JUDGMENT
U.L. Bhat, C.J.
1. This appeal is directed against the interim ex parte order of injunction granted in a suit, namely, T.S. 32/91 against defendant (appellant) at the instance of the plaintiff (respondent) by the Assistant District Judge No. 2, Gauhati.
2. Respondent issued four cheques to the appellant in connection with a transaction between them. Appellant presented the same to the Banker but they were returned with the endorsement “refer to the drawer”. According to the appellant cheques were represented on two further occasion on instructions of the respondent and were dishonoured. The appellant thereupon issued registered notice dated 7-6-91 to the respondent demanding payment, as contemplated under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). The suit was filed on 5-7-91 praying for two declaratory reliefs, namely, (1) declaration that the appellant is not entitled to receive any amount from the respondent, and (2) declaration that provisions of Section 138 of the Act are not applicable in the matter of four cheques. Respondent also filed an interlocutory application being Misc. Case No. 29/91 under Order 39, Rule 1, C.P.C. seeking an order of injunction restraining the appellant from instituting any proceeding under Section 138 of the Act in relation to the four cheques. The lower Court passed an interim ex parte order of injunction on 5-7-91. This order is now challenged. We have heard both sides.
2A. An appeal against an order of interim ex parte injunction would lie under Order 43, Rule 1(r), C.P.C. but the appellate Court would not ordinarily admit the appeal in the light
of Order 41, Rule 11, C. P.C. in the absence of exceptional circumstances. The manner in which the ex parte order has been passed in this case and the contents of the impugned order, which clearly indicate that the lower court was not conversant with the relevant principles of law, has pursuaded us to admit the appeal and hear the parties.
3. The impugned order restrains the appellant “from instituting such proceeding under Section 138 of the Negotiable Instruments Act, 1881”. A proceeding under Section 138 is not a civil proceeding but a criminal proceeding in relation to an offence punishable under Section 138. The impugned order would suggest that the lower Court was not aware of this important circumstance.
4. The lower Court before passing the impugned order should have paused for a moment and referred to the provisions of Order 39, Rule 1, C.P.C. and Section 41 of the Specific Relief Act, 1963. If these provisions, in particular the provisions of Section 41, had been adverted to, perhaps the lower Court would not have misled itself into granting the impugned order.
5. There is dispute between the parties regarding the nature of transaction between them, as to the circumstance under and the purpose for which the cheques were issued. That being so it is open to either of the parties to seek remedy in a civil Court and if such remedy is sought, the Civil Court is bound to give a decision. If, however, either of the parties seeks recourse to a competent criminal Court, there is no reason why the criminal court should be restrained from examining the complaint in the light of Section 138 of the Act and in accordance with the provisions of the Code of Criminal Procedure. Section 41 of the Specific Relief Act, 1963 lays down in what cases injunction cannot be granted. Under Clause (a) an injunction cannot be granted to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. The Legislature enacted the bar and also the exception. According to Clause (b), an
injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. According to Clause (d) injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a criminal matter.
6. Learned counsel for the respondent contended that the above provisions apply only in regard to the decree to be passed in a suit and not in respect of pendente lite order of injunction. An interim or temporary relief can be granted only in aid of, and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceedings. If the power to grant temporary relief is conferred to achieve such a purpose, it cannot be that the temporary relief can be granted in a case where a final relief of a similar nature cannot be granted on account of statutory bar. If the provisions of Section 41 of the Specific Relief Act prohibit the grant of decree or injunction in cases covered thereunder, it must necessarily follow that the court cannot grant a temporary relief of a similar nature. We are fortified in this view by the decision of the Supreme Court in State of Orissa v. Madan Gopal Gungta AIR 1952 SC 12 followed in Cotton Corporation of India Limited v. United Industrial Bank Limited, AIR 1983 SC 1272.
7. The case in hand falls squarely under Clause (b) as well as Clause (d) of Section 41 of the Specific Relief Act, 1963. The lower Court in which the civil suit is pending and the criminal court in which the appellant may choose to file a criminal complaint are not in the same hierarchy of Courts. The criminal court is not subordinate to the civil Court in the instant case. That being so, Clause (b), which bars an injunction being granted to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought, clearly applies to the facts of the case. Since what is sought to be restrained is institution of any proceeding in criminal matter, the bar under Clause (d) is also attracted. Hence the lower Court could not
have passed the impugned order of injunction.
8. It is contended by learned counsel for the respondent that the Civil Court can examine the applicability of Section 138 of the Act to the facts of the case since a declaratory relief in that behalf has been claimed. Since the matter has to be considered by the civil Court in the suit, we do not propose to express any opinion in this behalf. For the purpose of this appeal it is sufficient to hold that an order of injunction of the nature issued in this case cannot be granted and the hands of the criminal Court cannot be fettered by the civil Court. This is what was held by the Supreme Court in Cotton Corporation of India Limited in a case which attracted Clause (b) of Section 41 of the Specific Relief Act, 1963. The Supreme Court observed : (at page 1276 of AIR):
“The Legislature manifestly expressed its mind by enacting Section 41(b) in such clear and unambiguous language that an injunction cannot be granted to restrain any person, the language takes care of injunction acting in personum, from instituting or prosecuting any proceeding in a Court not subordinate to that from which injunction is sought. Section 41(b) denies to the Court the jurisdiction to grant an injunction restraining any person from instituting or prosecuting any proceeding in a Court which is not subordinate to the Court from which the injunction is sought”.
The above principle would apply also to a case governed by Clause (d) of Section 41.
9. The lower Court was in serious error in granting interim ex parte order of injunction. The lower Court should have refrained from passing an ex parte order and should have ordered notice to the defendants in which case a palpably erroneous order of this nature would not have been passed. We, therefore, set aside the impugned order. Since the matter has been elaborately argued before us and we have taken a view, no useful purpose will be served in proceeding with the injunction application:
10. The appeal is accordingly allowed, but without costs.