{"id":4355,"date":"1961-11-16T00:00:00","date_gmt":"1961-11-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manohar-lal-chopra-vs-rai-bahadur-rao-raja-seth-hiralal-on-16-november-1961"},"modified":"2018-04-20T01:08:24","modified_gmt":"2018-04-19T19:38:24","slug":"manohar-lal-chopra-vs-rai-bahadur-rao-raja-seth-hiralal-on-16-november-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manohar-lal-chopra-vs-rai-bahadur-rao-raja-seth-hiralal-on-16-november-1961","title":{"rendered":"Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal on 16 November, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal on 16 November, 1961<\/div>\n
Equivalent citations: 1962 AIR 527, \t\t 1962 SCR Supl. (1) 450<\/div>\n
Author: R Dayal<\/div>\n
Bench: Dayal, Raghubar<\/div>\n
           PETITIONER:\nMANOHAR LAL CHOPRA\n\n\tVs.\n\nRESPONDENT:\nRAI BAHADUR RAO RAJA SETH HIRALAL\n\nDATE OF JUDGMENT:\n16\/11\/1961\n\nBENCH:\nDAYAL, RAGHUBAR\nBENCH:\nDAYAL, RAGHUBAR\nWANCHOO, K.N.\nGUPTA, K.C. DAS\nSHAH, J.C.\n\nCITATION:\n 1962 AIR  527\t\t  1962 SCR  Supl. (1) 450\n CITATOR INFO :\n F\t    1965 SC1144\t (6)\n R\t    1966 SC1899\t (5)\n F\t    1983 SC1272\t (21)\n R\t    1986 SC 421\t (34)\n\n\nACT:\n     Civil Procedure-Inherent  powers  of  courts-\nTemporary   Injunction-Restraining    party   from\nproceeding with suit in another State-Legality and\npropriety of-Code  of Civil  Procedure, 1908 (V of\n1908), ss. 94(c) 151:O. 39 r. 1.\n\n\n\nHEADNOTE:\n     M filed  a suit  at  Asansol  against  H  for\nrecovery of  money. Later,  H filed a counter suit\nat Indore  against M for recovery of money. In the\nAsansol suit  one of  the defences raised by H was\nthat the  Asansol court\t had  no  jurisdiction\tto\nentertain the suit. H applied to the Asansol court\nto stay the suit but the court refused the prayer.\nAn appeal  to the  Calcutta High Court against the\nrefusal to  stay was  dismissed with the direction\nthat the  preliminary issue of jurisdiction should\nbe disposed  of by  the trial  court  immediately.\nThereupon, H  applied to  the Indore  court for an\ninjunction to  restrain M from proceeding with the\nAsansol suit  pending the  disposal of\tthe Indore\nsuit and  the court  purporting to act under O. 39\nCode of\t Civil Procedure granted the injunction. M\nappealed to  the Madhya\t Bharat High  Court  which\ndismissed the appeal holding that though O. 39 was\nnot applicable to the case the order of injunction\ncould be  made under  the inherent  powers of  the\ncourt under s. 151 Code of Civil Procedure.\n^\n     Held,  that   the\torder  of  injunction  was\nwrongly granted and should be vacated.\n     Per, Wanchoo,  Das Gupta,\tand  Dayal,JJ.-The\nCivil courts had inherent power to issue temporary\ninjunctions in cases which were not covered by the\nprovisions of  O. 39  Civil  Procedure\tCode.  The\nprovisions of the Code were not\n451\nexhaustive. There  was no  prohibition\tin  s.\t94\nagainst the  grant of  a  temporay  injunction\tin\ncircumstances not  covered by  O. 39. But inherent\npowers\twere   not  to\tbe  exercised  when  their\nexercise  was\tin  conflict   with  the   express\nprovisions  of\t the  Code   or\t was  against  the\nintention of  the legislature. Such powers were to\nbe exercised  in very exceptional circumstances. A\nplaintiff of  a suit in another jurisdiction could\nonly be\t restrained from  proceeding with his suit\nif the\tsuit was vexatious and useless. It was not\nso in  the present  case. It  was proper  that the\nissue as  to jurisdiction should be decided by the\nAsansol court  as directed  by the  Calcutta  High\nCourt. The  Indore court  could\t not  decide  this\nissue. Beside, it was open to the Asansol court to\nignore the  order  of  the  Indore  court  and\tto\nproceed with  the suit.\t This would  place M in an\nimpossible position.  An order\tof a  court should\nnot lead to such a result.\n     Varadacharlu v.  Narsimha Charlu, A.I.R. 1926\nMad.258; Govindarajalu\tv. Imperial Bank of India,\nA.I.R. 1932  Mad. 180  ; Karuppayya v. Ponnuswami,\nA.I.R.\t1933   Mad.  500(2);  Murugesa\tMudali\tv.\nAngamuthu  Madali,   A.I.R.  1938   Mad.  190  and\nSubramanian v.\tSeetarama, A.I.R.  1940 Mad.  104,\nnot approved.\n     Dhaneshwar Nath  v.  Ghanshyam  Dhar,  A.I.R.\n1940 All.185,  Firm Richchha  Ram v.  Firm  Baldeo\nSahai, A.I.R. 1940 All.241, Bhagat Singh v. Jagbir\nSawhney, A.I.R.\t 1941 Cal. 670 and Chinese Tannery\nOwners' Association  v. Makhan\tLal,  A.I.R.  1952\nCal. 550, approved.\n     Padam Sen\tv. State of U.P. [1961] 1 S. C. R.\n884, Cohen  v. Rothfield, L. R. [1919] 1 K. B. 410\nand Hyman  v. Helm,  L. R.(1883)  24 Ch.  D.  531,\nrelied on.\n     Per, Shah,\t J.-Civil courts  have no inherent\npower to  issue injunctions in case not covered by\nO. 39,\trr. 1  and 2  Code of Civil Procedure. The\npower of  civil courts,\t other than Chartered High\nCourts, to  issue injunctions must be found within\nthe terms  of s.  94 and O. 39, rr. 1 and 2. Where\nan express  provision is made to meet a particular\nsituation the  Code must be observed and departure\ntherefrom is not permissible. Where the Code deals\nexpressly with\ta particular  matter the provision\nshould normally be regarded as exhaustive.\n     Padam Sen v. State of U. P. [1961] 1 S. C. R.\n884, relied upon.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION:  Civil  Appeal
\nNo. 346 of 1958.\n<\/p>\n
452<\/span><\/p>\n
     Appeal by special leave from the judgment and
\norder dated  May 10,  1955, of\tthe former  Madhya
\nBharat High Court in Misc. Appeal No. 26 of 1954.\n<\/p>\n
     S. N. Andley, Rameshwar Nath and P. L. Vohra,
\nfor the appellant.\n<\/p>\n
     S. T.  Desai,  K.\tB.  Bhatt  and\tB.  R.\tL.\n<\/p>\n
Iyengar, for the respondent.\n<\/p>\n
     1961. November  16. The  Judgment of Wanchoo,
\nDas Gupta and Dayal,JJ., was delivered by Dayal J.
\nShah J., delivered a separate Judgment.\n<\/p>\n
     RAGHUBUR  DAYAL,  J.-The  appellant  and  the
\nrespondent entered  into a  partnership at  Indore
\nfor working  coal mines\t at Kajora  gram (District
\nBurdwan) and  manufacture of  cement etc.,  in the
\nname and  style of  ‘Diamond Industries’. The head
\noffice of  the\tpartnership  was  at  Indore.  The
\npartnership was dissolved by a deed of dissolution
\ndated August  22, 1945.\t Under the  terms of  this
\ndeed, the  appellant made himself liable to render
\nfull, correct  and true\t account of all the moneys
\nadvanced by  the respondent  and  also\tto  render
\naccounts of the said partnership and its business,
\nand was\t held entitled\tto 1\/4th of Rs. 4,00,000\/-
\nsolely contributed  by the  respondent toward  the
\ncapital of  the partnership.  He was, however, not
\nentitled to  get this  amount unless  and until he
\nhad  rendered  the  accounts  and  they\t had  been
\nchecked and audited.\n<\/p>\n
     The  second   proviso  at\t the  end  of  the
\nconvenants in the deed of dissolution reads:\n<\/p>\n
\t  “Provided however  and it  is agreed\tby
\n     and between  the parties  that as the parties
\n     entered into  the\tpartnership  agreement\tat
\n     Indore  (Holker   State)  all   disputes  and
\n     differences whether  regarding money or as to
\n     the relationship  or as  to their\trights and
\n     liabilities of  the parties hereto in respect
\n     of the
\n453<\/span>
\n     partnership hereby dissolved or in respect of
\n     question arising  by and  under this document
\n     shall be  decided amicably\t or  in\t court\tat
\n     Indore and at nowhere else.”<\/p><\/blockquote>\n
     On September 29, 1945, a registered letter on
\nbehalf\tof   the  respondent   was  sent   to  the
\nappellant. This\t required the appellant to explain
\nto and\tsatisfy the respondent at Indore as to the
\naccounts of  the said colliery within three months
\nof the\treceipt of  the notice. It was said in the
\nnotice\tthat   the  accounts   submitted  by   the
\nappellant had not been properly kept and that many
\nentries\t appeared   to\tbe   wilfully\tfalsified,
\nevidently with\tmalafide intentions and that there
\nappeared in  the account  books various\t false and
\nfictitious entries  causing wrongful  loss to  the
\nrespondent and wrongful gain to the appellant. The
\nappellant sent\ta reply to this notice on December
\n5, 1935,  and denied  the various allegations, and
\nrequested the respondent to meet him at Asansol or
\nKajoraram on  any day  suitable to him, within ten
\ndays from the receipt of that letter.\n<\/p>\n
     On August\t18, 1948, the appellant instituted
\nSuit M.\t S. No.\t 33 of\t1948 in\t the Court  of the
\nSubordinate   Judge   at   Asansol   against   the
\nrespondent for\tthe recovery  of Rs. 1,00,000\/- on
\naccount of his share in the capital and assests of
\nthe partnership\t firm ‘Diamond Industries’ and Rs.
\n18,000\/- as interest for detention of the money or
\nas   damages\tor   compensation   for\t  wrongful
\nwithholding of\tthe  payment.  In  the\tplaint\the
\nmentioned about\t the respondent’s  notice and  his
\nreply and  to a\t second letter\ton behalf  of  the
\nrespondent and\this own\t reply thereto.\t A copy of
\nthe  deed   of\tdissolution,   according  to   the
\nstatement in paragraph 13 of the plaint, was filed
\nalong with it.\n<\/p>\n
     On\t October  27,  1948,  respondent  filed\t a
\npetition under s. 34 of the Arbitration Act in the
\nAsansol Court praying for the stay of the suit in
\n454<\/span>
\nview of\t the arbitration agreement in the original
\ndeed of partnership. This application was rejected
\non August 20, 1949.\n<\/p>\n
     Meanwhile, on January 3, 1949, the respondent
\nfiled Civil  Original Suit  No. 71  of 1949 in the
\nCourt of  the District\tJudge, Indore, against the
\nappellant,  and\t  prayed  for  a  decree  for  Rs.
\n1,90,519-0-6 against  the  appellant  and  further
\ninterest on the footing of settled accounts and in
\nthe alternative\t for a\tdirection to the appellant
\nto  render   true  and\t full  accounts\t  of   the
\npartnership.\n<\/p>\n
     On November  28, 1949,  the respondent  filed
\nhis  written   statement  in  the  Asansol  Court.
\nParagraphs 19 and 21 of the written statement are:\n<\/p>\n
\t  “19. With  reference to  paragraph 21 of
\n     the plaint,  the defendant\t denies\t that  the
\n     plaintiff has any cause of action against the
\n     defendant\tor   that  the\talleged\t cause\tof
\n     action, the  existence of\twhich  is  denied,
\n     arose  at\t Kajora\t Colliery.  The\t defendant
\n     craves  reference\t to  the   said\t deed\tof
\n     dissolution whereby  the  plaintiff  and  the
\n     defendant agreed  to have\tdisputes, if  any,
\n     tried  in\t the  Court   at  Indore.  In  the
\n     circumstances,  the  defendant  submits  that
\n     this Court\t has no\t jurisdiction to  try  and
\n     entertain this suit.\n<\/p><\/blockquote>\n
\t  21. The  suit is vexatious, speculative,
\n     oppressive and  is\t instituted  malafide  and
\n     should be dismissed with costs.”\n<\/p><\/blockquote>\n
Issues were  struck on February 4, 1950. The first
\ntwo issues are:\n<\/p>\n
\t  “1.  Has   this  Court  jurisdiction\tto
\n     entertain and try this suit?\n<\/p><\/blockquote>\n
\t  2.  Has   the\t plaintiff   rendered  and
\n     satisfactorily explained  the accounts of the
\n     partnership  in   terms  of   the\t deed\tof
\n     dissolution of partnership ?”<\/p><\/blockquote>\n
455<\/span><\/p>\n
     In December  1951, the  respondent applied in
\nthe Court  at Asansol for the stay of that suit in
\nthe  exercise\tof  its\t  inherent   powers.   The
\napplication was\t rejected on  August 9,\t 1952. The
\nlearned Sub-Judge held:\n<\/p>\n
\t  “No act  done or proceedings taken as of
\n     right in  due course  of law  is ‘an abuse of
\n     the process of the Court’ simply because such
\n     proceeding is  likely to  embarass the  other
\n     party.”\n<\/p><\/blockquote>\n
He therefore held that there could be no scope for
\nacting under  s. 151,  Code of Civil Procedure, as
\ns. 10 of that Code had no application to the suit,
\nit having been instituted earlier than the suit at
\nIndore. The  High Court of Calcutta confirmed this
\norder on May 7, 1953, and said:\n<\/p>\n
\t  “We  do   not\t  think\t  that,\t  in   the
\n     circumstance  of\tthese  cases  and  on  the
\n     materials on record, those orders ought to be
\n     revised.  We   would  not\t make  any   other
\n     observation lest  it might\t prejudice any\tof
\n     the parties.”\n<\/p><\/blockquote>\n
The  High   Court  further   gave  the\t following
\ndirection:\n<\/p>\n
\t  “As the  preliminary issue  No.1 in  the
\n     two Asansol  suits have been pending for over
\n     two years, it is only desirable that the said
\n     issues should be heard out at once. We would,
\n     accordingly, direct  that the  hearing of the
\n     said issues should be taken up by the learned
\n     Subordinate   Judge   as\texpeditiously\tas
\n     possible and  the learned\tSubordinate  Judge
\n     will take immediate steps in that direction.”<\/p><\/blockquote>\n
     Now we  may refer\tto what\t took place in the
\nIndore suit  till then.\t On April  28,\t1950,  the
\nappellant applied  to the Indore Court for staying
\nthat suit  under ss.  10 and  151  Code\t of  Civil
\nProcedure.\n<\/p>\n
456<\/span><\/p>\n
The application\t was opposed  by the respondent on
\nthree grounds. The first ground was that according
\nto the term in the deed of dissolution, that Court
\nalone could  decide the\t disputes. The\tsecond was
\nthat under  the provisions  of the Civil Procedure
\nCode in\t force in  Madhya  Bharat,  the\t court\tat
\nAsansol was  not an  internal Court  and that  the
\nsuit filed  in Asansol\tCourt could  not have  the
\neffect of  staying the\tproceedings of\tthat suit.
\nThe third was that the two suits were of different
\nnature, their  subject matter  and relief  claimed
\nbeing different.  The  application  for\t stay  was
\nrejected on  July 5, 1951. The Court mainly relied
\non the\tprovisions of  the Second  proviso in  the
\ndeed of\t dissolution. The  High\t Court\tof  Madhya
\nBharat confirmed that order on August 20, 1953.\n<\/p>\n
     The position then, after August 20, 1953, was
\nthat the  proceedings in  both the  suits were\tto
\ncontinue, and  that the\t Asansol  Court\t had  been
\ndirected to  hear the  issue of jurisdiction at an
\nearly date.\n<\/p>\n
     It\t was   in  these  circumstances\t that  the
\nrespondent applied  under s.  151, Code\t of  Civil
\nProcedure on  September 14,  1953, to  the  Indore
\nCourt,\tfor   restraining   the\t  appellant   from
\ncontinuing the\tproceedings in\tthe suit  filed by
\nhim  in\t the  Court  at\t Asansol.  The\trespondent
\nalleged that  the  appellant  filed  the  suit\tat
\nAsansol in  order to  put him  to  trouble,  heavy
\nexpenses and  wastage of  time in going to Asansol
\nand that  he was  taking steps for the continuance
\nof the\tsuit filed in the Court of the Subordinate
\nJudge of  Asansol. The\tappellant  contested  this
\napplication and\t stated that  he  was  within  his
\nrights to institute the suit at Asansol, that that
\nCourt was  competent to\t try it and that the point
\nhad been  decided  by  overruling  the\tobjections
\nraised by the respondent and that the respondent’s
\nobjection for the stay or
\n457<\/span>
\nproceedings in\tthe  Court  at\tAsansol\t had  been
\nrejected by  that Court. He denied that his object
\nin instituting\tthe suit  was to cause trouble and
\nheavy expenses to the respondent.\n<\/p>\n
     It may  be mentioned  that the respondent did
\nnot state  in his application that his application
\nfor the\t stay of  the suit  at\tAsansol\t had  been
\nfinally dismissed  by the  High Court  of Calcutta
\nand that  that Court  had directed the trial Court
\nto decide  the issue  of jurisdiction  at an early
\ndate. The  appellant, too,  in his  objection, did
\nnot specifically  state that  the order\t rejecting
\nthe  respondents’s   stay  application\t had  been
\nconfirmed by  the High\tCourt at Calcutta and that
\nthat Court  had directed  for an  early hearing of
\nthe issue of jurisdiction.\n<\/p>\n
     The  learned   Additional\t District   Judge,
\nIndore, issues\tinterim injunction under O. XXXIX,
\nCode  of   Civil  Procedure,   to  the\t appellant
\nrestraining him\t from proceeding  with his Asansol
\nsuit pending  decision of  the Indore suit, as the
\nappellant was  proceeding with the suit at Asansol
\nin spite  of the  rejection of his application for
\nthe stay  of the  suit at  Indore, and\t,  as  the
\nappellant wanted  to violate  the provision in the
\ndeed of\t dissolution about  the Indore Court being
\nthe proper  forum for deciding the dispute between
\nthe parties.  Against this  order,  the\t appellant
\nwent in\t appeal to the High Court of Judicature at
\nMadhya\tBharat,\t contending  that  the\tAdditional
\nDistrict  Judge\t erred\tin  holding  that  he  was
\ncompetent to  issue such  an interim injunction to
\nthe appellant  under O. XXXIX of the Code of Civil
\nProcedure and that it was a fit case for the issue
\nof such\t an injunction\tand that,  considering the
\nprovisions of  O. XXXIX,  the  order  was  without
\njurisdiction.\n<\/p>\n
     The High  Court dismissed\tthe appeal  by its
\norder dated  May  10,  1955.  The  learned  Judges
\nagreed with the contention that O. XXXIX, r. 1 did
\nnot
\n458<\/span>
\napply to  the facts  of the  case. They,  however,
\nheld that  the order of injunction could be issued
\nin the\texercise of  the inherent  powers  of  the
\nCourt under  s. 151,  C.P.C. It\t is  against  this
\norder  that   the  appellant  has  preferred  this
\nappeal, by special leave.\n<\/p>\n
     On\t behalf\t  of  the   appellant,\ttwo   main
\nquestions have\tbeen raised for consideration. The
\nfirst is  that the  Court could\t not exercise  its
\ninherent   powers   when   there   were\t  specific
\nprovisions in  the Code of Civil Procedure for the
\nissue of interim injunctions, they being s. 94 and
\nO.XXXIX. The  other question is whether the Court,
\nin the\texercise  of  its  inherent  jurisdiction,
\nexercised its discretion properly, keeping in mind
\nthe facts  of the case. The third point which came
\nup for\tdiscussion at  the hearing  related to the
\nlegal effect  of the second proviso in the deed of
\ndissolution on\tthe maintainability of the suit in
\nthe Court at Asansol.\n<\/p>\n
     We do  not propose\t of express any opinion on
\nthis question of jurisdiction as it is the subject
\nmatter of an issue in the suit at Asansol and also
\nin the\tsuit at\t Indore and because that issue had
\nnot yet been decided in any of the two suits.\n<\/p>\n
     On the  first question  it is  argued for the
\nappellant that the provisions of cl. (c) of s. 94,
\nCode of Civil Procedure make it clear that interim
\ninjunctions can be issued only if a provisions for
\ntheir issue  is made  under  the  rules,  as  they
\nprovide that  a Court may, if it is so prescribed,
\ngrant temporary\t injunctions in\t order to  prevent
\nthe ends  of justice from being defeated, that the
\nword  ‘prescribed’,   according\t to  s.\t 2,  means
\n‘prescribed by\trules’ and  that rr.  1 and  2\tof
\nO.XXXIX lay  down certain circumstances in which a
\ntemporary injunction may be issued.\n<\/p>\n
     There is  difference of  opinion between  the
\nHigh Court on this point. One view is that a Court
\n459<\/span>
\ncannot issue  an order\tof temporary injunction if
\nthe  circumstances   do\t not   fall   within   the
\nprovisions   of\t  Order\t  XXXIX\t  of   the   Code:
\nVaradacharlu v. Narsimha Charlu (1), Govindarajulu
\nv. Imperial  Bank  of  India  (2),  Karuppayya\tv.
\nPonnuswami  (3),   Murugesa  Mudali  v.\t Angamuthu
\nMudali (4)  and Subramanian  v. Seetarama (5). The
\nother view  is that  a Court  can issue an interin
\ninjunction  under   circumstances  which  are  not
\ncovered by  Order XXXIX\t of the Code, if the Court
\nis  of\topinion\t that  the  interests  of  justice
\nrequire the  issue  of\tsuch  interin  injunction:
\nDhaneshwar  Nath   v.  Ghanshyam  Dhar\t(6),  Firm
\nBichchha Ram v. Firm Baldeo Sahai (7),Bhagat Singh
\nv. jagbir  Sawhney (8) and Chinese Tannery owners’
\nAssociation v.\tMakhan Lal  (9). We are of opinion
\nthat the  latter view  is  correct  and\t that  the
\nCourts\thave   inherent\t jurisdiction\tto   issue
\ntemporary injunctions  in circumstances\t which are
\nnot covered  by the provisions of O.XXXIX, Code of
\nCivil Procedure. There is no such expression in s.
\n94  which  expressly  prohibits\t the  issue  of\t a
\ntemporary injunction  in circumstances not covered
\nby O.  XXXIX or\t by any rules made under the Code.
\nIt is well-settled that the provisions of the Code
\nare not\t exhaustive for the simple reason that the
\nLegislature is\tincapable of contemplating all the
\npossible circumstances\twhich may  arise in future
\nlitigation  and\t consequently  for  providing  the
\nprocedure for  them. The  effect of the expression
\n‘if it\tis so  prescribed’ is  only this that when
\nthe rules prescribe the circumstances in which the
\ntemporary injunction can be issued, ordinarily the
\nCourt is  not to  use its  inherent powers to make
\nthe necessary  orders in the interests of justice,
\nbut is\tmerely to see whether the circumstances of
\nthe case  bring it  within the prescribed rule. if
\nthe provisions of s. 94
\n460<\/span>
\nwere not  there in the Code, the Court could still
\nissue temporary\t injunctions, but it could do that
\nin the\texercise of  its inherent jurisdiction. No
\nparty  has  a  right  to  insist  on  the  Court’s
\nexercising  that   jurisdiction\t and   the   Court
\nexercises its  inherent jurisdiction  only when it
\nconsiders it  absolutely necessary for the ends of
\njustice to  do so.  it is  in the incidence of the
\nexercise of  the  power\t of  the  Court\t to  issue
\ntemporary injunction  that the provisions of s. 94
\nof the\tCode have  their effect\t and not in taking
\naway the  right\t of  the  Court\t to  exercise  its
\ninherent powers.\n<\/p>\n
     There is  nothing in  O. XXXIX,  rr. 1 and 2,
\nwhich  provide\t specifically  that   a\t temporary
\ninjunction is  not to be issued in cases which are
\nnot mentioned  in  those  rules.  The  rules  only
\nprovide that  in circumstances\tmentioned in  them
\nthe Court may grant a temporary injunction.\n<\/p>\n
     Further, the provisions of s. 151 of the Code
\nmake it\t clear that  the inherent  powers are  not
\ncontrolled by  the provisions of the Code. Section
\n151 reads:\n<\/p>\n
     “Nothing in  this Code  shall  be\tdeemed\tto
\n     limit or  otherwise affect the inherent power
\n     of the  Court to  make such  orders as may be
\n     necessary for  the ends  of the justice or to
\n     prevent abuse of the process of the Court.”<\/p><\/blockquote>\n
     A similar\tquestion about\tthe powers  of the
\nCourt to issue a commission in the exercise of its
\npowers under  s. 151  of the Code in circumstances
\nnot covered  by s.  75 and  Order XXVI,\t arose\tin
\nPadam Sen  v. The  State of  Uttar Pradesh<\/a> (1) and
\nthis  Court  held  that\t the  Court  can  issue\t a
\ncommission in  such circumstances.  It observed at
\npage 887 thus:\n<\/p>\n
     “The inherent  powers of  the  Court  are\tin
\n     addition to the powers specifically conferred
\n     on
\n461<\/span>
\n     the Court by the Code. They are complementary
\n     to those powers and therefore it must be held
\n     that the  Court is\t free to exercise them for
\n     the purpose  mentioned in\ts. 151 of the Code
\n     when the  exercise of  those powers is not in
\n     any  way  in  conflict  with  what\t has  been
\n     expressly provided in the Code or against the
\n     intentions of the Legislature.”\n<\/p><\/blockquote>\n
These observations  clearly mean that the inherent
\npowers are  not\t in  any  way  controlled  by  the
\nprovisions of  the Code\t as has\t been specifically
\nstated in  151 itself. But those powers are not to
\nbe  exercised\twhen  their  exercise  may  be\tin
\nconflict with  what had been expressly provided in
\nthe  Code   or\tagainst\t  the  intentions  of  the
\nLegislature.  This   restriction,  for\t practical
\npurposes, on  the exercise  of these powers is not
\nbecause\t these\t powers\t are   controlled  by  the
\nprovisions of  the Code\t but because  it should be
\npresumed that  the procedure specifically provided
\nby  the\t  Legislature  for   orders   in   certain
\ncircumstances is  dictated  by\tthe  interests\tof
\njustices.\n<\/p>\n
     In the  above case, this Court did not uphold
\nthe order of the Civil Court, not coming under the
\nprovisions   of\t   order   XXVI,    appointing\t a
\ncommissioner for  seizing the account books of the
\nplaintiff on  the application  of the  defandants.
\nThe order was held to be defective not because the
\nCourt had  no power  to appoint\t a commissioner in
\ncircumstances not  covered by  s. 75  and O. XXVI,
\nbut because  the  power\t was  exercised\t not  with
\nrespect to  matters of\tprocedure but with respect
\nto a  matter affecting\tthe substantive\t rights of
\nthe plaintiff.\tThis is\t clear\tfrom  the  further
\nobservations made at page 887. This Court said:\n<\/p>\n
     “The question  for determination  is  whether
\n     the impugned  order of  the Additional Munsif
\n     appointing Shri Raghubir Pershad Commissioner
\n     for seizing the plaintiff’s books of account
\n462<\/span>
\n     can be said to be an order which is passed by
\n     the Court\tin the\texercise of  its  inherent
\n     powers. The  inherent powers  saved by s. 151
\n     of the Code are with respect to the procedure
\n     to be  followed by\t the Court in deciding the
\n     cause before  it. These powers are not powers
\n     over  the\t substantive  rights   which   any
\n     litigant possesses.  Specific powers  have to
\n     be conferred  on the  Courts for passing such
\n     orders which  would affect\t such rights  of a
\n     party. Such  powers cannot\t come  within  the
\n     scope of  inherent powers\tof  the\t Court\tin
\n     matters of procedure, which powers have their
\n     source  in\t  the  Court  possessing  all  the
\n     essential powers to regulate its practice and
\n     procedure.”<\/p><\/blockquote>\n
     The case  reported\t as  Maqbul  Ahmad  Pratap
\nNarain Singh  does not\tlay down that the inherent
\npowers\tof   the  Court\t  are  controlled  by  the
\nprovisions of  the Code.  It simply holds that the
\nstatutory discretion  possessed by a Court in some
\nlimited respects  under an Act does not imply that
\nthe  Court   possesses\ta  general  discretion\tto
\ndispense with  the provisions of that Act. In that
\ncase, an  application for  the\tpreparation  of\t a
\nfinal decree  was presented  by the  decree-holder
\nbeyond the period of limitation prescribed for the
\npresentation  of   such\t an  application.  It  was
\nhowever contended  that the  Court possessed  some
\nsort of\t judicial discretion which would enable it
\nto relieve the decree-holder from the operation of
\nthe Limitation Act in a case of hardship. To rebut
\nthis contention, it was said at page 87:\n<\/p>\n
     “It  is  enough  to  say  that  there  is\tno
\n     authority\t to    support\t the   proposition
\n     contended for. In their Lordships’ opinion it
\n     is impossible to hold that, in a matter which
\n     is governed  by Act,  an Act  which  in  some
\n     limited respects  gives the Court a statutory
\n     discretion, there can be
\n463<\/span>
\n     implied in\t the Court,  outside the limits of
\n     the Act,  a general  discretion  to  dispense
\n     with its  provisions. It  is to be noted that
\n     this view\tis supported by the fact that s. 3
\n     of the Act is peremptory and that the duty of
\n     the Court\tis to  notice  the  Act\t and  give
\n     effect to\tit, even though it is not referred
\n     to in the pleadings”.\n<\/p><\/blockquote>\n
These observations have no bearing on the question
\nof the\tCourt’s\t exercising  its  inherent  powers
\nunder s.  151 of the Code. The section itself says
\nthat nothing  in the Code shall be deemed to limit
\nor otherwise  affect the  inherent  power  of  the
\nCourt to  make orders  necessary for  the ends\tof
\njustice. In the face of such a clear statement, it
\nis not possible to hold that the provisions of the
\nCode control  the inherent power by limiting it or
\notherwise affecting it. The inherent power has not
\nbeen conferred\tupon the  Court;  it  is  a  power
\ninherent in  the Court by virtue of its duty to do
\njustice between the parties before it.\n<\/p>\n
     Further, when  the Code itself recognizes the
\nexistence of  the inherent  power  of  the  Court,
\nthere  is  no  question\t of  implying  any  powers
\noutside the limits of the Code.\n<\/p>\n
     We\t therefore   repel  the\t first\tcontention
\nraised for the appellant.\n<\/p>\n
     On the  second question,  we are  of  opinion
\nthat in\t view of the facts of the case, the Courts
\nbelow  were   in  error\t in  issuing  a\t temporary
\ninjunction to  the appellant  restraining him from
\nproceeding with the suit in the Asansol Court.\n<\/p>\n
     The inherent  powers are  to be  exercised by
\nthe Court  in very  exceptional circumstances, for
\nwhich the Code lays down no procedure.\n<\/p>\n
     The question  of issuing  an order to a party
\nrestraining him\t from proceeding  with\tany  other
\nsuit in\t a  regularly  constituted  Court  of  law
\ndeserves
\n464<\/span>
\ngreat care  and consideration and such an order is
\nnot to be made unless absolutely essential for the
\nends of justice.\n<\/p>\n
     In this connection, reference may usefully be
\nmade to\t what was  said in  Cohen v. Rothfield (1)
\nand which  case appears\t to  have  influenced  the
\ndecision of  the Courts\t in this  country  in  the
\nmatter\tof   issuing   such   injunction   orders.
\nScrutton, L. J., said at page 413:\n<\/p>\n
\t  “Where it  is proposed to stay an action
\n     on the  ground that  another is  pending, and
\n     the action\t to be\tstayed is not in the Court
\n     asked to  make the\t order, the same result is
\n     obtained by  restraining the  person  who\tis
\n     bringing the  second action  from proceedings
\n     with it.  But, as\tthe effect is to interfere
\n     with  proceedings\tin  another  jurisdiction,
\n     this power\t should be  exercised  with  great
\n     caution to avoid even the appearance of undue
\n     interference with another Court”.\n<\/p><\/blockquote>\n
And again, at page 415:\n<\/p>\n
\t  “While, therefore, there is jurisdiction
\n     to restrain a defendant from suing abroad, it
\n     is a  jurisdiction very rarely exercised, and
\n     to be  resorted to\t with great  care  and\ton
\n     ample evidence produced by the applicant that
\n     the action\t abroad is  really  vexatious  and
\n     useless.”\n<\/p><\/blockquote>\n
The principle  enunciated for  a  plaintiff  in\t a
\nearlier instituted  suit to  successfully  urge\t a
\nrestraint  order   against   a\t subsequent   suit
\ninstituted by  the defendant,  is stated  thus\tin
\nthis case, at page 415:\n<\/p>\n
\t  “It  appears\t to  me\t that  unless  the
\n     applicant\tsatisfies   the\t Court\t that\tno
\n     advantage can  be gained  by the defendant by
\n     proceeding with  the action  in which  he\tis
\n     plaintiff\tin  another  part  of  the  King’s
\n     dominions, the Court should not stop him from
\n     proceeding
\n465<\/span>
\n     with  the\t only  proceedings  which  he,\tas
\n     plaintiff, can  control.  The  principle  has
\n     been repeatedly acted upon.”\n<\/p><\/blockquote>\n
The injunction\torder in  dispute is  not based on
\nany such  principle. In fact, in the present case,
\nit is  the defendant  of the previously instituted
\nsuit  that   has  obtained  the\t injunction  order
\nagainst the plaintiff of the previously instituted
\nsuit.\n<\/p>\n
     The considerations\t which would  make a  suit
\nvexatious are well explained in Hyman v. Helm (1).
\nIn that\t case, the  defendant, in an action before
\nthe Chancery Division of the High Court brought an
\naction against\tthe plaintiffs\tin San\tFrancisco.
\nThe plaintiffs, is an action in England, prayed to
\nthe  Court   to\t restrain   the\t defendants   from
\nproceeding  further   with  the\t  action  in   San
\nFrancisco. It  was contended that it was vexatious
\nfor the\t defendants to\tbring the  action  in  San
\nFrancisco as  the witnesses  to\t the  action  were
\nresidents of  England, the  contract  between  the
\nparties was  an\t English  contract  and\t that  its
\nfulfilment took place is England. In repelling the
\ncontention that\t the defendants’ subsequent action
\nin San Francisco was vexatious, Brett, M. R., said
\nat page 537:\n<\/p>\n
\t  “If that  makes an  action vexatious\tit
\n     would be a ground for the interference of the
\n     Court,  although  there  were  no\taction\tin
\n     England at\t all, the  ground for alleging the
\n     action in San Francisco to be vexatious being
\n     that it  is brought in an inconvenient place.
\n     But that is not the sort of vexation on which
\n     an English Court can act.\n<\/p><\/blockquote>\n
\t  It seems to me that where a party claims
\n     this  interference\t  of  the  Court  to  stop
\n     another action  between the  same parties, it
\n     lies upon\thim to\tshew to the Court that the
\n     multiplicity of  actions  is  vexatious,  and
\n     that the whole burden of proof lies upon him.
\n     He does  not satisfy  that burden of proof by
\n     merely she-\n<\/p><\/blockquote>\n
466<\/span><\/p>\n
     wing that there is a multiplicity of actions,
\n     he\t must  go  further.  If\t two  actions  are
\n     brought by\t the same  plaintiff  against  the
\n     same defendant  in England for the same cause
\n     of action,\t then, as  was said  in Mchonry v.
\n     Lewis (22\tCh. D.\t397) and  the case  of the
\n     Peruvian Guano  Company v.\t Bockwoldt (23 Ch.
\n     D. 225),  prima facie  that is vexatious, and
\n     therefore the  party who  complains of such a
\n     multiplicity of  actions had made out a prima
\n     facie case for the interference of the Court.
\n     Where there  is an\t action by  a plaintiff in
\n     England, and  a crossaction by a defendant in
\n     England, whether the same prima facie case of
\n     vaxation arises  is  a  much  more\t difficult
\n     point to  decide and I am not prepared to say
\n     that it does.”\n<\/p><\/blockquote>\n
It should  be noticed  that this  question for\tan
\naction being  vexatious was  being considered with
\nrespect to  the subsequent  action brought  by the
\ndefendant in  the previously  instituted suit  and
\nwhen  the   restraint  order  was  sought  by  the
\nplaintiff of  the earlier suit. In the case before
\nus, it is the plaintiff of the subsequent suit who
\nseeks to  restrain the\tplaintiff of  the  earlier
\nsuit from proceeding with his suit. This cannot be
\njustified on  general principles when the previous
\nsuit has been instituted in a competent Court.\n<\/p>\n
     The reasons  which\t weighed  with\tthe  Court
\nbelow for  maintaining the order of injunction may
\nbe given in its own words as follows:\n<\/p>\n
\t  “In the  plaint  filed  in  the  Asansol
\n     Court the\tdefendant has  based his  claim on
\n     the deed  of dissolution  dated 22, 1945, but
\n     has avoided  all references to the provisions
\n     regarding the agreement to place the disputes
\n     before the\t Indore Courts.\t It was\t an action
\n     taken   by\t   the\t present    defendant\tin
\n     anticipation of  the  present  suit  and  was
\n     taken in flagrant breach
\n467<\/span>
\n     of the  terms of the contract. In my opinion,
\n     the defendant’s action constitutes misuse and
\n     abuse of the process of the Court.”\n<\/p><\/blockquote>\n
The appellant  attached the deed of dissolution to
\nthe plaint  he filed at Asansol. Of course, he did
\nnot state  specifically in  the plaint\tabout  the
\nproviso with respect to the forum for the decision
\nof the dispute. Even if he had mentioned the term,
\nthat would  have made no difference to the Asansol
\nCourt entertaining the suit, as it is not disputed
\nin these  proceedings that  both  the  Indore  and
\nAsansol Courts\tcould try the suit in spite of the
\nagreement. The appellant’s institution of the suit
\nat Asansol cannot be said to be in anticipation of
\nthe suit  at Indore,  which followed  it by  a few
\nmonths. There is nothing on the record to indicate
\nthat the  appellant  knew,  at\tthe  time  of  his
\ninstituting the\t suit,\tthat  the  respondent  was
\ncontemplating the institution of a suit at Indore.
\nThe notices  which  the\t respondent  gave  to  the
\nappellant were\tin December  1945.  The\t suit  was
\nfiled at  Asansol in  August 1948,  more than  two
\nyears  and   a\thalf   after   the   exchange\tof
\ncorrespondence referred\t to in the plaint filed at
\nAsansol.\n<\/p>\n
     In fact,  it is the conduct of the respondent
\nin applying  for the injunction in September 1953,
\nknowing full  well of  the order  of the  Calcutta
\nHigh Court  confirming the  order refusing stay of
\nthe Asansol  suit  and\tdirecting  that\t Court\tto
\nproceed\t with\tthe  decision\tof  the\t issue\tof
\njurisdiction at\t an early  date, which can be said
\nto amount to an abuse of the process of the Court.
\nIt was\treally in  the respondent’s interest if he
\nwas  sure   of\this   ground  that  the\t issue\tof
\njurisdiction  be  decided  by  the  Asansol  Court
\nexpeditiously, as  ordered by  the  Calcutta  High
\nCourt in  May  1953.  If  the  Asansol\tCourt  had
\nclearly no jurisdiction to try the suit in view of
\nthe terms of the deed of dissolution, the decision
\nof that issue
\n468<\/span>
\nwould have finished the Asansol suit for ever. He,
\nhowever, appears  to have  avoided a  decision\tof
\nthat  issue   from  that  Court\t and,  instead\tof
\nsubmitting to  the  order  of  the  Calcutta  High
\nCourt, put  in this application for injunction. It
\nis not\tunderstandable why  the appellant  did not
\nclearly state  in his objection to the application
\nwhat the  High Court of Calcutta had ordered. That
\nmight have  led the  consideration of the question
\nby the Indore Court in a different perspective.\n<\/p>\n
     It\t is   not  right   to  base  an\t order\tof
\ninjunction, under  s. 151 of the Code, restraining
\nthe plaintiff  from proceeding\twith his  suit\tat
\nAsansol, on  the consideration\tthat the  terms of
\nthe deed  of dissolution  between the parties make
\nit a  valid contract  and the  institution of  the
\nsuit at\t Asansol is  in breach of it. The question
\nof jurisdiction\t of the\t Asansol  Court\t over  the
\nsubject matter\tof the\tsuit  before  it  will\tbe
\ndecided by  that Court.\t The Indore  Court  cannot
\ndecide that  question. Further,\t it is not for the
\nIndore Court  to see  that the\tappellant observes
\nthe terms  of the  contract and\t does not file the
\nsuit in\t any other  Court. It  is only\tin  proper
\nproceedings  when   the\t Court\tconsiders  alleged
\nbreach of contract and gives redress for it.\n<\/p>\n
     For the  purposes of  the present\tappeal, we
\nassume that  the jurisdiction of the Asansol Court
\nis not\tousted by the provisions of the proviso in
\nthe deed  of dissolution, even though that proviso
\nexpresses the  choice of  the parties  for  having
\ntheir disputes decided in the Court at Indore. The
\nappellant therefore  could  choose  the\t forum\tin
\nwhich to  file his  suit. He  chose the\t Court\tat
\nAsansol, for his suit. The mere fact that Court is
\nsituate at  a long  distance  from  the\t place\tof
\nresidence of  the respondent  is not sufficient to
\nestablish that\tthe suit  has been  filed in  that
\nCourt in  order to  put the  respondent to trouble
\nand harassment and to unnecessary expense.\n<\/p>\n
469<\/span><\/p>\n
     It cannot\tbe denied that it is for the Court
\nto control  the proceedings  of the suit before it
\nand not\t for  a\t party,\t and  that  therefore,\tan
\ninjunction to  a party\twith respect to his taking
\npart in\t the proceedings  of  the  suit\t would\tbe
\nputting\t that\tparty  in   a  very   inconvenient
\nposition.\n<\/p>\n
     It has been said that the Asansol Court would
\nnot act\t in a way which may put the appellant in a
\ndifficult position  and\t will  show  a\tspirit\tof
\ncooperation with the Indore Court. Orders of Court
\nare not\t ordinarily based  on such  considerations
\nwhen there be the least chance for the other Court
\nnot to\tthink in  that way. The narration of facts
\nwill indicate  how each\t Court has  been acting on
\nits own view of the legal position and the conduct
\nof the parties.\n<\/p>\n
     There have been case in the past, though few,
\nin  which   the\t Court\ttook  no  notice  of  such
\ninjunction orders  to the  party in  a suit before
\nthem.  They   are:  Menon  v.  Parvathi\t Ammal(1),
\nHarbhagat Kaur v. Kirpal Singh (2) and Shiv Charan
\nLal v. Phool Chand (3). In the last case, the Agra
\nCourt issued  an injunction  against the plaintiff
\nof a suit at Delhi restraining him from proceeding
\nwith that  suit. The Delhi Court, holding that the
\norder of  the Agra  Court did not bind it, decided
\nto  proceed   with  the\t  suit.\t This  action  was
\nsupported by the High Court. Kapur J., observed at
\npage 248:\n<\/p>\n
\t  “On the  facts as  have been\tproved\tit
\n     does  appear  rather  extra-ordinary  that\t a
\n     previously instituted  suit should\t be sought
\n     to\t be   stayed  by   adopting  this   rather
\n     extraordinary procedure.”<\/p><\/blockquote>\n
     It is  admitted that  the Indore  Court could
\nnot have  issued an  induction or direction to the
\nAsansol Court  not to  proceed with  the suit. The
\neffect of  issuing an  injunction to the plaintiff
\nof the
\n470<\/span>
\nsuit at\t Asansol, indirectly  achieves the  object
\nwhich an  injunction to the Court would have done.
\nA court\t ought not  to achieve\tindirectly what it
\ncannot do  directly. The  plaintiff, who  has been
\nrestrained, is\texpected to  bring  the\t restraint
\norder to  the notice  of the Court. If that Court,
\nas expected  by the  Indore  Court,  respects  the
\ninjunction order  against the  appellant and  does
\nnot proceed  with the  suit, the  injunction order
\nissued to  the appellant  who is  the plaintiff in
\nthat suit  is as  effective an order for arresting
\nthe progress  of that  suit as an injunction order
\nto the Court would have been. If the Court insists
\non proceeding  with the\t suit, the  plaintiff will
\nhave either to disobey the restraint order or will
\nrun the\t risk of his suit being dismissed for want
\nof prosecution.\t Either\t of  these  results  is\t a
\nconsequence which an order of the Court should not
\nordinarily lead to.\n<\/p>\n
     The suit  at Indore which had been instituted
\nlater, could  be stayed\t in view  of s.\t 10 of the
\nCode. The  provisions of  that section\tare clear,
\ndefinite  and\tmandatory.  A  Court  in  which\t a
\nsubsequent suit\t has been filed is prohibited from
\nproceeding with\t the trial of that suit in certain
\nspecified circumstances.  When there  is a special
\nprovision in  the  Code\t of  Civil  Procedure  for
\ndealing with  the contingencies\t of two such suits
\nbeing instituted,  recourse to the inherent powers
\nunder s.  151 is  not justified. The provisions of
\ns. 10  do  not\tbecome\tinapplicable  on  a  Court
\nholding that  the previously  instituted suit is a
\nvexatious suit or has been instituted in violation
\nof the\tterms of  the contract. It does not appear
\ncorrect to say, as has been said in Ram Bahadur v.
\nDevidayal Ltd.\t(1) that  the Legislature  did not
\ncontemplate the\t provisions of s. 10 to apply when
\nthe previously\tinstituted  suit  be  held  to\tbe
\ninstituted in  those circumstances. The provisions
\nof s.  35A indicate that the Legislature was aware
\nof false or vexatious claims or defences
\n471<\/span>
\nbeing made, in suits, and accordingly provided for
\ncompensatory  cost.  The  Legislature  could  have
\ntherefore provided  for the non-application of the
\nprovisions of s. 10 in those circumstances, but it
\ndid not.  Further, s.  22 of the Code provides for
\nthe transfer  of a  suit to  another Court  when a
\nsuit which  could be  instituted in any one of two
\nor more\t Courts\t is  instituted\t in  one  of  such
\nCourts. In view of the provisions of this section,
\nit was\topen to\t the respondent\t to apply  for the
\ntransfer of  the suit  at Asansol  to  the  Indore
\nCourt and, if the suit had been transferred to the
\nIndore Court,  the two suits could have been tried
\ntogether.  It\tis  clear,   therefore,\t that  the
\nLegislature had\t contemplated the  contingency\tof
\ntwo suits  with respect\t to similar  reliefs being
\ninstituted and of the institution of a suit in one
\nCourt when  it could also be instituted in another
\nCourt and  it be  preferable, for certain reasons,
\nthat the suit be tried in that other Court.\n<\/p>\n
     In view  of the various considerations stated
\nabove, we  are of  opinion that\t the  order  under
\nappeal cannot  be sustained  and cannot be said to
\nbe an  order necessary in the interests of justice
\nor to  prevent the  abuse of  the process  of  the
\nCourt. We  therefore allow  the appeal with costs,
\nand set\t aside the order restraining the appellant
\nfrom proceeding with the suit at Asansol.\n<\/p>\n
     SHAH,  J.-I   have\t  perused   the\t  judgment
\ndelivered by  Mr. Justice  Dayal. I agree with the
\nconclusion that\t the appeal  must succeed but I am
\nunable to  hold that  civil courts  generally have
\ninherent jurisdiction  in cases not covered by rr.
\n1 and  2 of  O. 39,  Civil Procedure Code to issue
\ntemporary injunctions  restraining parties  to the
\nproceedings before  them from  doing certain acts.
\nThe powers  of courts,\tother than  the\t Chartertd
\nHigh Courts,  in the  exercise of  their  ordinary
\noriginal Civil\tjurisdiction  to  issue\t temporary
\ninjunctions  are   defined  by\tthe  terms  of\ts.
\n94(1)(c) and
\n472<\/span>
\nO.  39,\t  Civil\t Procedure   Code.   A\t temporary
\ninjunction may\tissue if  it is\t so prescribed\tby
\nrules in  the Code. The provisions relating to the
\nissue of  temporary injunctions are to be found in
\nO. 39  rr. 1  and 2: a temporary injunction may be
\nissued only  in those  cases which  come  strictly
\nwithin those  rules, and normally the civil courts
\nhave   no    power   to\t  issue\t  injunctions\tby
\ntransgressing the limits prescribed by the rule.\n<\/p>\n
     It is  true that  the High Courts constituted
\nunder Charters\tand exercising\tordinary  original
\njurisdiction do\t exercise inherent jurisdiction to
\nissue an  injunction to restrain parties in a suit
\nbefore\tthem  from  proceedings\t with  a  suit\tin
\nanother court,\tbut that  is because the Chartered
\nHigh  Courts   claim  to   have\t  inherited   this
\njurisdiction from the Supreme Courts of which they
\nwere successors.  This jurisdiction would be saved
\nby s.  9 of  the Charter  Act (24  and 25 Vict. c.\n<\/p>\n
104) of\t 1861, and in the Code of Civil Procedure,
\n1908 it\t is expressly  provided by  s. 4.  But the
\npower of the civil courts other than the Chartered
\nHigh Courts  must be  found within s. 94 and O. 39
\nrr. 1 and 2 of the Civil Procedure Code.\n<\/p>\n
     The Code  of Civil\t Procedure is  undoubtedly
\nnot exhaustive:\t it does  not lay  down rules  for
\nguidance in  respect of all situations nor does it
\nseek  to   provide  rules   for\t decision  of  all
\nconceivable  cases  which  may\tarise.\tThe  civil
\ncourts are  authorised to  pass such orders(as may
\nbe necessary  for  the\tends  of  justice,  or\tto
\nprevent abuse  of the  process of court, but where
\nan express  provision is made to meet a particular
\nsituation the  Code must be observed, an departure
\ntherefrom is not permissible. As observed in L. R.
\n62 I.  A. 80 (Maqbul Ahmed v. Onkar Pratab) “It is
\nimpossible to  hold that  in  a\t matter\t which\tis
\ngoverned by an Act, which in some limited respects
\ngives the  court a statutory discretion, there can
\nbe implied in
\n473<\/span>
\ncourt, outside\tthe limits  of the  Act a  general
\ndiscretion to  dispense with the provisions of the
\nAct.” Inherent\tjurisdiction of\t the court to make
\norder ex  debito justitiae is undoubtedly affirmed
\nby s.  151 of  the  Code,  but\tthat  jurisdiction
\ncannot\tbe   exercised\tso   as\t to   nullify  the
\nprovisions of  the  Code.  Where  the  Code  deals
\nExpressly with\ta particular matter, the provision
\nshould normally be regarded as exhaustive.\n<\/p>\n
     Power to issue an injunction is restricted by
\ns. 94  and O.  39, and it is not open to the civil
\ncourt which  is not  a\tChartered  High\t Court\tto
\nexercise  that\t power\tignoring  the  restriction
\nimposed there  by, in  purported exercise  of  its
\ninherent jurisdiction.\tThe decision of this Court
\nin Padam Sen v. The State of Uttar Pradesh<\/a>(1) does
\nnot assist  the case  of the  appellant. In  Padam
\nSen’s  case  this  Court  was  called  upon  is\t a
\noriginal appeal\t to consider whether an order of a
\nMunsiff\t appointing  a\tcommissioner  for  seizing
\ncertain account\t books of  the plaintiff in a suit
\npending before the Munsiff was an order authorised
\nby law.\t It was\t the case for the prosecution that
\nthe appellants offered a bribe to the commissioner
\nas consideration  for being allowed to tamper with
\nentries\t therein,   and\t thereby   the\tappellants
\ncommitted an  offence punishable  under s. 165A of
\nthe Indian  Penal Code.\t This Court  held that the
\ncommissioner  appointed\t by  the  civil\t court\tin
\nexercise of  powers under O. 26 C. P. Code did not
\nhold any  office  as  a\t public\t servant  and  the
\nappointment   by   the\t Munsiff   being   without
\njurisdiction, the commissioner could not be deemed
\nto be  a  public  servant.  In\tdealing\t with  the
\nargument of  counsel for  the appellants  that the
\ncivil court  had  inherent  powers  to\tappoint\t a
\ncommissioner in exercise of authority under s. 151
\nCivil Procedure\t Code for  purposes which  do  not
\nfall
\n474<\/span>
\nwithin the  provisions of  s. 75  and O.  26 Civil
\nProcedure Code, the Court observed:\n<\/p>\n
\t  “Section 75  of the  Code  empowers  the
\n     Court  to\tissue  a  commission,  subject\tto
\n     conditions\t and   limitations  which  may\tbe
\n     prescribed,  for  four  purposes,\tviz.,  for
\n     examining any person, for making or adjusting
\n     accounts and  for making  a partition.  Order
\n     XXVI lays down rules relating to the issue of
\n     commissions   and\t  allied   matters.    Mr.
\n     Chatterjee,   learned    counsel\t of    the
\n     appellants, has  submitted that the powers of
\n     a Court must be found within the four corners
\n     of the  Code  and\tthat  when  the\t Code  has
\n     expressly dealt  with the\tsubject matter\tof
\n     commissions in  s. 75 the Court cannot invoke
\n     its inherent  powers under s. 151 and thereby
\n     add to  its powers.  On the other hand, it is
\n     submitted for the State, that the Code is not
\n     exhaustive and  the Court, in the exercise of
\n     its inherent  powers, can adopt any procedure
\n     not prohibited  by the  Code expressly  or by
\n     necessary implication  if the Court considers
\n     it necessary  for the  ends of  justice or to
\n     prevent abuse of the process of the Court.\n<\/p><\/blockquote>\n
\t  x\t\t     x\t\t\t x\nx\n\t  x\t\t     x\t\t\t x\nx\n<\/pre>\n
     The inherent  powers  of  the  Court  are\tin
\n     addition to the powers specifically conferred
\n     on\t the   Court  by   the\tCode.\tThey   are
\n     complementary to  those powers  and therefore
\n     it must  be held  that the\t Court is  free to
\n     exercise them  for the  purposes mentioned in
\n     s. 151 of the Code when the exercise of those
\n     powers is\tnot in\tany way\t in conflict  with
\n     what has  been expressly provided in the Code
\n     or against the intentions of the Legislature.
\n     It is  also well recognized that the inherent
\n     power is  not to  be exercised  in\t a  manner
\n     which will be
\n475<\/span>
\n     contrary  or  different  from  the\t procedure
\n     expressly provided in the Code.”\n<\/p><\/blockquote>\n
The Court  in that  case held  that in exercise of
\nthe powers  under s.  151 of  the  Code\t of  Civil
\nProcedure,  1908   the\tCourt\tcannot\t issue\t a
\ncommission  for\t  seizing  books   of  account\tof
\nplaintiff-a purpose  for which a commission is not
\nauthorized to be issued by s. 75.\n<\/p>\n
     The principle  of the  case is destructive of
\nthe  submission\t of  the  appellants.  Section\t75
\nempowers the  Court  to\t issue\ta  commission  for
\npurposes specified  therein: even though it is not
\nso expressly  stated that  there is  no\t power\tto
\nappoint\t a  commissioner  for  other  purposes,\t a
\nprohibition to\tthat effect is, in the view of the
\nCourt in  Padam Sen’s  case, implicit in s. 76. By
\nparity\tof   reasoning,\t if  the  power\t to  issue
\ninjunctions may\t be exercised, if it is prescribed
\nby rules  in the  Orders in Schedule I, it must he
\ndeemed to  be not  exercisable in any other manner
\nor for\tpurposes other than those set out in O. 39
\nrr. 1 and 2.\n<\/p>\n
\t\t\t\t   Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal on 16 November, 1961 Equivalent citations: 1962 AIR 527, 1962 SCR Supl. (1) 450 Author: R Dayal Bench: Dayal, Raghubar PETITIONER: MANOHAR LAL CHOPRA Vs. RESPONDENT: RAI BAHADUR RAO RAJA SETH HIRALAL DATE OF JUDGMENT: 16\/11\/1961 BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-4355","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nManohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal on 16 November, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manohar-lal-chopra-vs-rai-bahadur-rao-raja-seth-hiralal-on-16-november-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal on 16 November, 1961 - 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