Abdul Hamid Khan And Others v. Tridip Kumar Chanda And Another Opposite Party.

1. This petition of revision is directed against an order of the learned Subordinate Judge, Dibrugarh, dated 18-6-1951 by which the order of the Munsiff vacating a previous order by which an ad interim temporary injunction had been issued against defendants 1-3 was reversed. The learned Subordinate Judge by his order granted a temporary injunction against the defendants restraining them from executing an ejectment decree which had been passed in their favour against the opposite parties, the minor plaintiffs and several other persons who were members of the family of the minor plaintiffs.

2. The suit out of which this petition of revision arises was instituted by the two minors alone. They were defendants along with several other members of their family in the ejectment suit which had been decreed ex parte in favour of defendants 1-3, who were plaintiffs in that case. The decree was against, the minor plaintiffs to this case as also against several other members of their family. The case put forward by the plaintiffs is that there was no service on them, their guardian was not properly appointed, their interests were not looked after, and the decree against them had been obtained by fraud. On these grounds they have prayed for a permanent injunction restraining the defendants from executing the decree and have also asked for a temporary injunction to the same effect. The trial Court issued an ad interim injunction but revoked it on an objection from the defendants. The learned Senior Subordinate Judge reversed the order of the Munsiff and granted a temporary injunction to the plaintiff opposite parties. Defendant-petitioners have assailed the validity of the order of the learned Senior Subordinate Judge. The main contention raised is that he had no jurisdiction to grant any temporary injunction to the opposite parties (plaintiffs) inasmuch as their case was not covered by the provisions contained in O. 39, Rr. 1 and 2 of the CPC, which are exhaustive in the matter of the grant of temporary injunctions which may be issued under the Code of Civil Procedure by Subordinate Courts. This contention, in my opinion, is sound. Section 94 of the CPC, provides that “In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, grant a temporary injunction.” The word ‘prescribed’ has been defined in S. 2, cl. (16). This word (‘proscribed’) according to the definition, given in the Code means prescribed by rules. Thus, according to Section 94 of the CPC, the granting of a temporary injunction is permissible to the Court if it is so prescribed by the rules. When the rules make a provision, the Court may issue a temporary injunction in order to prevent the ends of justice from being defeated. The provisions relating to temporary injunctions are contained in O. 39, Rr. 1 and 2 of the CPC. The powers of the Courts, therefore, are circumscribed by Rr. 1 and 2 of O. 39. A temporary injunction may be issued only in cases which are covered by these rules. In other words, these rules are exhaustive of the cases in which temporary injunctions may be issued to prevent the ends of justice from being defeated.

3. The learned counsel for the petitioner has not seriously questioned this view. I notice, however, that there are certain cases in which a contrary view has been expressed and it has been held that the Court has an inherent power to act ex debito justitiae even in cases not covered by Rr. 1 and 2 of O. 39. The weight of authority as also of reason appears to mo to be in favour of the view that the provisions contained in the rules are exhaustive in that respect and, therefore, the Courts cannot enlarge their powers in matters for which specific provisions exist by a resort to their inherent jurisdiction. I am inclined to agree with the view of the law enunciated in Varada Charlu v. Narasimha Charlu, A.I.R 1926 Mad. 258; Ayyamperumal Nadar v. Muthuswami Pillai, A.I.R 1927 Mad. 687; Karuppayya Nadar v. Ponnuswami Nadar, A.I.R 1933 Mad. 500 (2) and Subramanian v. Seetarama Aiyar, A.I.R 1949 Mad. 104.

4. In Parbhu Dayal v. Laldas Mangulal, A.I.R 1939 ALL. 643, it was laid down that “lawful exercise of a right vested in a person cannot be legally restrained by the Court under O. 39, R. 2.” It was further held that S. 151 did not apply where the parties were acting within their own rights in prosecuting their respective suits. The learned Judges expressed the view that the only justification for the exercise of the equity jurisdiction by the Court was that the party to the suit was doing something which was against its notions of equity. Even according to this view S. 151 would not apply where a party was acting within his rights.

5. In Chotalal Hirachand v. Jethalal Varajbhai, A.I.R 1914 Bom. 148, an injunction was refused on the ground that Rr. 1 and 2 of O. 39 did not apply to the case. The view that the Court could draw on its inherent jurisdiction was not even put forward and, therefore, not considered in the case. A strict interpretation of the relevant provisions of the Code of Civil Procedure may create hardship in certain cases but the interpretation of those provisions is hardly a matter of any doubt or difficulty. Temporary injunctions may be issued only if prescribed by the rules. Therefore, the rules providing for the issue of temporary injunctions ought to be deemed to be exhaustive. This view is in consonance with the well recognised principle that the Courts cannot override express provisions of law in the exorcise of their inherent powers. Occasions for the exorcise of inherent jurisdiction arise only when no express provision of the law applicable to the case exists. My conclusion in the circumstances is that the subordinate Courts in the muffasil have no power to issue temporary injunctions in cases not covered by Rr. 1 and 2 of O. 39. I am not oblivious of the fact that the High Court has inherent power to grant temporary injunctions even in cases which are not covered by the two rules of O. 39. These powers however, may be exercised by the High Court when exercising its original jurisdiction. When the High Court is dealing with the matter as an appellate or revisional authority, it can only exercise the powers of the Court which has disposed of the matter. It can, therefore, grant injunction in such a case only if the case is covered by the provisions of O. 39. Its powers in cases coming to it on the appellate or revisional side thus are circumscribed by the limits imposed by O. 39. This view prevailed in Karuppayya Nadar v. Ponnuswami Nadar, A.I.R 1933 Mad. 500 (2) and Subramanian v. Seetharama Aiyar A.I.R 1949 Mad. 104 and I am in full agreement with it. The learned counsel for the respondent has not questioned the correctness of this view either.

6. The question then is whether the case i.e covered by any of the two rules of O. 39. The learned counsel for the opposite parties has sought to place the case under R. 3 alone. He concedes that it is not covered by R. 1. Under R. 2, it is open to the Court to issue a temporary injunction in any suit for restraining the defendant from committing a breach of the contract or other injury of any kind, whether compensation is claimed in the suit or not. An injunction under this rule may be claimed for preventing a breach of contract or other injury of any kind. The learned counsel contends that the ejectment decree is being challenged by the plaintiff-respondents who are minors. Their case is that the decree was obtained by fraud and has no effect against them. They have also prayed for a permanent injunction restraining the defendant petitioners from executing their decree. The execution of the decree in his view is covered by the expression ‘injury’ in R. 2 of O. 39. He also points out that the very object of the suit would be defeated if no temporary injunction is granted.

7. The decision of the question obviously turns on the interpretation of the word ‘injury’ occurring in R. 2 of O. 39. It is a question whether taking execution of a subsisting decree which is the subject-matter of a litigation or which is being challenged by the plaintiff in a case amounts to an injury of the kind contemplated by R. 2 of O. 39. An infringement of a copyright or of a trade mark or an obstruction to a right of property or threatened acts of waste would be admittedly injuries which may be prevented by the grant of a temporary injunction. But, it seems to me that a person may not be prevented from executing a decree obtained by him on the ground that it causes injury to the plaintiff. The execution of a decree is in the exercise of a legal right and it cannot be placed on a par with the breach of a contract or injury to property or the disturbance of other rights vesting in a particular individual.

8. The learned counsel for the opposite parties relied on some cases in support of his contention. These may now be examined. In the first case reported in Prativa Nath v. Benode Behari, A.I.R 1936 Cal. 181, the defendant was taking steps to put the land to sale in execution of his decree. The plaintiff brought a suit to restrain defendant 1 from putting the land to sale. The case was covered by R. 1 of O. 39 and not by R. 2. In Shanmugaval Goundan v. Venkitaswami Asari, A.I.R 1936 Mad. 202, plaintiff's suit was for a permanent injunction restraining the defendant from flooding the land. In this case no temporary injunction was asked for. If a temporary injunction had been claimed it this case, the case would have been covered by R. 2 as flooding the land would be an injury to the property. His 3rd case was Israil v. Samset Rahman, 41 Cal. 436. In this case plaintiffs, who were joint owners with defendants, had applied for an injunction to restrain the defendants from building on the land. This case is also clearly distinguishable. Injuries to property can certainly be prevented by temporary injunction under R. 2, but the question is whether the execution of a decree amounts to such an injury as is contemplated by R. 2. On this question this case has no bearing. The learned counsel has relied on 4 Calcutta, cases in support of the view that even the execution of a decree may be restrained under R. 2 of O. 39 or under S. 151 by a Subordinate Court and I proceed to consider these cases.

9. In Dhuronidhur Sen v. Agra Bank, 5 Cal. 86, the question whether a subordinate Court could issue a temporary injunction in the exercise of its inherent jurisdiction even when the case was not covered by O. 39, Rr. 1 and 2 was not considered and decided.

10. In Gunabala Chowdhurani v. Hem Nalini, A.I.R 1918 Cal. 495 (1), it was held that

“in a suit for a permanent injunction a temporary injunction ought not to be refused where the refusal would defeat the object of the suit and amount to a denial of justice.”

11. In this case also, the question whether a temporary injunction could be issued if the case was not covered by Rr. 1 and 2 or O. 39 was not raised or considered. These two Calcutta cases do not lay down that execution of a subsisting decree would amount to an injury within the meaning of O. 39, R. 2. In Jital Singh v. Kamalawari Prosad, 18 Cal. W.N 92, it was assumed that the case was covered by O. 39, R. 2. The case loses of its value as an authority as the question now before me was not raised before the learned Judges.

12. In In re Nandalal Mukerji, A.I.R 1932 Cal. 353, it was held that

“so far as the powers of the Calcutta High Court in the matter of issuing injunctions on parties in an appeal pending before it are concerned, they are not circumscribed by the provisions of O. 39 R. 1 and any order may be made by it which ends of justice or expediency may require.”

13. Power, which has been claimed for the Calcutta High Court in this case, cannot be said to be available to the Subordinate Courts in the Muffasil. The question before me is whether the trial Judge and the Subordinate Judge who heard the appeal were competent to issue a temporary injunction apart from the provisions contained in O. 39, R. 1. The authorities, relied on by the learned counsel for the opposite parties are not of any assistance. On the other hand, it has been consistently held in the Madras High Court that taking execution of a subsisting decree does not amount to an injury within the meaning of O. 39, R. 2: vide Varada Charlu v. Narasima Charlu, A.I.R 1926 Mad. 258; Ayyamperumal Nadar v. Muthuswami Fillai, A.I.R 1927 Mad. 687 and Subramanian v. Seetarama Aiyar, A.I.R 1949 Mad. 104. In Nasarvanji Cowasji v. Shahazadi Begam, A.I.R 1922 Bom. 385 (2), also it was held that a rightful execution of a decree cannot be prevented by a temporary injunction. I entirely agree with the view expressed in these cases.

14. I am unable, in these circumstances, to hold that the case is within the ambit of R. 2, O. 39. My conclusion is that the learned Subordinate Judge had no jurisdiction to grant temporary injunction in this case as the circumstances of the case do not permit its being placed under either R. 1 or R. 2, which are exhaustive in the matter of the grant of temporary injunctions. Any possible hardship that may be occasioned if the decree is allowed to be executed, cannot justify deviation from the express provisions contained in the Code. For the reasons given above, this petition is allowed. The order of the learned Subordinate Judge issuing the temporary injunction to restrain the defendants from executing their ejectment decree is reversed. I make no order as to costs.

B/G.M.J

15. Revision allowed.