dissolved or in respect of
question arising by and under this document
shall be decided amicably or in court at
Indore and at nowhere else.”
On September 29, 1945, a registered letter on
behalf of the respondent was sent to the
appellant. This required the appellant to explain
to and satisfy the respondent at Indore as to the
accounts of the said colliery within three months
of the receipt of the notice. It was said in the
notice that the accounts submitted by the
appellant had not been properly kept and that many
entries appeared to be wilfully falsified,
evidently with malafide intentions and that there
appeared in the account books various false and
fictitious entries causing wrongful loss to the
respondent and wrongful gain to the appellant. The
appellant sent a reply to this notice on December
5, 1935, and denied the various allegations, and
requested the respondent to meet him at Asansol or
Kajoraram on any day suitable to him, within ten
days from the receipt of that letter.
On August 18, 1948, the appellant instituted
Suit M. S. No. 33 of 1948 in the Court of the
Subordinate Judge at Asansol against the
respondent for the recovery of Rs. 1,00,000/- on
account of his share in the capital and assests of
the partnership firm ‘Diamond Industries’ and Rs.
18,000/- as interest for detention of the money or
as damages or compensation for wrongful
withholding of the payment. In the plaint he
mentioned about the respondent’s notice and his
reply and to a second letter on behalf of the
respondent and his own reply thereto. A copy of
the deed of dissolution, according to the
statement in paragraph 13 of the plaint, was filed
along with it.
On October 27, 1948, respondent filed a
petition under s. 34 of the Arbitration Act in the
Asansol Court praying for the stay of the suit in
454
view of the arbitration agreement in the original
deed of partnership. This application was rejected
on August 20, 1949.
Meanwhile, on January 3, 1949, the respondent
filed Civil Original Suit No. 71 of 1949 in the
Court of the District Judge, Indore, against the
appellant, and prayed for a decree for Rs.
1,90,519-0-6 against the appellant and further
interest on the footing of settled accounts and in
the alternative for a direction to the appellant
to render true and full accounts of the
partnership.
On November 28, 1949, the respondent filed
his written statement in the Asansol Court.
Paragraphs 19 and 21 of the written statement are:
“19. With reference to paragraph 21 of
the plaint, the defendant denies that the
plaintiff has any cause of action against the
defendant or that the alleged cause of
action, the existence of which is denied,
arose at Kajora Colliery. The defendant
craves reference to the said deed of
dissolution whereby the plaintiff and the
defendant agreed to have disputes, if any,
tried in the Court at Indore. In the
circumstances, the defendant submits that
this Court has no jurisdiction to try and
entertain this suit.
21. The suit is vexatious, speculative,
oppressive and is instituted malafide and
should be dismissed with costs.”
Issues were struck on February 4, 1950. The first
two issues are:
“1. Has this Court jurisdiction to
entertain and try this suit?
2. Has the plaintiff rendered and
satisfactorily explained the accounts of the
partnership in terms of the deed of
dissolution of partnership ?”
455
In December 1951, the respondent applied in
the Court at Asansol for the stay of that suit in
the exercise of its inherent powers. The
application was rejected on August 9, 1952. The
learned Sub-Judge held:
“No act done or proceedings taken as of
right in due course of law is ‘an abuse of
the process of the Court’ simply because such
proceeding is likely to embarass the other
party.”
He therefore held that there could be no scope for
acting under s. 151, Code of Civil Procedure, as
s. 10 of that Code had no application to the suit,
it having been instituted earlier than the suit at
Indore. The High Court of Calcutta confirmed this
order on May 7, 1953, and said:
“We do not think that, in the
circumstance of these cases and on the
materials on record, those orders ought to be
revised. We would not make any other
observation lest it might prejudice any of
the parties.”
The High Court further gave the following
direction:
“As the preliminary issue No.1 in the
two Asansol suits have been pending for over
two years, it is only desirable that the said
issues should be heard out at once. We would,
accordingly, direct that the hearing of the
said issues should be taken up by the learned
Subordinate Judge as expeditiously as
possible and the learned Subordinate Judge
will take immediate steps in that direction.”
Now we may refer to what took place in the
Indore suit till then. On April 28, 1950, the
appellant applied to the Indore Court for staying
that suit under ss. 10 and 151 Code of Civil
Procedure.
456
The application was opposed by the respondent on
three grounds. The first ground was that according
to the term in the deed of dissolution, that Court
alone could decide the disputes. The second was
that under the provisions of the Civil Procedure
Code in force in Madhya Bharat, the court at
Asansol was not an internal Court and that the
suit filed in Asansol Court could not have the
effect of staying the proceedings of that suit.
The third was that the two suits were of different
nature, their subject matter and relief claimed
being different. The application for stay was
rejected on July 5, 1951. The Court mainly relied
on the provisions of the Second proviso in the
deed of dissolution. The High Court of Madhya
Bharat confirmed that order on August 20, 1953.
The position then, after August 20, 1953, was
that the proceedings in both the suits were to
continue, and that the Asansol Court had been
directed to hear the issue of jurisdiction at an
early date.
It was in these circumstances that the
respondent applied under s. 151, Code of Civil
Procedure on September 14, 1953, to the Indore
Court, for restraining the appellant from
continuing the proceedings in the suit filed by
him in the Court at Asansol. The respondent
alleged that the appellant filed the suit at
Asansol in order to put him to trouble, heavy
expenses and wastage of time in going to Asansol
and that he was taking steps for the continuance
of the suit filed in the Court of the Subordinate
Judge of Asansol. The appellant contested this
application and stated that he was within his
rights to institute the suit at Asansol, that that
Court was competent to try it and that the point
had been decided by overruling the objections
raised by the respondent and that the respondent’s
objection for the stay or
457
proceedings in the Court at Asansol had been
rejected by that Court. He denied that his object
in instituting the suit was to cause trouble and
heavy expenses to the respondent.
It may be mentioned that the respondent did
not state in his application that his application
for the stay of the suit at Asansol had been
finally dismissed by the High Court of Calcutta
and that that Court had directed the trial Court
to decide the issue of jurisdiction at an early
date. The appellant, too, in his objection, did
not specifically state that the order rejecting
the respondents’s stay application had been
confirmed by the High Court at Calcutta and that
that Court had directed for an early hearing of
the issue of jurisdiction.
The learned Additional District Judge,
Indore, issues interim injunction under O. XXXIX,
Code of Civil Procedure, to the appellant
restraining him from proceeding with his Asansol
suit pending decision of the Indore suit, as the
appellant was proceeding with the suit at Asansol
in spite of the rejection of his application for
the stay of the suit at Indore, and , as the
appellant wanted to violate the provision in the
deed of dissolution about the Indore Court being
the proper forum for deciding the dispute between
the parties. Against this order, the appellant
went in appeal to the High Court of Judicature at
Madhya Bharat, contending that the Additional
District Judge erred in holding that he was
competent to issue such an interim injunction to
the appellant under O. XXXIX of the Code of Civil
Procedure and that it was a fit case for the issue
of such an injunction and that, considering the
provisions of O. XXXIX, the order was without
jurisdiction.
The High Court dismissed the appeal by its
order dated May 10, 1955. The learned Judges
agreed with the contention that O. XXXIX, r. 1 did
not
458
apply to the facts of the case. They, however,
held that the order of injunction could be issued
in the exercise of the inherent powers of the
Court under s. 151, C.P.C. It is against this
order that the appellant has preferred this
appeal, by special leave.
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 s. 94 and
O.XXXIX. The other question is whether the Court,
in the exercise of its inherent jurisdiction,
exercised its discretion properly, keeping in mind
the facts of the case. The third point which came
up for discussion at the hearing related to the
legal effect of the second proviso in the deed of
dissolution on the maintainability of the suit in
the Court at Asansol.
We do not propose of express any opinion on
this question of jurisdiction as it is the subject
matter of an issue in the suit at Asansol and also
in the suit at Indore and because that issue had
not yet been decided in any of the two suits.
On the first question it is argued for the
appellant that the provisions of cl. (c) of s. 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 s. 2, means
‘prescribed by rules’ and that rr. 1 and 2 of
O.XXXIX lay down certain circumstances in which a
temporary injunction may be issued.
There is difference of opinion between the
High Court on this point. One view is that a Court
459
cannot issue an order of temporary injunction if
the circumstances do not fall within the
provisions of Order XXXIX of the Code:
Varadacharlu v. Narsimha Charlu (1), Govindarajulu
v. Imperial Bank of India (2), Karuppayya v.
Ponnuswami (3), Murugesa Mudali v. Angamuthu
Mudali (4) and Subramanian v. Seetarama (5). The
other view is that a Court can issue an interin
injunction under circumstances which are not
covered by Order XXXIX of the Code, if the Court
is of opinion that the interests of justice
require the issue of such interin injunction:
Dhaneshwar Nath v. Ghanshyam Dhar (6), Firm
Bichchha Ram v. Firm Baldeo Sahai (7),Bhagat Singh
v. jagbir Sawhney (8) and Chinese Tannery owners’
Association v. Makhan Lal (9). 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 O.XXXIX, Code of
Civil Procedure. There is no such expression in s.
94 which expressly prohibits the issue of a
temporary injunction in circumstances not covered
by O. 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 s. 94
460
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 s. 94
of the Code have their effect and not in taking
away the right of the Court to exercise its
inherent powers.
There is nothing in O. XXXIX, rr. 1 and 2,
which provide specifically that a temporary
injunction is not to be issued 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 s. 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
prevent 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
powers under s. 151 of the Code in circumstances
not covered by s. 75 and Order XXVI, arose in
Padam Sen v. The State of Uttar Pradesh (1) 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
461
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 s. 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 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.
In the above case, this Court did not uphold
the order of the Civil Court, not coming under the
provisions of order XXVI, appointing a
commissioner for seizing the account books of the
plaintiff on the application of the defandants.
The order was held to be defective not because the
Court had no power to appoint a commissioner in
circumstances not covered by s. 75 and O. XXVI,
but because the power was exercised not with
respect to matters of procedure but with respect
to a matter affecting the substantive rights of
the plaintiff. This is clear from the further
observations made at page 887. This Court said:
“The question for determination is whether
the impugned order of the Additional Munsif
appointing Shri Raghubir Pershad Commissioner
for seizing the plaintiff’s books of account
462
can be said to be an order which is passed by
the Court in the exercise of its inherent
powers. The inherent powers saved by s. 151
of the Code are with respect to the procedure
to be followed by the Court in deciding the
cause before it. These powers are not powers
over the substantive rights which any
litigant possesses. Specific powers have to
be conferred on the Courts for passing such
orders which would affect such rights of a
party. Such powers cannot come within the
scope of inherent powers of the Court in
matters of procedure, which powers have their
source in the Court possessing all the
essential powers to regulate its practice and
procedure.”
The case reported as Maqbul Ahmad Pratap
Narain Singh does not lay down that the inherent
powers of the Court are controlled by the
provisions of the Code. It simply holds that the
statutory discretion possessed by a Court in some
limited respects under an Act does not imply that
the Court possesses a general discretion to
dispense with the provisions of that Act. In that
case, an application for the preparation of a
final decree was presented by the decree-holder
beyond the period of limitation prescribed for the
presentation of such an application. It was
however contended that the Court possessed some
sort of judicial discretion which would enable it
to relieve the decree-holder from the operation of
the Limitation Act in a case of hardship. To rebut
this contention, it was said at page 87:
“It is enough to say that there is no
authority to support the proposition
contended for. In their Lordships’ opinion it
is impossible to hold that, in a matter which
is governed by Act, an Act which in some
limited respects gives the Court a statutory
discretion, there can be
463
implied in the Court, outside the limits of
the Act, a general discretion to dispense
with its provisions. It is to be noted that
this view is supported by the fact that s. 3
of the Act is peremptory and that the duty of
the Court is to notice the Act and give
effect to it, even though it is not referred
to in the pleadings”.
These observations have no bearing on the question
of the Court’s exercising its inherent powers
under s. 151 of the Code. The section itself says
that nothing in the Code shall be deemed to limit
or otherwise affect the inherent power of the
Court to make orders necessary for the ends of
justice. In the face of such a clear statement, it
is not possible to hold that the provisions of the
Code control the inherent power by limiting it or
otherwise affecting it. The inherent power has not
been conferred upon the Court; it is a power
inherent in the Court by virtue of its duty to do
justice between the parties before it.
Further, when the Code itself recognizes the
existence of the inherent power of the Court,
there is no question of implying any powers
outside the limits of the Code.
We therefore repel the first contention
raised for the appellant.
On the second question, we are of opinion
that in view of the facts of the case, the Courts
below were in error in issuing a temporary
injunction to the appellant restraining him from
proceeding with the suit in the Asansol Court.
The inherent powers are to be exercised by
the Court in very exceptional circumstances, for
which the Code lays down no procedure.
The question of issuing an order to a party
restraining him from proceeding with any other
suit in a regularly constituted Court of law
deserves
464
great care and consideration and such an order is
not to be made unless absolutely essential for the
ends of justice.
In this connection, reference may usefully be
made to what was said in Cohen v. Rothfield (1)
and which case appears to have influenced the
decision of the Courts in this country in the
matter of issuing such injunction orders.
Scrutton, L. J., said at page 413:
“Where it is proposed to stay an action
on the ground that another is pending, and
the action to be stayed is not in the Court
asked to make the order, the same result is
obtained by restraining the person who is
bringing the second action from proceedings
with it. But, as the effect is to interfere
with proceedings in another jurisdiction,
this power should be exercised with great
caution to avoid even the appearance of undue
interference with another Court”.
And again, at page 415:
“While, therefore, there is jurisdiction
to restrain a defendant from suing abroad, it
is a jurisdiction very rarely exercised, and
to be resorted to with great care and on
ample evidence produced by the applicant that
the action abroad is really vexatious and
useless.”
The principle enunciated for a plaintiff in a
earlier instituted suit to successfully urge a
restraint order against a subsequent suit
instituted by the defendant, is stated thus in
this case, at page 415:
“It appears to me that unless the
applicant satisfies the Court that no
advantage can be gained by the defendant by
proceeding with the action in which he is
plaintiff in another part of the King’s
dominions, the Court should not stop him from
proceeding
465
with the only proceedings which he, as
plaintiff, can control. The principle has
been repeatedly acted upon.”
The injunction order in dispute is not based on
any such principle. In fact, in the present case,
it is the defendant of the previously instituted
suit that has obtained the injunction order
against the plaintiff of the previously instituted
suit.
The considerations which would make a suit
vexatious are well explained in Hyman v. Helm (1).
In that case, the defendant, in an action before
the Chancery Division of the High Court brought an
action against the plaintiffs in San Francisco.
The plaintiffs, is an action in England, prayed to
the Court to restrain the defendants from
proceeding further with the action in San
Francisco. It was contended that it was vexatious
for the defendants to bring the action in San
Francisco as the witnesses to the action were
residents of England, the contract between the
parties was an English contract and that its
fulfilment took place is England. In repelling the
contention that the defendants’ subsequent action
in San Francisco was vexatious, Brett, M. R., said
at page 537:
“If that makes an action vexatious it
would be a ground for the interference of the
Court, although there were no action in
England at all, the ground for alleging the
action in San Francisco to be vexatious being
that it is brought in an inconvenient place.
But that is not the sort of vexation on which
an English Court can act.
It seems to me that where a party claims
this interference of the Court to stop
another action between the same parties, it
lies upon him to shew to the Court that the
multiplicity of actions is vexatious, and
that the whole burden of proof lies upon him.
He does not satisfy that burden of proof by
merely she-
466
wing that there is a multiplicity of actions,
he must go further. If two actions are
brought by the same plaintiff against the
same defendant in England for the same cause
of action, then, as was said in Mchonry v.
Lewis (22 Ch. D. 397) and the case of the
Peruvian Guano Company v. Bockwoldt (23 Ch.
D. 225), prima facie that is vexatious, and
therefore the party who complains of such a
multiplicity of actions had made out a prima
facie case for the interference of the Court.
Where there is an action by a plaintiff in
England, and a crossaction by a defendant in
England, whether the same prima facie case of
vaxation arises is a much more difficult
point to decide and I am not prepared to say
that it does.”
It should be noticed that this question for an
action being vexatious was being considered with
respect to the subsequent action brought by the
defendant in the previously instituted suit and
when the restraint order was sought by the
plaintiff of the earlier suit. In the case before
us, it is the plaintiff of the subsequent suit who
seeks to restrain the plaintiff of the earlier
suit from proceeding with his suit. This cannot be
justified on general principles when the previous
suit has been instituted in a competent Court.
The reasons which weighed with the Court
below for maintaining the order of injunction may
be given in its own words as follows:
“In the plaint filed in the Asansol
Court the defendant has based his claim on
the deed of dissolution dated 22, 1945, but
has avoided all references to the provisions
regarding the agreement to place the disputes
before the Indore Courts. It was an action
taken by the present defendant in
anticipation of the present suit and was
taken in flagrant breach
467
of the terms of the contract. In my opinion,
the defendant’s action constitutes misuse and
abuse of the process of the Court.”
The appellant attached the deed of dissolution to
the plaint he filed at Asansol. Of course, he did
not state specifically in the plaint about the
proviso with respect to the forum for the decision
of the dispute. Even if he had mentioned the term,
that would have made no difference to the Asansol
Court entertaining the suit, as it is not disputed
in these proceedings that both the Indore and
Asansol Courts could try the suit in spite of the
agreement. The appellant’s institution of the suit
at Asansol cannot be said to be in anticipation of
the suit at Indore, which followed it by a few
months. There is nothing on the record to indicate
that the appellant knew, at the time of his
instituting the suit, that the respondent was
contemplating the institution of a suit at Indore.
The notices which the respondent gave to the
appellant were in December 1945. The suit was
filed at Asansol in August 1948, more than two
years and a half after the exchange of
correspondence referred to in the plaint filed at
Asansol.
In fact, it is the conduct of the respondent
in applying for the injunction in September 1953,
knowing full well of the order of the Calcutta
High Court confirming the order refusing stay of
the Asansol suit and directing that Court to
proceed with the decision of the issue of
jurisdiction at an early date, which can be said
to amount to an abuse of the process of the Court.
It was really in the respondent’s interest if he
was sure of his ground that the issue of
jurisdiction be decided by the Asansol Court
expeditiously, as ordered by the Calcutta High
Court in May 1953. If the Asansol Court had
clearly no jurisdiction to try the suit in view of
the terms of the deed of dissolution, the decision
of that issue
468
would have finished the Asansol suit for ever. He,
however, appears to have avoided a decision of
that issue from that Court and, instead of
submitting to the order of the Calcutta High
Court, put in this application for injunction. It
is not understandable why the appellant did not
clearly state in his objection to the application
what the High Court of Calcutta had ordered. That
might have led the consideration of the question
by the Indore Court in a different perspective.
It is not right to base an order of
injunction, under s. 151 of the Code, restraining
the plaintiff from proceeding with his suit at
Asansol, on the consideration that the terms of
the deed of dissolution between the parties make
it a valid contract and the institution of the
suit at Asansol is in breach of it. The question
of jurisdiction of the Asansol Court over the
subject matter of the suit before it will be
decided by that Court. The Indore Court cannot
decide that question. Further, it is not for the
Indore Court to see that the appellant observes
the terms of the contract and does not file the
suit in any other Court. It is only in proper
proceedings when the Court considers alleged
breach of contract and gives redress for it.
For the purposes of the present appeal, we
assume that the jurisdiction of the Asansol Court
is not ousted by the provisions of the proviso in
the deed of dissolution, even though that proviso
expresses the choice of the parties for having
their disputes decided in the Court at Indore. The
appellant therefore could choose the forum in
which to file his suit. He chose the Court at
Asansol, for his suit. The mere fact that Court is
situate at a long distance from the place of
residence of the respondent is not sufficient to
establish that the suit has been filed in that
Court in order to put the respondent to trouble
and harassment and to unnecessary expense.
469
It cannot be denied that it is for the Court
to control the proceedings of the suit before it
and not for a party, and that therefore, an
injunction to a party with respect to his taking
part in the proceedings of the suit would be
putting that party in a very inconvenient
position.
It has been said that the Asansol Court would
not act in a way which may put the appellant in a
difficult position and will show a spirit of
cooperation with the Indore Court. Orders of Court
are not ordinarily based on such considerations
when there be the least chance for the other Court
not to think in that way. The narration of facts
will indicate how each Court has been acting on
its own view of the legal position and the conduct
of the parties.
There have been case in the past, though few,
in which the Court took no notice of such
injunction orders to the party in a suit before
them. They are: Menon v. Parvathi Ammal(1),
Harbhagat Kaur v. Kirpal Singh (2) and Shiv Charan
Lal v. Phool Chand (3). In the last case, the Agra
Court issued an injunction against the plaintiff
of a suit at Delhi restraining him from proceeding
with that suit. The Delhi Court, holding that the
order of the Agra Court did not bind it, decided
to proceed with the suit. This action was
supported by the High Court. Kapur J., observed at
page 248:
“On the facts as have been proved it
does appear rather extra-ordinary that a
previously instituted suit should be sought
to be stayed by adopting this rather
extraordinary procedure.”
It is admitted that the Indore Court could
not have issued an induction or direction to the
Asansol Court not to proceed with the suit. The
effect of issuing an injunction to the plaintiff
of the
470
suit at Asansol, indirectly achieves the object
which an injunction to the Court would have done.
A court ought not to achieve indirectly what it
cannot do directly. The plaintiff, who has been
restrained, is expected to bring the restraint
order to the notice of the Court. If that Court,
as expected by the Indore Court, respects the
injunction order against the appellant and does
not proceed with the suit, the injunction order
issued to the appellant who is the plaintiff in
that suit is as effective an order for arresting
the progress of that suit as an injunction order
to the Court would have been. If the Court insists
on proceeding with the suit, the plaintiff will
have either to disobey the restraint order or will
run the risk of his suit being dismissed for want
of prosecution. Either of these results is a
consequence which an order of the Court should not
ordinarily lead to.
The suit at Indore which had been instituted
later, could be stayed in view of s. 10 of the
Code. The provisions of that section are clear,
definite and mandatory. A Court in which a
subsequent suit has been filed is prohibited from
proceeding with the trial of that suit in certain
specified circumstances. When there is a special
provision in the Code of Civil Procedure for
dealing with the contingencies of two such suits
being instituted, recourse to the inherent powers
under s. 151 is not justified. The provisions of
s. 10 do not become inapplicable on a Court
holding that the previously instituted suit is a
vexatious suit or has been instituted in violation
of the terms of the contract. It does not appear
correct to say, as has been said in Ram Bahadur v.
Devidayal Ltd. (1) that the Legislature did not
contemplate the provisions of s. 10 to apply when
the previously instituted suit be held to be
instituted in those circumstances. The provisions
of s. 35A indicate that the Legislature was aware
of false or vexatious claims or defences
471
being made, in suits, and accordingly provided for
compensatory cost. The Legislature could have
therefore provided for the non-application of the
provisions of s. 10 in those circumstances, but it
did not. Further, s. 22 of the Code provides for
the transfer of a suit to another Court when a
suit which could be instituted in any one of two
or more Courts is instituted in one of such
Courts. In view of the provisions of this section,
it was open to the respondent to apply for the
transfer of the suit at Asansol to the Indore
Court and, if the suit had been transferred to the
Indore Court, the two suits could have been tried
together. It is clear, therefore, that the
Legislature had contemplated the contingency of
two suits with respect to similar reliefs being
instituted and of the institution of a suit in one
Court when it could also be instituted in another
Court and it be preferable, for certain reasons,
that the suit be tried in that other Court.
In view of the various considerations stated
above, we are of opinion that the order under
appeal cannot be sustained and cannot be said to
be an order necessary in the interests of justice
or to prevent the abuse of the process of the
Court. We therefore allow the appeal with costs,
and set aside the order restraining the appellant
from proceeding with the suit at Asansol.
SHAH, J.-I have perused the judgment
delivered by Mr. Justice Dayal. I agree with the
conclusion that the appeal must succeed but I am
unable to hold that civil courts generally have
inherent jurisdiction in cases not covered by rr.
1 and 2 of O. 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 Chartertd
High Courts, in the exercise of their ordinary
original Civil jurisdiction to issue temporary
injunctions are defined by the terms of s.
94(1)(c) and
472
O. 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
O. 39 rr. 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
transgressing the limits prescribed by the rule.
It is true that the High Courts constituted
under Charters and exercising ordinary original
jurisdiction do exercise inherent jurisdiction to
issue an injunction to restrain parties in a suit
before them from proceedings with a suit in
another court, but that is because the Chartered
High Courts claim to have inherited this
jurisdiction from the Supreme Courts of which they
were successors. This jurisdiction would be saved
by s. 9 of the Charter Act (24 and 25 Vict. c.
104) of 1861, and in the Code of Civil Procedure,
1908 it is expressly provided by s. 4. But the
power of the civil courts other than the Chartered
High Courts must be found within s. 94 and O. 39
rr. 1 and 2 of the Civil Procedure Code.
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 L. R.
62 I. A. 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
473
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 s. 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.
Power to issue an injunction is restricted by
s. 94 and O. 39, and it is not open to the civil
court which is not a Chartered High Court to
exercise that power ignoring the restriction
imposed there by, in purported exercise of its
inherent jurisdiction. The decision of this Court
in Padam Sen v. The State of Uttar Pradesh(1) does
not assist the case of the appellant. In Padam
Sen’s case this Court was called upon is a
original appeal to consider whether an order of a
Munsiff appointing a commissioner for seizing
certain account books of the plaintiff in a suit
pending before the Munsiff was an order authorised
by law. It was the case for the prosecution that
the appellants offered a bribe to the commissioner
as consideration for being allowed to tamper with
entries therein, and thereby the appellants
committed an offence punishable under s. 165A of
the Indian Penal Code. This Court held that the
commissioner appointed by the civil court in
exercise of powers under O. 26 C. P. Code did not
hold any office as a public servant and the
appointment by the Munsiff being without
jurisdiction, the commissioner could not be deemed
to be a public servant. In dealing with the
argument of counsel for the appellants that the
civil court had inherent powers to appoint a
commissioner in exercise of authority under s. 151
Civil Procedure Code for purposes which do not
fall
474
within the provisions of s. 75 and O. 26 Civil
Procedure Code, the Court observed:
“Section 75 of the Code empowers the
Court to issue a commission, subject to
conditions and limitations which may be
prescribed, for four purposes, viz., for
examining any person, for making or adjusting
accounts and for making a partition. Order
XXVI lays down rules relating to the issue of
commissions and allied matters. Mr.
Chatterjee, learned counsel of the
appellants, has submitted that the powers of
a Court must be found within the four corners
of the Code and that when the Code has
expressly dealt with the subject matter of
commissions in s. 75 the Court cannot invoke
its inherent powers under s. 151 and thereby
add to its powers. On the other hand, it is
submitted for the State, that the Code is not
exhaustive and the Court, in the exercise of
its inherent powers, can adopt any procedure
not prohibited by the Code expressly or by
necessary implication if the Court considers
it necessary for the ends of justice or to
prevent abuse of the process of the Court.
x x x x x x x x
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 purposes mentioned in
s. 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.
It is also well recognized that the inherent
power is not to be exercised in a manner
which will be
475
contrary or different from the procedure
expressly provided in the Code.”
The Court in that case held that in exercise of
the powers under s. 151 of the Code of Civil
Procedure, 1908 the Court cannot issue a
commission for seizing books of account of
plaintiff-a purpose for which a commission is not
authorized to be issued by s. 75.
The principle of the case is destructive of
the submission of the appellants. Section 75
empowers the Court to issue a commission for
purposes specified therein: even though it is not
so expressly stated that there is no power to
appoint a commissioner for other purposes, a
prohibition to that effect is, in the view of the
Court in Padam Sen’s case, implicit in s. 76. By
parity of reasoning, if the power to issue
injunctions may be exercised, if it is prescribed
by rules in the Orders in Schedule I, it must he
deemed to be not exercisable in any other manner
or for purposes other than those set out in O. 39
rr. 1 and 2.
Appeal allowed.