IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.343 of 2007
1. UNION OF INDIA, through G.M. (Con), South East Central Railway, Bilashpur,
Madhya Pradesh.
2. Deputy Chief Engineer Con), Balaghat at Nagpur, South East Central Railway,
Nagpur.
---------------------- Defendants/Appellants.
Versus
YOGENDRA SINGH, S/o - Late Triveni Singh, resident of Mahdauli, Subdivision -
Teghra, P.S. - Bhagwanpur, District - Begusarai - 821119.
------------------- Plaintiff/Respondents.
-------
For the appellants : Mr. Bindhyachal Singh, Adv.
Mr. Sushil Kr. Singh, Adv.
For the Respondents : Mr. Pramod Kumar Sinha, Adv.
Mr. Arvind Kumar Sharma, No. 1, Adv.
*********
10. 05.07.2010 This is an appeal preferred against order dated
14.08.2006, passed in Title Suit No. 191/2005, directing the
appellants and other defendants (who are not made party to this
appeal) to maintain status quo till final decision of the suit.
2. As it appears from the submission of learned
counsels appearing on behalf of the parties as well as from the
impugned order that the matter in the suit was involved with
respect to two tenders were published by Head Office of South
East Central Railway for supply and stacking of 56300 cum
machine crushed stone ballast (conforming to specification of
ballast issued by RDSO in January, 1999 corrected upto date).
The plaintiff firm was successfully tendered bid and the tender
was initially accepted, but, at subsequent stage some controversy
arose as regard to initiation of the work and payments etc. giving
rise to filing of the suit. Wherein initially petition under order
XXXIX Rule 1 of the Civil Procedure Code seeking ad interim
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injunction against the defendants restraining them from taking any
coercive steps was filed but, after hearing the parties which was
refused by the court below observing that apprehension of the
plaintiff appears to be imaginary one.
3. It further appears that on the basis of a letter
issued by the authorities, of course, prior to refusal of prayer of
injunction, the plaintiff respondent filed another petition under
Section 94 of the Civil Procedure Code, wherein the court below
after hearing the parties passed the impugned order directing the
defendants to maintain status quo giving rise to this appeal.
4. This appeal has been filed almost delayed by 11
months and it is submitted on behalf of the appellant that since
after passing of the impugned order before filing of the appeal,
several formalities were to be adopted by the Railway which
cause the delay and there was nothing to show that any
intentional delay was caused in preferring the appeal. On the
other hand, learned counsel for the plaintiff respondent
vehemently objected the submissions and contended that the
defendant appellant is not cooperative in early disposal of the suit
and the delay caused in filing of the appeal deserves not to be
condoned since the explanation offered are not satisfactory.
5. The learned counsel for the appellant mainly
contended that once prayer of injunction was refused by the court
below after hearing the parties. It was not open to pass
subsequent order taking shelter of section 94 of the Civil
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Procedure Code, which is not independent provision. On the other
hand, learned counsel for the plaintiff respondent by placing
reliance upon a decision in case of Manohar Lal v. Seth Hiralal
reported in A.I.R. 1962 SC 527 that court below has exercised its
power for which he had jurisdiction.
6. It is also contended on behalf of the appellants that
question of territorial jurisdiction of the court below besides
question of jurisdiction in view of arbitration clause in the
agreement entered into between the parties though has been
mentioned in the impugned order as the points raised by the
defendant-appellants, but, the court below has ignored all such
submissions whereas it was incumbent upon the court below to
decide the issue first and dismiss the subsequent prayer for
injunction. Learned counsel for the plaintiff respondent submitted
that all such issues can be decided at appropriate stage, but, it is
the defendant appellant who is not taking any step and matters
before the court below is lying as it is.
7. It appears from the impugned order that court
below after considering the submissions of the parties and the
materials available earlier refused the prayer of the plaintiff
respondent only on the ground that at the relevant time there was
no material to show that plaintiff had any apprehension of taking
of any coercive step at the hands of defendants appellants and
accordingly earlier petition dated 24.08.2005 was dismissed on
21.06.2006, just before passing such order injunction letter dated
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16.05.2006 issued by Deputy Chief Engineer, Nagpur, giving rise
to filing of the subsequent petition and court below finding that
apprehension of the plaintiff proved true and if order of
maintaining status quo is not passed and plaintiff respondent is
not giving the relief, it shall be against the interest of justice and
he suffer substantial loss taking into consideration all such
aspects and the impugned order was passed. So far contention of
learned counsel for the appellant that second injunction petition is
not maintainable is concerned it has in fact no substance. The
Civil Procedure Code has made provision for issuance of ad
interim injunction under order XXXIX as well as under section 94
of the Civil Procedure Code. Irrespective of these two provisions
the civil courts has inherent jurisdiction also and there is nothing
to prohibit passing any order to protect interest of justice. This
view stands substantiated by the Apex Court in case of Manohar
Lal v. Seth Hiralal reported in A.I.R. 1962 SC 527. The relevant
paragraph 17 to 20 of the decision are as such:
“17. On the first question it is argued for
the appellant that the provisions of cl. (c) of S. 94
C.P.C., make it clear that interim injunctions can be
issued only if a provision 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.
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2, means „prescribed by rules‟ and that rules 1 and
2 or Order XXXIX lay down certain circumstances
in which a temporary injunction may be issued.
18. There is difference of opinion
between the High Courts on this point. One view is
that a Court 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, AIR 1926 Mad
258; Govindarajulu v. Imperial Bank of India, AIR
1932 Mad 180; Karuppayya v. Ponnuswami, AIR
1933 Mad 500(2); Murugesa Mudali v. Angamuthu
Mudali, AIR 1938 Mad 190 and Subramanian v.
Seetarama, AIR 1949 Mad 104. The other view is
that a Court can issue an interim 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
interim injunction: Dhaneshwar Nath v. Ghanshyam
Dhar, AIR 1940 All 185; Firm Bichchha Ram
Baburam v. firm Baldeo Sahai Surajmal, AIR 1940
All 241; Bhagat Singh v. Jagbir Sawhney, AIR 1941
Cal 670 and Chinese Tannery Owners‟ Association
v. Makhan Lal, AIR 1952 Cal 560. We are of
opinion that the latter view is correct and that the
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Courts have inherent jurisdiction to issue temporary
injunctions in circumstances which are not covered
by the provisions of Order XXXIX C.P.C. There is
no such expression in S. 94 which expressly
prohibits the issue of a temporary injunction in
circumstances not covered by Order 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 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
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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
power.
19. There is nothing in Order XXXIX,
rules 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.
20. 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
justice or to prevent abuse of the process of
the Court”.
8. So far question of jurisdiction of the court below is
concerned, it is first to be decided by the court where suit is
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pending and law makers have made provision for determination of
such questions if covered under order XIV Rule 2 of the Civil
Procedure Code, also as preliminary issue, otherwise, all relevant
issues can be decided simultaneously. It is for the defendant
appellant to pursue the court below and obtain appropriate order
there from.
9. This appeal is otherwise barred by limitation also
almost 11 months after passing of the impugned order it has been
preferred and the ground taken is that though certified copy of the
impugned order was made available to learned advocate within 8
days of its passing but, it took almost 2 months in arriving before
the appropriate authorities at Nagpur, and thereafter travelled from
here to there and 4 to 5 months time was taken to engaging
lawyer to represent the authority at this court. All such ground
taken in the I.A. application No. 4198/2007 appears not sufficient
to explain the delay caused.
10. Thus on both counts, I find this appeal has no
merit, accordingly, it is dismissed. Simultaneously, the court below
is directed to proceed expeditiously and preferably dispose of the
suit within a year and if either of the side fails to cooperate deal
with them in accordance with law with iron hands.
(Akhilesh Chandra, J.)
Rajeev/