JUDGMENT
Thomas, J.
1. A question of law has been mooted in this appeal, whether Section 41(b) of the Specific Relief Act, 1963 (for short the Act’) would prevent a Court from granting injunction in respect of proceedings pending in the same Court. Learned counsel lor the appellant canvassed that the decision in Raghavan v. Sankaran (1992 (2) Ker LT 959) rendered by a Teamed single Judge of this Court is not correct law.
2. Appellant is the third defendant in a suit for partition instituted by her two brothers-in-law. The impugned order is a temporary injunction which restrains the appellant from proceeding with an earlier suit filed by her (O.S. No. 104/86) in the same Court. More facts are these :
3. Suit properties belonged to the father-in-law of the appellant (Chami by name) who died in 1978. Chami was survived by his widow and four children. Appellant is the widow of Sahadevan, one of the sons of Chami. (Sahadevan died in 1984). Appellant filed O.S. No. 104/86 in the Sub-Court, Palakkad against her mother-in-law for partition of the present suit property. In the said suit present plaintiffs were not parties,
as the appellant then contended that there was an oral partition in the family in 1969 in which the suit property was allotted to the share of two sons of Chami (Chandran and Sahadevan) and that the said Chandran (who is second defendant in the present suit) had sold his half right in favour of Sahadevan in 1972. A preliminary decree has been passed by the Court in the said suit declaring the right claimed by the appellant.
4. Plaintiffs contended in the present suit filed in the same Sub-Court that appellant is entitled only to 1/10th share in the suit property and that the plaintiffs put together are entitled to 4/10th snares, When appellant admitted that the property belonged to Chami who died only in 1978, how could the appellant possibly resist the plaintiffs’ stand that the oral partition of 1969 has no legal force. If no registered document has been created, the right of Chami could not have been transferred to Chandran or Sahadevan. So prima facie the plaintiffs are entitled to the share in the suit property. The next question, therefore, is whether the injunction order prayed for could have been granted in law.
5. Learned counsel for the appellant contended that Section 41(b) of the Act contains an embargo against grant of injunction restraining a person from prosecuting any legal proceeding in a Court of law and that embargo would cover the earlier suit (O.S. No. 104/86). Section 41(b) of the Act reads thus:
“Injunction when refused.– An injunction cannot be granted-
(b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought.”
There would have been no difficulty if the earlier suit was pending in a Court which is subordinate to the Court which passed the impugned order because the interdict provided in Section 41(b) would not then be applicable at all. Equally so, there would have been no difficulty if the earlier suit was pending in a superior Court since the embargo in the section would apply to such a case. In a third alternative, even if the earlier suit was pending
in another Court of equal status the position would not have been different in view of the principle of law laid down by the Supreme Court in Cotton Corporation of India Ltd. v. United Industrial Bank (AIR 1983 SC 1272). This is on the premise that such a Court is co-ordinate with the Court before which the application for injunction is made.
6. But the position in this case is that the earlier suit is pending in the same Court. Hence the question is whether the embargo envisaged in Section 41(b) would prevent that Court from granting the injunction in respect of a proceeding pending in that Court. The Supreme Court in Cotton Corporation of India’s case (AIR 1983 SC 1272) (cited supra) has covered a wide region pertaining to Section 41(b) of the Act. But the Supreme Court, has left this point unresolved with the observation (at the end of para-9) that “there is an unresolved controversy whether a Court can grant an injunction against a person from instituting or prosecuting a proceeding before itself but that is not relevant in the present circumstances and we do not propose to enlarge the area of controversy.” Thus, we have to take a decision on that point unaided by the Apex Court decision.
7. In order to understand the scope of the embargo contained in Section 41(b) of the Act it would be useful to refer to the corresponding provision in the Specific Relief Act, 1887 (for short ‘the Repealed Act’). Its precursor was Section 24(5) of the English Judicature Act of 1873 which prevented the Common Law Courts and Chancery Division from granting injunction against any proceeding pending before the High Court of Justice or the Court of Appeal. That principle was adopted in India through Section 56 of the Repealed Act. Relevant portion of Section 56 read thus :
“Injunction cannot be granted:–
(b) to stay proceeding in a Court not subordinate to that from which the injunction is sought.”
8. There was an earlier thinking that the injunction envisaged in the said section is only the perpetual injunction granted by the Court and not temporary injunction since there is a
particular provision in the Code of Criminal Procedure for regulating such temporary injunctions. That line of thinking was given a quietus by the Supreme Court in Cotton Corporation of India’s case (AIR 1983 SC 1272) (cited supra) by holding that the interdict contained in Section 41 would apply to all kinds of injunctions, whether temporary or permanent. Courts have often adopted the interpretation that since the embargo contained in Section 56 of the Repealed Act is meant only as against a Court, it did not denude the Court of its powers to injunct a party from prosecuting the proceedings in any Court, whether subordinate or superior. However, the change made in the phraseology resulting in the present shape of Section 41(b) of the Act would keep the above interpretation at bay since the injunction now envisaged in Section 41 of the Act is against the person who institutes or prosecutes other legal proceedings.
9. Section 41(b) of the Act contains a combination of two negatives such as “cannot” in the introductory portion and “not” in the operative portion. The theory that double negatives would amount to a positive does not help us in this context because the Legislature could easily have framed the section in a positive form if its intention was like that. The object is not to permit the Court to issue injunction to restrain any person from instituting or prosecuting any proceeding in a Court subordinate to it, but to curtail the powers of the Court in interfering with the proceedings pending in other Courts.
10. Proceedings pending in superior Courts and Courts of equal grade (co-ordinate Courts) cannot be regulated or controlled by other Courts as a matter of public policy. This is the clear message which can be discerned from the section. But should a Court be prevented from regulating its own proceedings? If the Court becomes helpless in controlling its own proceedings the consequence would sometimes be very hard. The interdict contained in Section 41(b) must not, therefore, be stretched to the extent of rendering a Court helpless in preventing abuses of its own proceedings.
11. In Raghavan v. Sankaran (1992 (2) Ker LT 959) one of the reasons highlighted by the learned single Judge is thus:
“Suppose a Court makes an order or decree which is subsequently discovered to be the result of fraud or abuse and the party affected adversely seeks an injunction to restrain the opposite party from taking advantage of the order obtained by fraud or abuse of the Court’s process. If Section 41(b) were applied to such cases the results would be disastrous.”
Learned Judge has rightly observed in the decision that Shamsuddin, J. has not considered this aspect in Devasia Chacko v. Venkita Krishna Iyer (1992 (1) Ker LT 850) since that point was neither urged nor raised in that case.
12. Learned counsel for the appellant referred to the decisions in Sethurayar v. Shanmugam Pillai (ILR 21 Mad 353) and Ehsan Beg v. Rahmat Ali (152 IC 798) in support of his contention that the interdict contained in Section 56 of the Repealed Act was interpreted as applicable to the same Court. In the Madras decision no reasoning was given for taking such view. In Ehsan Beg’s case (ILR 21 Mad 353) (cited supra) it is not clear whether the injunction was sought to be issued against proceedings pending in the same Court.
13. In Ram Sadan Biswas v. Mathura Mohan (AIR 1925 Cal 233) a learned single Judge of the Calcutta High Court has dissented from the Madras decision (cited supra) and observed that “it is difficult to conceive on what principle a Court can be said to be not empowered to do in respect of proceedings before itself what it thinks proper in respect of proceedings before another Court subordinate to it”. A Division Bench of the Patna High Court had quoted the above decision of Calcutta High Court with approval in Radha Madhab v. Rajendra (AIR 1933 Patna 250).
14. We reiterate our conclusion in the light of the above discussion that the interdict contained in Section 41(b) is not applicable when injunction is to be issued in respect of the proceedings pending in the same Court. The
principle of law has been correctly stated by Guttal, J. in Raghavan v. Sankaran (1992 (2) Ker LT 959).
For all the above reasons, we dismiss this appeal, but without any order as to costs.
