ORDER
H.K. Sema, J.
1. By this petition under Article 227 of the Constitution of India read with Sections 115 and 151 of the CPC the petitioners have assailed the order dated 8-4-93 passed by the learned Asstt. District Judge-1, Gauhati in Misc. (J) Case No. 36/93 arising out of T.S. No. 81/93 granting ex parte ad interim inj unction on the basis of an application filed by the plaintiffs under Order 39 Rules 1 and 2 of the C.P.C. restraining the petitioners/defendants from acting on the basis of the contract dated 5-4-93.
2. Briefly stated the facts leading to filing of the present petition are as follows :– The petitioner No. 1 is a Pvt. Limited Company registered under the Companies Act having its office at Shanti House, G. S. Road, Ulubari, Guwahati-7 and the petitioner No. 2 is the General Manager of the Company. The petitioners company carries on the business of Tea broking. The petitioners company for the purpose of doing business of tea broking has to collect samples and binds the packets belonging to the clients to be supplied to the buyers to facilitate them to make the bid in the auction process. In order to carry out the aforesaid business the petitioners Company used to engage contractors for the purpose of collecting samples and binding samples for sale in auction. In course of its business the petitioners company engaged the opposite party No. 1 Firm, namely, M/s M.B. Enterprises having its registered office at Pub-Sarania Gauhati represented by the opposite party No. 3. The terms and conditions under which the arrangements made with the opposite party No. 1 was that they will collect the samples and bind it for each financial year which is subject to renewable at the end of each financial year i.e. 31st March of every year subject to maximum period up to 31st March, 1994. It was further stipulated in the terms and conditions of the contract that the contract has to be renewed in each financial year and unless it is renewed the same would not have any effect.
3. Sometime on 23-3-93 for the purpose of getting the better service and to enable all firms/contractors to participate in the collecting samples and binding the samples packets the petitioners company floated a tender by publishing in the daily English Newspaper, the Sentinel. Pursuant to the floated tender several intending parties submitted their tenders for the said work and the petitioners on the basis of the rates quoted by the tenderers selected the proforma opposite party and an agreement was entered into with the proforma opposite party on 31-3-93 for a period of 3 years commencing from 1-4-1993. The aforesaid tender was floated as the petitioners company decided to renew the agreement for the said contract with the opposite parties only up to 31st March, 93. The pro forma respondents have completed Sale No. 16 regarding collecting the samples and making the packets etc.
4. The petitioners company having apprehended some troubles from the opposite parties No. 1 and 3 in awarding the contract to the proforma opposite parties on the basis of tender floated, lodged a Caveat in the Court of the learned Assistant District Judge-1, Guwahati and the same was registered as Misc. Case No. 40/93 dated 24-3-93 describing Shri S.K.. Baruah (O.P. No. 3 herein) and M/s M.B. Enterprises as prospective plaintiff praying for a hearing in the event of filing any stay and injunction petition before passing any order on such plaint and injunction petition. The notices of the Caveat was duly served to Shri S.K. Baruah and M/s. M.B. Enterprises by registered post and the receipt of which was also filed along with the Caveat in the court of Asstt. District Judge-1, Guwahati.
5. The opposite parties No. 2 and 3 filed a suit being T.S. No. 81/93 on 8-4-93. In the Court of Asstt. District Judge-1, Gauhati against the petitioner company praying inter alia for a decree declaring that the contract work executed on 6-4-1991 by the petitioner/ defendants with the plaintiffs/opposite parties is still in force and that the contract order dated 5-4-93 made between the petitioners and the proforma opposite parties is void, illegal, inoperative and not binding to the plaintiff/O.Ps. and also for permanent injunction. The opposite parties also filed an application under Order 39 Rules 1 and 2 read with Section 151 of the CPC praying for a temporary injunction restraining the petitioners/ defendants, their servant, agents, employees and workmen from executing the contract order dated 5-4-93 and also prayed for an ad-interim injunction. The learned Asstt. District Judge-1, Guwahati passed an exparte ad interim injunction restraining the petitioners and proforma opposite parties from acting on the basis of the contract order dated 5-4-93. It is averred in this petition that no contract executed by the petitioners on 5-4-93. Be that as it may, we are not dealing with this question for the present. Hence the present Revision petition.
6. 1 have heard Mr. D.N. Choudhury, learned counsel for the petitioner as well as Mr. J.N. Sarma, learned counsel for the opposite parties.
7. The important question of law that arises for determination in the present case is whether the petition against the appealable order is permissible under Article 227 of the Constitution read with Sections 115 and 151 of the C.P.C. OR to put it tersely whether the order passed under Order 39 Rules 1 and 2 of the CPC which is appealable under Order 43 Rule 1 can be challenged under Article 227 of the Constitution read with Section 151 of the C.P.C.
8. It is submitted by Mr. Choudhury that this court in exercise of its extra-ordinary jurisdiction under Article 227 of the Constitution read with Sections 115 and 151 of the C.P.C. can entertain this petition inasmuch as, the order passed by the court below is absolutely without any jurisdiction in the face of it and in the facts and circumstances of this case,
9. As against this, Mr. Sharma submits that the present petition cannot be entertained under Article 227 read with Sections 115 and 151 of the CPC inasmuch as, the order passed by the court below under Order 39 Rules 1 and 2 is appealable under Order43 Rule 1 of the CPC. In this connection he has drawn my attention to the Provision of Sub-section (2) of Section 115 of the CPC which reads as under;–
“115(11). The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to the Sub ordinate Court thereto.”
Mr. Sharma, therefore, argued that the word ‘shall’ appears in the sub-section mandates that no petition other than under the provision of Order 43 Rule 1 is enter-tainable. In support of his contention, Mr. Sharma has drawn my attention to a decision of the Apex Court rendered in Miss Meneck Gustodji Surjarji v. Sarafazali Nawabali Mirza, (1977) 1 SCC 227 : (AIR 1976 SC 2446) where it has been held in para 6 of the judgment that the ‘High Court cannot ordinarily, in exercise of its discretion, entertain a special civil application where an adequate alternative legal remedy is available to the applicant. It is further observed that where an appeal against the decree of the city civil court lay to the High Court, the application under Art.227 was misplaced. It is further observed that, it is true that this principle is not rigid and inflexible and there can be extraordinary circumstance, where despite he existence of an alternative legal remedy the High Court may interfere in favour of an applicant but this was certainly not one of the such extraordinary cases.”
10. This would show that in a case of extra-ordinary circumstances as in the case in hand, which I shall be dealing presently, despite the existence of an alternative legal remedy the High Court may interfere in exercise of its extraordinary jurisdiction under Article 227 of the Constitution. Mr. Sharma has also referred to a decision of the learned single Judge of this Court rendered in Jyotish Chandra Borbora v. The Buragohain Tea Co. and Pvt. Ltd. (1993) 1 Gauhati LR 66 where it has been held that High Court cannot suo motu convert a petition filed under Section 115 of the CPC to a petition under Article 227 of the Constitution of India. This decision is distinguishable on facts. As stated earlier the present petition filed directly invoking the jurisdiction of this Court under Article 227 of the Constitution. The present is not the case of conversion of an application from one under Section 115 to that of under Article 227 of the Constitution. Mr. Sharma has also drawn my attention to a decision of the learned single Judge of this Court rendered in Bongaigaon Municipality v. Shri Bustimal Sulekha, in Civil Revision No. 30 of 1992 disposed on 15-6-92 where this court had held that the ‘supervisory power conferred under Article 227 of the Constitution cannot be exercised where an alternative remedy is available’. I have gone through thc judgment. The facts of that case differ from the facts of this case inasmuch as, in that case no Caveat was lodged before the Court below by the prospective defendants. Therefore, the decision (Supra) is distinguishable on facts.
11. Mr. Choudhury, learned counsel for the petitioner, in support of his contention has referred to a decision of the Constitutional bench of the Apex Court in State of Gujarat v. Vakhasinghji Vajesinghji, AIR 1968 SC 1481 where it was held in para 14 of the judgment :–
“14. Mr. Birendra submitted that Section 12 of the Abolition Act makes the decision of the Tribunal final and conclusive and the High Court had no jurisdiction to interfere with the decision, particularly in respect of the solatium of 15 per centum and non-irrigational bounds tanks and wells. We are unable to accept this contention. Article 227 of the Constitution gives the High Court the power of superintendence over all courts and tribunal throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fetter by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. It was the duty of the Revenue Tribunal to award compensation to the Taluqdars in accordance with the provision of Sections 7 and 14 of the Act. The High Court had jurisdiction to revise the decision of the Tribunal where the Tribunal on a misreading of the provision of Sections 7 and 14 declined to do what was by those provisions of law incumbent on it to do. Tested in the light it does not appear that the High Court exceeded its jurisdiction under Article 227 in reversing the decision of the Tribunal in respect of the solatium and irrigational bunds tanks and wells. Numerous cases were pending before the Revenue Tribunal in respect the compensation payable to the Taluqdar under the Bombay Taluqdari Tenure Abolition Act. To prevent miscarriage of justice it was necessary for the High Court to lay down general principles, on which compensation should be assessed so that the Tribunal may act within the limits of their authority. On finding that the Tribunal had misconceived as duties under Sections 7 and 14 the High Court could not only set aside the its decision, but also direct it to make further inquiries after taking evidence.”
12. In the case (supra) it was argued that under Section 12 of Bombay Taluqdari Tenure Abolition Act (62 of 1949) the decision of the Tribunal is final and conclusive and the High Court has no jurisdiction to interfere with a decision rendered by the Tribunal.
Mr. Choudhury next referred to another decision of the Apex Court rendered in Trimbak Gangadhar Telang v. Ramchandra Ganesh Bhide, (1977) 2 SCC 437 : (AIR 1977 SC 1222) where it has been observed (at p. 1225 of AIR):
“It is well settled Rule of practise of this court not to interfere with the exercise of discretionary power under Articles 227 and 227 of the Constitution merely because two views are possible on the facts of a case. It is also well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play where a patent or flagrant error in procedure of law has crept in or where the order passed results in manipulation manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution.”
He has also referred to a decision of this Court in Chief Secretary to the Govt. of Assam v. R. C. Mahanta (1981) 1 Gauhati LR241 :(1981. Lab 1C NOC 77) where it has been held in paragraph 4 of the judgment as under :–
“4. The present is not a case of conversion of the petition under Article 227, because this article was specifically invoked while approaching this Court. As regards the alternative remedy by way of appeal, it may be stated that the defendants have approached this court, not so much against the order of injunction but they have challenged the entire jurisdiction of the learned Munsiff in entertaining the suit. This being the position, I do not think that the petition should be dismissed on the preliminary ground raised by Shri Bhattacharjee especially when the point involved deserves decision at the hand of this Court in view of its importance and larger public interest involved albeit temporarily,”
13. He has also referred to a another decision of this Court rendered in Md. Isha Haque v. Azadur Rahman Hazarika (1993) 1 Gauhati LR 92 where it has been observed in para 10 of the judgment that “where any authority passes order which is manifestly wrong and without jurisdiction the High Court definitely has a power under Article 227 to interfere with the order”.
14. After going through the judgments as referred above, the broad consensus is that the extraordinary jurisdiction of the High Court under Article 227 of the Constitution can be invoked in a case where there is a violation of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, despite of the existence of an alternative legal remedy.
15. Now let us see whether the present is the case where the court has passed order without jurisdiction or in flagrant violation of fundamental basic principles of justice and fair play which resulted in miscarriage of justice.
16. Reverting back to the facts of the case, it is averred in paragraph 9 of the petition that apprehending some troubles from the O.Ps. No. 3 and 1 the petitioners/defendants lodged a Caveat in the Court of Asstt. District Judge-1, Guwahati registered as Misc. Case No. 40/ 93. The Caveat was lodged on 29-3-93 describing Shri S.K. Baruah O.P. No. 3 and M/s M.B. Enterprises as O.P. No. 1 herein respectively. The notices were duly served by registered post and the receipt of which was also filed along with the Caveat before the learned Court below.
17. Section 148A as inserted by 1976 C.P.C, amendment reads as under:–
“148-A. Right to lodge a Caveat.– (1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted or about to be instituted, in a court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.
(2) Where a Caveat has been lodged under Sub-section (1), the person by whom the Caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgment due, on the person by whom the application has been, or is expected to be, made, under Sub-section (1).
(3). Where, after a Caveat has been lodged under Sub-section (1) any application is filed in any suit or proceeding, the court shall serve a notice of the application on the caveator.
(4) Where a notice of any Caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be filed, by him in support of the application.
(5) Where a caveat has been lodged under Sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in Sub-section (1) has been made before the expiry of the said period.”
18. The purpose and intend of introducing this new provision for a caveat by authorising a party to intimate to the Court of his intention to have notice of an intended application by the adverse party so that ex parte order on an application may not be obtained by an adverse party without such notice. Under this section the caveat lodged is to remain in force for a period of 90 days. As stated earlier, in the present case caveat was lodged on 29-3-93 and ad interim injunction was granted by the learned court below on 8-4-93. The object of the caveat is to safeguard the interest against an order that may be passed against a person who may not be a necessary party but may be effected by the order that may be passed in suit or proceeding. Further, ‘under. Sub-section (3) of Section 148A the duty is cast upon the court to serve a notice of the’ application on the caveator if any application is filed in any suit or proceeding after a caveat has been lodged. Sub-section (4) of Section 148A provides “Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been or may be, filed by him in support of the application.”
19. In the instant case admittedly, the ad-interim injunction was obtained on 8-4-93 without notice to the caveator. This order, in my opinion was passed without any jurisdic-1 tion and in flagrant violation of the basic principles of law and fair play. It is, therefore, permissible to invoke the extraordinary jurisdiction of this court under Article 227 of the Constitution of India. In such a situation if any petition is filed invking the extraordinary jurisdiction of the High Court under Article 227 of the Constitution, it is not really against the grant of injunction but it is against the violation of basic principles of law and fair play and this Court in exercise of its power of superintendence over all courts and Tribunals can entertain application under Article 227 of the Constitution.
20. To sura up, (I) that where the court or tribunal passed an order without any jurisdiction and violate the basic fundamental principles of law or where a patent or flagrant error in procedure has been committed, the High Court can intervene under Article 227 of the Constitution, (ii) In a suit like the case of the present nature where a Caveat was duly lodged and the receipt of the notice of the Caveat was duly filed in the Court and ad interim injunction granted without a notice of hearing of the application on the caveator would be an order passed without any jurisdiction and in flagrant violation of basic principles of law and fair play and would be justified in invoking the extraordinary jurisdiction of the Court under Article 227 of the Constitution of India, despite the existence of an alternative legal remedy.
21. Next, it is argued by Mr. Sharma that even if an ad-interim injunction is passed without giving notice to the caveator it is not without jurisdiction and is operative till set aside. In this connection he has referred to a decision of the learned single Judge rendered in Reserve Bank of India Employees Association v. The Reserve Bank of India, AIR 1981 Andh Pra 246 where it has been held that ad-interim order passed by the court without giving a notice to the caveator is not without jurisdiction and is operative till set aside in appropriate proceeding. With due respect to the learned Judge, I am unable to agree, because in such a situation it would be a case of passing order without jurisdiction and therefore, would be invalid.
22. Mr. Choudhury however, referred to a another decision of the division Bench of the same court rendered in Seethaih v. Govt. of Andhra Pradesh, AIR 1983 Andh Pra 443 where it has been held that the Caveator not being supplied copies of petition and the documents filed along with the petition and obtained an ex-parte interim stay against the caveator, the order of interim stay was invalid.
23. Lastly Mr. Sharma faintly submits that in the caveat lodged by the petitioner the prospective plaintiff was not sufficiently described inasmuch as, Smt. Mallika Baruah, wife of Shri S.K. Baruah (O.P. No. 2 herein) of Kharghuli road-Gauhati was plaintiff No. 2 whereas the caveator served a notice to Shri S.K. Baruah, M.B. Enterprises, Pub-Sarania-Six Bye-lane Gauhati 6. I am unable to accept this contention because of 2 reasons. From the Annexure E and F all the correspondences on behalf of M/s. M.B. Enterprises at all the relevant time is done by Mr. S.K. Baruah and the Caveator served a notice to Mr. S.K. Baruah. Notice was sent to the address of M.B. Enterprises, Pub-Sarania 6 Bye-lane, Gauhati-6 which is the address of the Plaintiffs’ Firm. Therefore, the notice and the address of the prospective plaintiffs was sufficiently described in the notice and also the notice was duly received and the receipt was filed in the court of Asstt. District Judge-1 Gauhati and therefore, there is no scope for confusion.
24. For the reasons stated above, the ad-interim ex parte injunction passed by the learned Asstt. District Judge on 8-4-93 in Mis (J) Case No. 36/93 is hereby quashed and set aside. The learned Asstt. District Judge is directed to consider the application under Order 39 Rules 1 and 2 of the CPC filed by the plaintiffs afresh after hearing the caveators/defendants.
25. With the aforesaid direction, the Revision petition is allowed.