Friday, 27 May 2016

Whether appeal is tenable if trial court has issued show cause notice in application for temporary injunction? -

Section 94 of the CPC provides, inter alia, that in order to
prevent the ends of justice from being defeated the court may, if
it is so prescribed, inter alia, grant a temporary injunction and in
case of disobedience committ a person guilty thereof to the civil
prison and/or make such other interlocutory orders as may appear
to the court to be just and convenient. Section 94 inescapably
refers to Rules 1 and 2 of Order 39 of the CPC which have been
set out hereinabove. (30) It may not be proper to say that the court derives its
jurisdiction to pass an order of injunction from Section 94. It is too
well established that the Court has an inherent power to pass an
order of injunction where the facts and circumstances of a case
so warrant to do complete justice between the parties. Section
151 of the CPC recognises such inherent power. Section 94 of the
CPC expressly recognises the court’s power to issue an order of
injunction and Order 39 Rules 1 and 2 indicate the circumstances
in which the court may exercise its power to grant temporary
injunction. If circumstances which are not covered by Rules 1 and
2 of Order 39, warrant issuance of injunction, the court can still do
it in exercise of its inherent jurisdiction.
(31) In the case of Manoharlal-vs.-Seth Hiralal reported in AIR 1962
SC 527 it was held as per the majority view that it is well settled
that the provisions of the Code are not exhaustive, for the simple
reason that the legislature is incapable of contemplating all the
possible circumstances which may arise in future litigation and
consequently for providing the procedure for them. The effect of
the expression ‘if it is so prescribed’ in Section 94 of the Code is
only this that when the Rules in Order 39 prescribe the circumstances in which temporary injunction can be issued,
ordinarily the court is not to use its inherent power to make the
necessary orders in the interest of justice, but is merely to see
whether the circumstances of the case bring it within the
prescribed rule. If the provisions of Section 94 were not there in
the Code, the Court could still issue temporary injunctions, but it
could do that in the exercise of its inherent jurisdiction. It is in the
incidence of the exercise of the power of court to issue temporary
injunction that the provisions of Section 94 of the Code have their
effect and in not taking away the right of the court to exercise its
inherent power. The court has inherent jurisdiction to issue
temporary injunctions which are not covered by the provisions of
Order 39 of the Code if the court is of the opinion that the interest
of justice requires the issuance of such interim injunction.
(32) On a meaningful reading of the Code of Civil Procedure,
1908 and upon careful consideration of the precedents discussed
above I am of the view that the body of the Code comprising the
Sections confer substantive powers on the Court whereas the
Orders and Rules contained in the first schedule to the Code
prescribe the manner in which such powers are to be exercised. In certain cases, the Orders and Rules also indicate the
circumstances in which the powers under the Sections should be
exercised. To this extent, the Sections of the Code are substantive
in nature and the Orders and Rules in the First Schedule thereto
are procedural in nature.
(33) Section 94 (c) of the Code empowers the Court to grant a
temporary injunction. This, according to me, is the parental
source of the Court’s power to grant an order of injunction under
the Code. Order 39 Rules 1 and 2 indicate the circumstances in
which the court may exercise its power under Section 94 of the
Code. These circumstances are by no means exhaustive in the
sense that the Court’s power to issue a temporary injunction is not
limited to the circumstances prescribed by Rules 1 and 2 of Order
39. In any other facts and circumstances not covered by Rules 1
and 2 of Order 39, if justice do demands, the court can issue a
temporary injunction in the exercise of its inherent power. Such
power has always inhered in a court of law to be exercised for
doing complete justice between the parties. Justice is above all
and cannot be thwarted or defeated by technicalities. Section
151 of the Code recognises such inherent power of the Court. Such inherent power of the Court must be recognized as it is
impossible to visualize all the circumstances that may arise in
future while enacting a law or framing procedural rules. The
inherent power is generally exercised to fill up a lacuna in the law
and mainly on equitable considerations when the circumstances
of a case so warrant.
(34) While hearing an application under Order 39 Rules 1 and 2 of
the Code, the court exercises its power essentially under Section
94 of the Code. Section 94 is the repository of the court’s power to
grant temporary injunction under the Code. With the power to
grant injunction, comes power to grant an ex parte injunction.
Such power is exercised by the court when it feels that there is
such urgency in the matter that the plaintiff will suffer irreparable
prejudice or substantial hardship if the court waits to pass an order
until after notice is served on the defendant or when the court
feels that giving of notice to the defendant before granting
temporary injunction might prompt the defendant to commit the
very mischief that the plaintiff is apprehending thereby rendering
the plaintiff’s application infructuous. No strait jacket formula can
be laid down as to when the court should grant an ex parte injunction. To put it briefly, an ex parte injunction will be issued
only if it appears to the court that the object of granting the
injunction would be defeated by the delay entailed in serving
notice on the defendant.
(35) However, when the court issues an ex parte injunction, it is
required to follow the procedure mentioned in Rule 3 of Order 39.
In my view, the provisions of Rule 3 of Order 39 are merely
procedural. The court’s power to grant ex parte injunction does
not stem from Rule 3 of Order 39. When a court passes or refuses
to pass an ex parte order of injunction on an application under
Order 39 Rules 1 and 2, the court exercises its power under Section
94 of the Code read with Order 39 Rules 1 and 2. The power of
the court to pass an order of injunction, be it ex parte or upon
hearing both the parties, is discretionary and in passing such an
order or in declining to pass such an order the court exercises such
discretion under Section 94 of the Code read with Order 39 Rules 1
and 2 thereof. Just as an ex parte order of temporary injunction
may affect the defendant, refusal to pass an ex parte order of
temporary injunction may also adversely affect the plaintiff. In both cases rights of the parties are decided one way or the other
albeit for a limited period of time.
(36) In this connection it may be noted that the Hon’ble Supreme
Court in the case of A. Venkatasubbiah Naidu (supra) at
paragraph 10 of the judgment observed that Order 39 Rule 1 of
the CPC is the repository of the power to grant orders of
temporary injunction with or without notice, interim or temporary,
till further orders or till the disposal of the suit.
(37) I am in respectful agreement with the decision of this Court in
the case of Fiona Ray (supra) that Order 39 Rule 3 is merely
procedural and unlike Rules 1 and 2 of Order 39, the same does
not deal with the circumstances under which temporary or ad
interim injunction may be granted.
(38) In the light of the aforesaid I am of the firm opinion that when
an order is passed by a court on an application under Order 39
Rules 1 and 2 of the CPC refusing to issue ex parte ad interim
injunction and directing service of notice on the defendant, the
same is an order passed under Section 94 read with Order 39 Rules
1 and 2 and not under Order 39 Rule 3 thereof. It is also significant
that whereas Order 39 Rule 3 requires the court to record reasons justifying issuance of an ex parte injunction, no such requirement
for recording reasons is prescribed where the court declines to
pass an ex parte order of injunction and simply directs service of
notice on the defendant.
(39) I am inclined to accept and in agreement with the
submissions made by Mr. Banerjee, Ld. Counsel for the petitioners,
which I have noted above and which I do not repeat here to
avoid undue prolixity.
(40) With respect, I am unable to agree with the views of the
other High Courts discussed above which have held that an order
refusing to pass an ex parte order of injunction and merely
directing service of notice on the defendant is one under Order 39
Rule 3 of the CPC.
(41) Since I have come to the conclusion that an order refusing
grant of ex parte injunction and directing issuance of notice to the
defendant is also an order passed in exercise of power under
Section 94 read with Section 39 Rules 1 and 2 of the CPC, it follows
that such an order is an appealable order as provided in Order 43
Rule 1 (r) of the Code. I am of the opinion that a remedial
provision in a statute, whether by way of an original proceeding or by way of an appeal should be construed in a liberal and
expansive manner rather than in a restrictive way.

(42) In view of the aforesaid, I am unable to sustain the judgment
and order whereby the appellate court dismissed the petitioner’s
appeal on the ground that the order of the Ld. Trial Judge was not
an appealable order. According to the view, I have taken the Ld.
Trial Court’s order was an order under Order 39 Rules 1 and 2 of
the CPC and hence appealable as provided in Order 43 Rule 1 (r)
of the Code. The further view of the appellate court that it did not
have the power to pass ad interim injunction is also erroneous in
law. Section 107 (2) of the CPC provides that the appellate court
shall have the same powers as are conferred by CPC on courts of
original jurisdiction.
In the High Court At Calcutta
Civil Revisional Jurisdiction
Appellate Side
CO 2191 of 2013
Nanda Roy & Ors.
-Vs.-
Gynanidhi Trust & Ors.
Coram : The Hon’ble Justice Arijit Banerjee
Judgment : 09/09/2015
Citation: AIR 2016(NOC)289 Cal


(1) In this revisional application the petitioners challenge a
judgment and order dated 24th April, 2013 passed by the Ld.
Additional District Judge, 11th Court at Alipore, District South 24
Parganas in Misc. Appeal No. 200 of 2011 dismissing an appeal
against an order dated 21st April, 2011 passed by the Ld. Civil
Judge (Junior Division), 1st Court at Alipore, District 24 Parganas South in Title Suit No. 1163 of 2011. By the order dated 21st April,
2011 the Ld. Trial Judge refused to pass an ex parte ad interim
order of injunction on an application under Order 39 Rules 1 and 2
of the Code of Civil Procedure and directed issuance of notice
upon the defendants to show cause as to why the prayer for
temporary injunction shall not be allowed. Being aggrieved, the
petitioners herein who are the plaintiffs in the suit, preferred Misc.
Appeal No. 200 of 2011 before the Ld. Addl. District Judge. By the
judgment and order impugned in the present application the Ld.
Addl. District Judge held that the appeal was not maintainable.
(2) The sole question that arises for consideration by this court is
whether an order by which the Lower Court directs issuance of
notice to the defendant but declines to grant an ex parte ad
interim order is an appealable order.
(3) Before discussing the various decisions cited by Ld. Counsel
for the parties and decisions considered by the Appellate Court, it
would be useful to take note of Order 39 Rules 1, 2 and 3 of the
Code of Civil Procedure which provide as follows:-
“O. 39 R. 1. Case in which temporary injunction may be granted. –
Where in any suit it is proved by affidavit or otherwise – (a) that any property in dispute in a suit is in danger of
being wasted, damaged or alienated by any party to
the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or
dispose of his property with a view to (defrauding) his
cereditors,
[(c) that the defendant threatens to dispossess, the plaintiff
or otherwise cause injury to the plaintiff in relation to
any property in dispute in the suit,]
the Court may by order grant a temporary injunction to restrain
such act, or make such other order for the purpose of staying and
preventing the wasting, damaging, alienation, sale, removal or
disposition of the property [or dispossession of the plaintiff, or
otherwise causing injury to the plaintiff in relation to any property
in dispute in the suit] as the Court think fit, until the disposal of the
suit or until further orders.
R. 2. Injunction to restrain repetition or continuance of breach. –
(1) In any suit for restraining the defendant from committing a
breach of contract or other injury of any kind, whether
compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or
after judgment, apply to the Court for a temporary injunction to
restrain the defendant from committing the breach of contract of
injury complained, of, or any breach contract or injury of a like
kind arising out of the same contract or relating to the same
property or right.
R. 3. Before granting injunction, Court to direct notice to opposite
party. – The Court shall in all cases, except where it appears that
the object of granting the injunction would be defeated by the
delay, before granting an injunction, direct notice of the
application for the same to be given to the opposite party:
[Provided that, where it is proposed to grant an injunction
without giving notice of the application to the opposite party, the
Court shall record the reasons for its opinion that the object of
granting the injunction would be defeated by delay, and require
the applicant –
(a) to deliver to the opposite party, or to send him by
registered post, immediately after the order granting
the injunction has been made, a copy of the
application for injunction together with – (i) a copy of the affidavit filed in support of the
application.
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or
on the day immediately following that day, an affidavit
stating that the copies aforesaid have been so
delivered or sent.]”
(4) Section 104 of the CPC provides that an appeal shall lie from
the orders specified therein and save as otherwise expressly
provided in the body of the CPC or by any law for the time being
in force, from no other orders. Section 104 (1)(i) provides that an
appeal shall lie from any order made under the Rules from which
an appeal is expressly allowed by the Rules.
(5) Order XLIII Rule 1 (r) of the CPC provides that an appeal shall
lie under the provisions of Section 104 from an order under Rule 1,
Rule 2, Rule 2 (A), Rule 4 or Rule 10 of Order XXXIX. Thus, an order
passed under Order 39 Rule 1 or Rule 2 of the CPC is an
appealable order. However, an order passed under Order 39 Rule
3 is not appealable. The question thus boils down to whether the order passed by the Ld. Trial Court in the instant case can be said
to be an order under Order 39 Rule 1 or 2, in which case an
appeal would lie therefrom or whether such order is an order
under Order 39 Rule 3 of the Code of Civil Procedure, in which
case, it would not be an appealable order.
(6) The Ld. Appellate Court took note of the following decisions
while coming to the conclusion that the order in question is not
appealable:-
(A) A. Venkatasubbiah Naidu-vs.-S. Challappan reported in AIR
2000 SC 3032. In this case the Ld. Trial Judge had passed an ex
parte ad interim order of injunction and directed compliance with
Order 39 Rule 3 of the CPC. The defendant challenged the said
order by way of a revisional application under Article 227 of the
Constitution. Ld. Single Judge of the Madras High Court observed
that the Trial Court ought not have granted order of injunction
which could operate beyond 30 days. The High Court set aside
the order of injunction. In appeal, the Hon’ble Apex Court at
paragraphs 10 and 18 of the judgment observed, inter alia, as
follows:- “10. It cannot be contended that the power to pass interim ex
parte orders of injunction does not emanate from the said Rule. In
fact, the said rule is the repository of the power to grant orders of
temporary injunction with or without notice, interim or temporary,
or till further orders or till the disposal of the suit. Hence, any order
passed in exercise of the aforesaid powers in Rule 1 would be
appealable as indicated in Order 43 Rule 1 of the Code. The
choice is for the party affected by the order either to move the
appellate court or to approach the same court which passed the
ex parte order for any relief.
18. It is the acknowledged position of law that no party can be
forced to suffer for the inaction of the court or its omissions to act
according to the procedure established by law. Under the normal
circumstances the aggrieved party can prefer an appeal only
against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of
the Code in terms of Order 43 Rule 1 of the Code. He cannot
approach the appellate or revisional court during the pendency
of the application for grant or vacation of temporary injunction. In
such circumstances the party who does not get justice due to the
inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate
of Order 39 Rule 3A of the Code is flouted, the aggrieved party,
shall be entitled to the right of appeal notwithstanding the
pendency of the application for grant or vacation of a temporary
injunction, against the order remaining in force. In such appeal, if
preferred, the appellate court shall be obliged to entertain the
appeal and further to take note of the omission of the subordinate
court in complying with the provisions of Rule 3A. In appropriate
cases the appellate court, apart from granting or vacating or
modifying the order of such injunction, may suggest suitable
action against the erring judicial officer, including
recommendation to take steps for making adverse entry in his
ACRs. Failure to decide the application or vacate the ex-parte
temporary injunction shall, for the purposes of the appeal, be
deemed to be the final order passed on the application for
temporary injunction, on the date of expiry of thirty days
mentioned in the Rule.”
(B) H. Bevis & Co.-vs.-Ram Behari reported in AIR 1951 All 8. In
this case the Allahabad High Court held that when the Court
refuses to grant an ex parte injunction and issues notice to other side, it has passed no order under Rule 1 or Rule 2 of Order 39 of
the CPC, and, therefore, no appeal can lie from such an order.
(C) Iqbal Singh-vs.-Chanan Singh reported in AIR 1966 P & H 165.
In this case it was urged on behalf of the plaintiff that whenever a
Civil Court passed an order either granting or declining to grant
an injunction, whether ex parte or not and whether with or without
notice to the other side, the order must fall under Rule 1 and Rule
2 of Order 39 of the CPC and no order granting or declining to
grant an injunction can be passed under Rule 3 of Order 39
independently of Rule 1 or 2. It was contended that the intention
of clause (r) of Rule 1 of Order 43 is that whenever a court passes
an order granting or declining to grant an injunction, a right of
appeal is provided to the aggrieved party. This contention was
rejected by the Punjab and Haryana High Court which held that
an order declining to grant an ex parte temporary injunction is an
order under Rule 3 of Order 39 and as such not appealable.
(D) Syed Zafar Ali-vs.-Saeed Ahmed @ Dhungi reported in AIR
2006 All 300. In this case, the Allahabad High Court held that the
provision of the CPC that enables the Court to grant an ex parte
injunction, thus, disposing of the injunction application in the absence of the defendant is Rule 1 or 2 of Order 39. However, in
case the injunction application is not disposed of and only notices
are issued, such an order cannot be treated to be passed under
Order 39 Rules 1 or 2 of the CPC and hence, not appealable.
(E) Bidulata Das-vs.-Braja Behari Palit reported in AIR 1993 Ori 86.
In this case the Orissa High Court held that an order under Order
39 Rule 1 or 2 of the CPC may be either by grant of temporary
injunction or refusal to grant such injunction. Where order is
passed ad interim for further consideration, it has the same effect
as an order of injunction till it remains in force. Thus, right of the
party restrained is affected. In that view of the matter, an appeal
lies against such an order. Where, however, the court adjourns
such an application to a future date after notice to the opposite
party, no right of any party is affected. The application remains
pending for future consideration. Such an order cannot be
treated as an order refusing to grant injunction and such an order
is not appealable.
(F) Ram Dhani-vs.-Raja Ram reported in AIR 2011 All 121. In this
case the Allahabad High Court held that Order 39 Rule 3 of the
CPC confers a duty on the court before granting an injunction to issue notice to the defendant. It is a procedural provision, a step
in the case. If the court arrives at a conclusion that the grant of ex
parte injunction would be defeated by delay, it can proceed to
grant an injunction under Order 39 Rule 1 or Rule 2. If the
injunction is granted or rejected, it would be appealable under
Order 43. The procedure followed under Order 39 Rule 3 is
determined by the Court on the urgency of the matter viz-a-viz
the relief claimed by the plaintiff. On a failure to grant ex parte
injunction, no part of the case or the proceeding is disposed of,
but the proceedings merely stand adjourned to the next date.
Hence, it cannot be said that issuance of notice on arriving at a
finding that there was no grave urgency, does not amount to an
‘order’ within the meaning of Section 2 (14) of the CPC and the
same is not appealable.
(7) Relying on the aforesaid decisions, Ld. Appellate Court held
that the order in question is not an appealable order.
(8) Appearing on behalf of the revisional petitioner Mr. Protik
Prakash Banerji, Ld. Counsel referred to Section 94 of the Code of
Civil Procedure which provides that in order to prevent the ends of
justice from being defeated the Court may, if it is so prescribed, inter alia, grant a temporary injunction and make such other
interlocutory orders as may appear to the court to be just and
convenient. He then referred to Order 39 Rules 1 to 4 of the CPC
and submitted that refusal to pass an ad interim ex parte order of
injunction is also an order under Rules 1 and 2 of Order 39 and not
an order under Rule 3 of Order 39 CPC. He contended that
power to refuse an order of injunction is inherent in the power to
grant injunction. If an order granting injunction is appealable so is
an order refusing injunction. For refusing ex parte ad interim
injunction it is not obligatory that Rule 3 of Order 39 must be
complied with. Hence, it cannot be said that an order refusing ex
parte ad interim injunction is an order under Rule 3 of Order 39 of
the CPC.
(9) Mr. Banerji relied on a decision of this court in the case of
Fiona Ray-vs.-Sipra Roy 2008 (2) CHN 402. In that case it was held
as follows:-
(i) Order 39 Rules 1 and 2 are the only enabling provisions which
authorise the court to pass interim injunction, be it ad interim or
temporary. (ii) Order 39 Rule 3 of the CPC is not an enabling provision which
authorises the court to grant injunction at the ad interim stage.
The said provision simply deals with the procedure as to how and
under what circumstances ad interim order of injunction can be
passed without service of notice.
(iii) Rule 3 of Order 39 does not deal with the circumstances
under which temporary and/or ad interim injunction can be
granted by the court unlike Rules 1 and 2 of Order 39 which
specify the purposes for which temporary injunction can be
granted. Order 39 Rule 3 simply deals with the procedural part
which is required to be followed by a Court in dealing with an
application for temporary injunction.
(iv) In short, when service of notice is mandatory before grant of
injunction, when service of notice can be dispensed with before
grant of injunction and in case of passing ad interim order of
injunction by dispensing with the requirement of service of notice
upon the opposite party, the steps which are required to be taken
by the court as well as by the party applying for injunction have
been specified in Order 39 Rule 3 of the Code of Civil Procedure. (v) Grant of ad interim injunction and/or refusal to grant ad
interim injunction comes under the provision of Order 39 Rules 1
and 2 which are the only enabling provisions which authorise the
court to pass and/or not to pass temporary and/or ad interim
injunction depending upon the facts of a particular case.
(vi) When the Ld. Trial Judge refused to pass an ad interim
injunction and directed the plaintiff to serve notice upon the
defendant, the refusal to grant ad interim injunction being
essentially an order under Order 39 Rules 1 and 2 of the Code of
Civil Procedure, is undoubtedly an order appealable under Order
43 Rule 1 (r) of the CPC.
(10) Mr. Banerji further submitted that finding of the appellate
court that it could not dispose of the application which is pending
before the Ld. Trial Court nor can grant an interim order as a court
of first instance, is erroneous. The appellate court held that such
an order granting injunction, even if limited till disposal of the
application by the Ld. Trial Court, would be illegal exercise of its
powers by the appellate court and the appellate court had no
jurisdiction to make such an order. Mr. Banerji submitted that such
conclusion of the appellate court is fallacious. Section 107 (2) of the CPC provides that the appellate court shall have the same
powers and shall perform as nearly as may be the same duties as
are conferred and imposed by the Code of Civil Procedure on
courts of original jurisdiction in respect of suits instituted therein.
(11) Mr. Banerji submitted that both the findings of the appellate
court that the order under challenge is not an appealable order
and that the appellate court lacked jurisdiction to pass an order
of injunction are grossly erroneous in law and has caused
substantial miscarriage of justice to the petitioners. The appellate
court had acted with material irregularity in passing the judgment
and order challenged in this revisional application and the same
should be set aside.
(12) Appearing on behalf of the opposite parties, Mr. Anindya
Kumar Mitra, Ld. Senior Counsel submitted that the source of
power to pass an order of injunction is Section 94 of the CPC.
Orders and Rules which formed the first schedule to the body of
the CPC are all procedural. They prescribed the circumstances in
which such power is to be exercised. He submitted that Order 39
Rules 1 and 2 prescribed the circumstances in which temporary
injunction can be granted. Order 39 Rule 3 prescribes the circumstances when ex parte ad interim injunction can be
granted. He submitted that it is incorrect to say that the source of
power to pass an order of injunction is Order 39 Rules 1 and 2. He
submitted that an order whereby an ex parte ad interim injunction
is refused and notice is directed to be served on the defendants, is
not an order under Order 39 Rules 1 and 2 but an order under
Order 39 Rule 3. In this connection, Mr. Mitra relied on the
decisions noted by the appellate court in the judgment impugned
herein, which have been discussed above.
(13) Mr. Mitra also relied on a decision of the Hon’ble Supreme
Court in the case of Vareed Jacob-vs.-Sosamma Geevarghese
reported in AIR 2004 SC 3992. In that case the Hon’ble Supreme
Court observed that the power of the court to grant interim relief
stems from Section 94 of the CPC. However, such power can be
exercised only if the circumstances of the case fall under the
Rules. When a matter comes before the court, the court has to
examine the facts of each case and ascertain whether the
ingredients of Section 94 read with the rules in an Order are
satisfied and, accordingly, grant an appropriate relief. (14) Mr. Mitra then relied on a decision of a Division Bench of this
court in the case of ABL International Pvt. Ltd.-vs.-Sunita
Ramchand Sadarangani reported in 2009 (1) CHN 56. Reliance
was placed on paragraph 33 of the judgment which is set out
hereunder:-
“33. Part IV of the Code of Civil Procedure deals with
Supplemental proceedings and Section 94 contained in that part
of the Code is the substantive provision of the Code which gives
power to a court to grant interim relief principally in order to
prevent the ends of justice from being defeated. While subsections
(a) and (b) thereof deal with the situations where the
relief should be granted only to the plaintiff, the power conferred
under the other three sub- sections viz. (c), (d) and (e) can be
exercised at the instance of both the plaintiff and the defendant.
Correspondingly, Order 38 to Order 40, mentioned in the First
Schedule of the Code, are the procedural parts of section 94.
Although the provisions contained in Order 38 are intended to
benefit the plaintiff alone, Order 39 Rule 1(a) can be availed of by
both the plaintiff and the defendant. Similarly the power
conferred under Order 40 can be invoked at the instance of both the plaintiff and the defendant. The law is equally settled that
even in a case where a particular situation does not come within
the purview of Order 39 of the Code, the court, in exercise of its
inherent power, can pass such other form of injunction as may be
necessary do complete justice between the parties and such
power can be invoked also at the instance of the defendant of a
suit.”
(15) Mr. Mitra then submitted that the ex parte ad interim order of
injunction dated 29th April, 2011 passed by the appellate court at
the time of admitting the appeal, directing the respondents in the
appeal to maintain status quo in respect of the suit property, was
an unreasoned order and as such not sustainable.
(16) Mr. Mitra submitted that the Ld. Appellate Court rightly held
that the appeal is not maintainable and no interference with the
judgment and order under challenge is warranted. He prayed for
dismissal of the instant application.
(17) In reply, Mr. Banerji, Ld. Counsel referred to the decision of
the Hon’ble Apex Court in the case of A. Venkatasubbiah Naidu
(supra) and in particular paragraph 10 of the judgment wherein
the Hon’ble Supreme Court has observed that Order 39 Rule 1 of the CPC is the repository of the power to grant orders of
temporary injunction with or without notice, interim or temporary,
or till further orders or till the disposal of the suit. He submitted that
the Supreme Court in the case of Vareed Jacob (supra) did not
consider the issue in the case of A. Venkatasubbiah (supra). He
further submitted that the question involved in the case of Vareed
Jacob (supra) was whether or not an interlocutory order
automatically revives if a suit which was dismissed for default is
subsequently restored. Thus, the issue in that case was completely
different from the issue in the present case. He submitted that a
case is an authority for what it decides. In this connection he
relied on a decision of the House of Lords in the case of Quinn-vs.-
Leathem reported in (1901) AC 405. In this case Earl of Hulsbury
L.C. in his judgment observed that every judgment must be read
as applicable to the particular facts proved, or assumed to be
proved, since the generality of the expressions which may be
found there are not intended to be expositions of the whole law,
but governed and qualified by the particular facts of the case in
which such expressions are to be found. A case is only an
authority for what it actually decides. It cannot be quoted for a proposition that may seem to follow logically from it. Such mode
of reasoning assumes that the law is necessarily a logical code,
whereas every lawyer must acknowledge that the law is not
always logical at all.
(18) Mr. Banerji also relied on a decision in the case of Balwat Rai
Saluja-vs.-Air India Ltd. reported in AIR 2015 SC 375 wherein it was
observed that the binding nature of a decision would extend to
only observations on points raised and decided by the court and
neither on aspects which it has not decided nor had occasion to
express its opinion upon. The observations made in a prior
decision on a legal question which arose in a manner not
requiring any decision and which was to an extent unnecessary,
ought to be considered merely as an obitum dictum. It is the ratio
of a judgment which must be considered as binding to be applied
as an appropriate precedent.
(19) The next judgment relied on by Mr. Banerji is in the case of
Commissioner of Income Tax-vs.-M/s. Sun Engineering Words (P)
Ltd. reported in (1992) 4 SCC 363 wherein at paragraph 37 of the
judgment the Hon’ble Supreme Court observed that it is neither
desirable nor permissible to pick out a word or a sentence from a judgment of the Apex Court, divorced from the context of the
question under consideration and treat the same to be the
complete ‘law’ declared by the Apex Court. The judgment must
be read as a whole and the observations from the judgment have
to be considered in the light of the questions which were before
the Supreme Court. A decision of the Supreme Court takes its
colour from the questions involved in the case in which it has
rendered and while applying the decision to a later case the
courts must carefully try to ascertain the true principle laid down
by the decision of the Apex Court and not to pick out words or
sentences from the judgment, divorced from the context of the
questions under consideration by the Apex Court, to support their
reasoning.
(20) Mr. Banerji then referred to a decision of the Hon’ble
Supreme Court in the case of Bhavnagar University-vs.-Palitana
Sugar Mills (P) Ltd reported in (2003) 2 SCC 111 wherein at
paragraph 59 of the judgment it was observed that a decision is
an authority for what it decides and not what can logically be
deduced therefrom. It is well settled that a little difference in facts or additional facts may make a lot of difference in the
precedential value of a decision.
(21) Mr. Banerji then submitted that the power to pass an ex
parte ad interim order is inherent in the power to pass an interim
order. In this connection he relied on a decision of the Hon’ble
Supreme Court in the case of The Industrial Credit and Investment
Corporation of India Ltd.-vs.-Grapco Industries Ltd. reported in
(1999) 4 SCC 710 wherein at paragraph 13 of the judgment it was
observed that when power is given to the Tribunal to make an
interim order by way injunction or stay, it inheres in it the power to
grant that order even ex parte, if it is so in the interest of justice
and as per the requirements as spelt out in the judgment of the
Apex Court in the case of Morgan Stanley Mutual Fund-vs.-Kartick
Das reported in (1994) 4 SCC 225.
(22) Finally Mr. Banerji submitted that none of the decisions of the
Hon’ble Supreme Court cited at the bar clearly pronounce on the
appealability or otherwise of an order refusing to grant ex parte
ad interim injunction and directing issuance of notice. The
judgments of the other High Courts are not binding on this Court.
He submitted that this Court should follow the decision of the Ld. Judge of this Court in the court of Fiona Ray (supra). He submitted
that judicial decorum and principles of stare decisis, precedent
and judicial comity warrant that this court should follow the
decision in the case of Fiona Ray (supra).
(23) Before going into the question which is before this Court, it
may be interesting to trace the origin and genesis of the remedy
of injunction.
(24) In England, under the old Chancery practice an injunction
was a writ, issued by the order and under the seal of a court of
equity. It was of two kinds. One was the Writ Remediat. This was
issued for a variety of purposes including to stay proceedings in
courts of law, in the spiritual courts, the courts of admiralty or in
some other court of equity: to restrain the indorsement or
negotiation of notes and bills of exchange, sale of land, sailing of
ship, transfer of stock, alienation of a specific chattel etc.
(25) Under the old procedure followed prior to 1864, the Court of
Chancery was the only court which had jurisdiction to restrain the
doing of wrongful acts by injunction. The Common Law
Procedure Act 1864 (which was subsequently repealed by the
Statute Law Revision Act, 1883) empowered the common law courts to grant injunction in particular cases. It also authorised
those courts to grant injunctions in patent cases. But until the
passing of the Judicature Act of 1873, the remedy of injunction
continued to be, with the aforesaid exceptions, a remedy peculiar
to the Court of Chancery.
(26) By section 16 of the Judicature Act of 1873 the entire
jurisdiction of the Court of Chancery was transferred to and stood
vested in the High Court of Justice. Section 25 (8) of the
Judicature Act of 1873 provided that a mandamus or an
injunction may be granted or a receiver appointed by an
interlocutory order of the court in all cases in which it appeared to
the High Court to be just or convenient that such order should be
made and any such order may be made either unconditionally or
upon such terms and conditions as the court thinks just and if an
injunction is asked for either before, or during, or after the hearing
of any matter, to prevent any threatened or apprehended waste
or trespass such injunction may be granted if the court shall think
fit. Such power together with the jurisdiction formerly exercised by
the Court of Chancery in granting injunctions were, by the
Judicature Act, 1873 conferred upon all the divisions of the High Court. However, this did not create a new jurisdiction in the sense
it did not give the right to an injunction to parties who previously
had no legal right, but simply gave to the court when dealing with
legal rights which were under its jurisdiction power to grant relief
by way of injunction in fit and proper cases.
(27) In India, the first statutory provision for grant of injunction was
made by Sections 92, 93, 95 and 96 of the Civil Procedure Code,
1859. Section 92 laid down that in any suit in which it shall be
shown to the satisfaction of the court that any property which is in
dispute in the suit is in danger of being wasted, damaged or
alienated by any party to the suit, it shall be lawful for the court to
issue an injunction to such party commanding him to refrain from
doing the particular act complained of or to give such other
orders for the purpose of preventing him from wasting, damaging
or alienating the property as to the court may seem fit. Section 93
provided that in any suit for restraining the defendant from the
committal of any breach of contract or other injury, and whether
the same may be accompanied with any claim for damages or
not, it shall be lawful for the plaintiff at any time after the
commencement of the suit, and whether before or after judgment, to apply to the court for an injunction to restrain the
defendant from the repetition or continuance of the breach of
contract and wrongful act complained of or the committal of any
breach of contract or injury of a like kind arising out of the same
contract or relating to the same property or right; and such
injunction may be granted by the court on such terms as to the
duration of the injunction, keeping an account, giving security or
otherwise, as to such court shall seem reasonable and just, and in
case of disobedience, such injunction may be enforced by
imprisonment in the same manner as a decree for specific
performance; provided always, that any order for an injunction
may be discharged or varied or set aside by the court on
application made thereto by any power dissatisfied with such
order. Section 95 provided that before granting injunction, the
court may direct reasonable notice to be given to the opposite
party. By section 96 provision was made for compensating the
defendant for needless and unjustifiable issue of injunction.
(28) The Civil procedure Code of 1877, chapter XXXV made more
complete provisions for issue of temporary injunctions. The law
relating to grant of permanent injunction was contained in the Specific Relief Act of 1877 and in particular Sections 54 and 55 of
that Act (presently Sections 38 and 39 of the Act of 1963). Those
Sections were understood not to be introducing new principles of
law in India, but rather as an attempt to express in general terms
the rules acted upon by Courts of Equity in England and long since
introduced in the country, not because they were English, but
because they were in accordance with equity and conscience.
Presently the law relating to injunction in this country is contained,
in so far as temporary injunction is concerned, in the Code of Civil
Procedure, 1908, and in so far as permanent injunction is
concerned, in the Specific Relief Act, 1963. In the instant case we
are concerned with temporary injunction only.
(29) Section 94 of the CPC provides, inter alia, that in order to
prevent the ends of justice from being defeated the court may, if
it is so prescribed, inter alia, grant a temporary injunction and in
case of disobedience committ a person guilty thereof to the civil
prison and/or make such other interlocutory orders as may appear
to the court to be just and convenient. Section 94 inescapably
refers to Rules 1 and 2 of Order 39 of the CPC which have been
set out hereinabove. (30) It may not be proper to say that the court derives its
jurisdiction to pass an order of injunction from Section 94. It is too
well established that the Court has an inherent power to pass an
order of injunction where the facts and circumstances of a case
so warrant to do complete justice between the parties. Section
151 of the CPC recognises such inherent power. Section 94 of the
CPC expressly recognises the court’s power to issue an order of
injunction and Order 39 Rules 1 and 2 indicate the circumstances
in which the court may exercise its power to grant temporary
injunction. If circumstances which are not covered by Rules 1 and
2 of Order 39, warrant issuance of injunction, the court can still do
it in exercise of its inherent jurisdiction.
(31) In the case of Manoharlal-vs.-Seth Hiralal reported in AIR 1962
SC 527 it was held as per the majority view that it is well settled
that the provisions of the Code are not exhaustive, for the simple
reason that the legislature is incapable of contemplating all the
possible circumstances which may arise in future litigation and
consequently for providing the procedure for them. The effect of
the expression ‘if it is so prescribed’ in Section 94 of the Code is
only this that when the Rules in Order 39 prescribe the circumstances in which temporary injunction can be issued,
ordinarily the court is not to use its inherent power to make the
necessary orders in the interest of justice, but is merely to see
whether the circumstances of the case bring it within the
prescribed rule. If the provisions of Section 94 were not there in
the Code, the Court could still issue temporary injunctions, but it
could do that in the exercise of its inherent jurisdiction. It is in the
incidence of the exercise of the power of court to issue temporary
injunction that the provisions of Section 94 of the Code have their
effect and in not taking away the right of the court to exercise its
inherent power. The court has inherent jurisdiction to issue
temporary injunctions which are not covered by the provisions of
Order 39 of the Code if the court is of the opinion that the interest
of justice requires the issuance of such interim injunction.
(32) On a meaningful reading of the Code of Civil Procedure,
1908 and upon careful consideration of the precedents discussed
above I am of the view that the body of the Code comprising the
Sections confer substantive powers on the Court whereas the
Orders and Rules contained in the first schedule to the Code
prescribe the manner in which such powers are to be exercised. In certain cases, the Orders and Rules also indicate the
circumstances in which the powers under the Sections should be
exercised. To this extent, the Sections of the Code are substantive
in nature and the Orders and Rules in the First Schedule thereto
are procedural in nature.
(33) Section 94 (c) of the Code empowers the Court to grant a
temporary injunction. This, according to me, is the parental
source of the Court’s power to grant an order of injunction under
the Code. Order 39 Rules 1 and 2 indicate the circumstances in
which the court may exercise its power under Section 94 of the
Code. These circumstances are by no means exhaustive in the
sense that the Court’s power to issue a temporary injunction is not
limited to the circumstances prescribed by Rules 1 and 2 of Order
39. In any other facts and circumstances not covered by Rules 1
and 2 of Order 39, if justice do demands, the court can issue a
temporary injunction in the exercise of its inherent power. Such
power has always inhered in a court of law to be exercised for
doing complete justice between the parties. Justice is above all
and cannot be thwarted or defeated by technicalities. Section
151 of the Code recognises such inherent power of the Court. Such inherent power of the Court must be recognized as it is
impossible to visualize all the circumstances that may arise in
future while enacting a law or framing procedural rules. The
inherent power is generally exercised to fill up a lacuna in the law
and mainly on equitable considerations when the circumstances
of a case so warrant.
(34) While hearing an application under Order 39 Rules 1 and 2 of
the Code, the court exercises its power essentially under Section
94 of the Code. Section 94 is the repository of the court’s power to
grant temporary injunction under the Code. With the power to
grant injunction, comes power to grant an ex parte injunction.
Such power is exercised by the court when it feels that there is
such urgency in the matter that the plaintiff will suffer irreparable
prejudice or substantial hardship if the court waits to pass an order
until after notice is served on the defendant or when the court
feels that giving of notice to the defendant before granting
temporary injunction might prompt the defendant to commit the
very mischief that the plaintiff is apprehending thereby rendering
the plaintiff’s application infructuous. No strait jacket formula can
be laid down as to when the court should grant an ex parte injunction. To put it briefly, an ex parte injunction will be issued
only if it appears to the court that the object of granting the
injunction would be defeated by the delay entailed in serving
notice on the defendant.
(35) However, when the court issues an ex parte injunction, it is
required to follow the procedure mentioned in Rule 3 of Order 39.
In my view, the provisions of Rule 3 of Order 39 are merely
procedural. The court’s power to grant ex parte injunction does
not stem from Rule 3 of Order 39. When a court passes or refuses
to pass an ex parte order of injunction on an application under
Order 39 Rules 1 and 2, the court exercises its power under Section
94 of the Code read with Order 39 Rules 1 and 2. The power of
the court to pass an order of injunction, be it ex parte or upon
hearing both the parties, is discretionary and in passing such an
order or in declining to pass such an order the court exercises such
discretion under Section 94 of the Code read with Order 39 Rules 1
and 2 thereof. Just as an ex parte order of temporary injunction
may affect the defendant, refusal to pass an ex parte order of
temporary injunction may also adversely affect the plaintiff. In both cases rights of the parties are decided one way or the other
albeit for a limited period of time.
(36) In this connection it may be noted that the Hon’ble Supreme
Court in the case of A. Venkatasubbiah Naidu (supra) at
paragraph 10 of the judgment observed that Order 39 Rule 1 of
the CPC is the repository of the power to grant orders of
temporary injunction with or without notice, interim or temporary,
till further orders or till the disposal of the suit.
(37) I am in respectful agreement with the decision of this Court in
the case of Fiona Ray (supra) that Order 39 Rule 3 is merely
procedural and unlike Rules 1 and 2 of Order 39, the same does
not deal with the circumstances under which temporary or ad
interim injunction may be granted.
(38) In the light of the aforesaid I am of the firm opinion that when
an order is passed by a court on an application under Order 39
Rules 1 and 2 of the CPC refusing to issue ex parte ad interim
injunction and directing service of notice on the defendant, the
same is an order passed under Section 94 read with Order 39 Rules
1 and 2 and not under Order 39 Rule 3 thereof. It is also significant
that whereas Order 39 Rule 3 requires the court to record reasons justifying issuance of an ex parte injunction, no such requirement
for recording reasons is prescribed where the court declines to
pass an ex parte order of injunction and simply directs service of
notice on the defendant.
(39) I am inclined to accept and in agreement with the
submissions made by Mr. Banerjee, Ld. Counsel for the petitioners,
which I have noted above and which I do not repeat here to
avoid undue prolixity.
(40) With respect, I am unable to agree with the views of the
other High Courts discussed above which have held that an order
refusing to pass an ex parte order of injunction and merely
directing service of notice on the defendant is one under Order 39
Rule 3 of the CPC.
(41) Since I have come to the conclusion that an order refusing
grant of ex parte injunction and directing issuance of notice to the
defendant is also an order passed in exercise of power under
Section 94 read with Section 39 Rules 1 and 2 of the CPC, it follows
that such an order is an appealable order as provided in Order 43
Rule 1 (r) of the Code. I am of the opinion that a remedial
provision in a statute, whether by way of an original proceeding or by way of an appeal should be construed in a liberal and
expansive manner rather than in a restrictive way.
(42) In view of the aforesaid, I am unable to sustain the judgment
and order whereby the appellate court dismissed the petitioner’s
appeal on the ground that the order of the Ld. Trial Judge was not
an appealable order. According to the view, I have taken the Ld.
Trial Court’s order was an order under Order 39 Rules 1 and 2 of
the CPC and hence appealable as provided in Order 43 Rule 1 (r)
of the Code. The further view of the appellate court that it did not
have the power to pass ad interim injunction is also erroneous in
law. Section 107 (2) of the CPC provides that the appellate court
shall have the same powers as are conferred by CPC on courts of
original jurisdiction.
(43) I am of the view that there is a glaring error of law on the
face of the judgment and order impugned which if not corrected
will cause substantial miscarriage of justice to the petitioners.
Accordingly the judgment and order impugned in this revisional
application is set aside. The matter is remanded back to the
appellate court for deciding the appeal of the petitioners from
the Ld. Trial Court’s order on merits as expeditiously as possible and in any event within a period of two months from the date of
communication of this order. I have not gone into the merits of
the case and the Appellate Court will be free to decide the
appeal on merits in accordance with law.
(44) CO 2191 of 2013 is accordingly disposed of.
 (Arijit Banerjee, J.)
Later: After judgment was delivered, the Learned Counsel for the
petitioner prays for stay of operation of the judgment and order.
The prayer is considered and refused.
 (Arijit Banerjee, J.)
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