Rathindra Nath Bose v. Jyoti Bikash Ghosh And Others Opposite Parties.

1. This Rule has been obtained against the order passed on appeal by the Additional District Judge, 1st Court, Alipore, dissolving the injunction granted by the trial court. The facts in short are as follows:

2. Opposite parties Nos. 1 and 2, the landlords who purchased the suit premises in 1966, instituted Title Suit No. 137 of 1968 against opposite parties Nos. 7 and 8 for recovery of possession of premises No. 7-A, Nafar Kundu Road, Calcutta, P.S Bhowanipore, which, it was alleged, the said opposite parties held as monthly tenants. The ground for eviction was the plaintiffs' reasonable requirement of the suit premises for own use and occupation. The suit was decreed on February 14, 1969. The cousins of the defendants filed Title Suit No. 73 of 1969 on February 26, 1969 for a declaration that they and the opposite parties Nos. 7 and 8 were joint tenants of the suit premises and also for permanent injunction restraining the landlords from proceeding with execution of the decree for possession. They also filed a petition for ad interim injunction, which was dismissed and was affirmed on appeal. The order was challenged by the said plaintiffs of T.S No. 73 of 1969 in revision in C.R 3152 of 1969. This Rule was discharged by this Court on January 21, 1970 with direction that the suit should be heard within three months and the execution of the decree was allowed after May 7, 1970. On July 20, 1971 Title Suit No. 73 of 1969 was dismissed for default. On August 17, 1971 an application for restoration of the suit under Order 9, Rule 9 of the CPC was filed registered as Misc. Case No. 78 of 1971. The plaintiffs thereafter filed an application under Section 151 in the said proceeding for injunction restraining the decree-holder landlords from executing the decree and this application was dismissed on August 28, 1972. Thereafter, on August 30, 1972 the plaintiffs filed a petition under Section 94 (c) and (e) read with Section 151 of the Code before the trial court for an injunction restraining the landlords from executing the decree and an ad interim injunction was granted thereon. The application, treated as an application under Section 94 (c) and (e) of the Code was thereafter allowed on contest by order dated February 7, 1973 and the landlords were restrained by an injunction from proceeding with their Title Execution Case No. 59 of 1972 in execution of the decree obtained by them as aforesaid till the disposal of the application under Order 9, Rule 9 registered as Misc. Case No. 78 of 1971. The landlords preferred an appeal against the said decision and the appellate court held that the learned Munsif is to be deemed to have exercised jurisdiction under Order 39 while passing the order under Section 94 (c) of the Code and the appeal before him as such was maintainable under provisions of Order 43, Rule 1, Clause (r). On merits it was held that the plaintiffs failed to make put a prima facie case and mere joint possession, if true, would not show that there was joint tenancy of the premises. The Court further held that the balance of convenience would be against the landlords if the injunction was sustained as they instituted the suit for recovery of possession for their own use and occupation in 1967, while the plaintiffs were not actually residing at the suit premises. The appeal was accordingly allowed and the injunction granted by the trial court was vacated. The petitioner, who is one of the plaintiffs, in Title Suit No. 73 of 1969, moved this Court against this appellate order and obtained the present Rule.

3. Mr. Saraf, learned Advocate appearing for the petitioner submitted that the appeal against the order of the learned Munsif, was not maintainable in law. The order passed was clearly under Section 94 (c) and (e) and not under Order 39, Rule 1 or 2 as Order 39 applies only to proceedings in suit. No appeal lies against an order under Section 94 (c) or (e) and the landlords' only remedy was to move in revision against the order of the learned Munsif. On merits also, it was submitted that as the plaintiffs with their families were residing for over a long time in the suit premises, if the injunction is vacated, it would cause great hardship to them as they would thereby be strained.

4. Mr. Joyanta Mitra, learned Advocate for the opposite party No. 5, a co-plaintiff, while supporting the petitioner, submitted that Order 39, Rules 1 and 2 in terms had no application to the proceeding in the facts of the case, even if it was considered applicable. He further submitted that injunction is available apart from Order 39 under Section 94 (c) and (e).

5. Mr. R.C Deb, appearing for opposite party No. 6 another co-plaintiff, submitted that Order 39 applies only to proceedings in suit which are pending and proceeding under Order 9, Rule 9 is not a proceeding in suit. The appellate order was thus clearly without jurisdiction and there was no scope or authority in law for deeming it to be an order under Order 39.

6. Mr. S.C Mitter, learned Advocate appearing for the landlords opposite parties Nos. 1 and 2 contended on the other hand that Section 94 cannot be exercised independently of the Rules which are contained in Order 39. Section 94 creates jurisdiction while Order 39 is the procedure through which such power can be exercised. It was further submitted that Section 94 and Order 39 are complementary. Accordingly, the order of the learned Munsif being under Section 94 read with Order 39 was subject to appeal under provisions of Order 43. It was further submitted that proceeding under Order 9, Rule 9 is in the nature of an original proceeding and provisions of Section 141 of the Code would apply thereto. Accordingly, Order 39 which provides the procedure for issue of injunction would be applicable in proceeding under Order 9, Rule 9. It was further submitted that on merits even, the petitioner had no case, as the premises remained at times vacant and most of the members of the plaintiffs' family had been living elsewhere, while the landlords were being put to great inconvenience and hardship by the mala fide proceedings for all these years. It was further submitted on authorities that even in revision, even if the appeal is not maintainable the Court is competent to pass the order like the order of the appellate Court to secure justice in the facts of the case.

7. Section 94 provides:

“94. Supplemental proceeding.- In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,—

(c) grant a temporary injunction …………

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.”

8. Words “if it is so prescribed” are of great significance as they govern all the various clauses (a) to (e) of Section 94. Section 2 which provides for definition in clause (16) defines “prescribed” as “prescribed by the rules.” The rules are contained in the First Schedule to the Code as stated in Section 121. As to such rules it was said in Mani Mohan v. Ramtaran Mandal, AIR 1917 Cal 657 as follows:

“………that the Code consists (i) of that which is termed ‘the body of the Code and (ii) of the rules. The body of the Code is fundamental and is unalterable except by the Legislature; the rules are concerned with the details and machinery and can be more readily altered. Thus it will be found that the body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised.”

9. In Mulla's Code of Civil Procedure, it is stated that the Section 94 summarises the general powers of the Court in regard to interlocutory proceedings, while the details of procedure have been relegated to Schedule I.

10. In Monohar Lal Chopra v. Hiralal, AIR 1962 SC 527, the Court approving the view taken in Chinese Tannery Owners' Association v. Makhan Lal, AIR 1952 Cal 560 observed in paragraph 18 as follows:

“………The Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39 of the CPC. There is no such expression in Section 94 which expressly prohibits the issue of temporary injunction in the circumstances not covered by Order 39 or by any rules made under the Code………The effect of the expression ‘if it is so prescribed’ is only this that when the rules prescribe the circumstances in which temporary injunction can be issued, ordinarily the Court is not to use its inherent powers 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………”

11. The Supreme Court thus laid the following propositions:

(i) There is nothing in Section 94 which expressly prohibits issue of temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code.

(ii) Court has inherent power to issue injunction in circumstances not covered by Order 39 or any rules under the Code.

(iii) “If it is so prescribed” in Section 94, means the circumstances prescribed in rules under the Code, and the rules include O. 39, so that an injunction under Section 94 is circumscribed to circumstances contemplated under the Rules.

12. In the light of the above proposition it is now to be seen if the circumstances as contemplated in Rules 1 and 2 of O. 39 did exist warranting issue of injunction under provisions of Section 94 (c). It is obvious that no circumstance as contemplated in the said Rules did exist as to warrant issue of injunction under the said order in the case before us, so that it cannot be said that the injunction under Section 94 which is circumscribed to circumstances of Order 39, or any other order or rules, was or could be validly issued as was purported to be done by the trial court. Even so the trial court was not wholly without jurisdiction as it could issue injunction under Section 151 in the circumstances not covered by Order 39 or other Rules and the order of the trial court is to be taken accordingly as one under Section 151.

13. Now an order under Section 151 simpliciter is not appealable as was held in Keshardeo v. Radha Kissen, AIR 1953 SC 23. It was observed that under the Code of Civil Procedure certain specific orders mentioned in Section 104 and Order 43, Rule 1 only are appealable and no appeal lies from any other order (vide Section 105). The order made under Section 151 is not included in the category of appealable orders. In the case before us it appears to me that the order of the trial court is to be taken as an order under Section 151 and not under any other provisions of the Code, even if it was stated to be under Section 94, which was obviously an error. This error did not render the order a nullity as the trial court had the power and jurisdiction to pass such order under provisions of Section 151 of the Code.

14. Mr. Mitter, however, submitted that even if the order was not under S. 94, the trial Court usurped the jurisdiction under Section 94 in passing the order and as such an appeal would lie if the order had been passed with jurisdiction, and an appeal cannot be defeated, on the ground that the order was made without jurisdiction. Reliance was placed on the decision in Moharaj Kumar Bindeswari Charan Singh… v. Thakur Lakpat Nath Singh…., (1911) 15 Cal WN 725, followed in Ramjit Missir v. Ramador Singh, (1913) 17 Cal WN 116. In the above decisions the orders were without jurisdiction though such jurisdiction was usurped by the courts. In the case before us the order of the trial court was however not without jurisdiction as being a valid order in so far as jurisdiction is concerned, being one under Section 151 and accordingly the proposition of law laid down in the above case would have no application. In this view, I am unable to hold that the order of the trial court was one under Section 94 read with Order 39. Even if it was so the order was under Section 94 though it could be issued in the circumstances contemplated under Order 39. Even then, such order would be and continue to be an order under Section 94.

15. In this connection reference may be made to the decision in Sito Mahton v. F.F Christian, (1913) 17 Cal WN 318, in which it was held that the order on the defendant to furnish security for working a mine was an order under Section 94 (c) and not Order 39, Rule 1 of the Code and as such it was not appealable. In that view of the matter also, even if the order is considered to be an order under Section 94, apart from Order 39, no appeal is provided against an order passed under that section.

16. It was contended that the proceedings under Order 9, Rule 9 was in the nature of an original proceeding as was held in the case of Salil Kumar v. S.N Ghose, 63 Cal WN 883 : (AIR 1960 Cal 203) and the procedure of the Code is applicable to it as provided in Section 141, so that the order of the trial court would be one under Order 39 though in a proceeding and not in suit and thus appealable. It would however appear that “proceedings in any court of civil jurisdiction has been held to be original matters like probates guardianships and so forth as observed in Thakur Pershad Fakirullah, (1895) 22 Ind App 44 (PC) or divorce, insolvency. This provision includes original matters which originate in themselves and not those which spring up from a suit or from other proceeding or arise in connection therewith. This was the view taken in the Bench decision of this Court in Sarat Krishna Bose v. Bisweswar Mitra, AIR 1927 Cal 534. The contention of Mr. Mitra is thus not tenable.

17. Mr. Mitter further contended that even if the appeal is not maintainable, the revision case and thus the whole matter is before the Court, which should pass appropriate orders in the circumstances in modification of the Trial Court's order if necessary. Reference was also made to the decision in Jatindra v. Krishnadhan, 56 CWN 858 : (AIR 1953 Cal 34). In this decision the Court was of the opinion that the question of the value of the subject-matter of the suit was specifically raised in the Courts below and in order to determine the Rule itself, it was necessary to investigate this question. In this context it was said that the Court is perfectly competent to see that proper orders are made when the matters come in revision before this Court. In the case of Kantilal v. Azizul, (1957) 61 CWN 308 the Court was considering the legal effect of the decision of an incompetent Tribunal, which, it was held, can have no legal validity as contended. Reference was also made to the decision in Ratiram v. Niader Mal, AIR 1941 All 215 in which it was held that once the High Court is seized of the revision, then it becomes its duty to cast its eye not merely on one part of the proceeding, but the whole of them.

18. I am afraid I am unable to accept the decisions warranting the proposition that High Court in revision can upset an order which has not been challenged before it in accordance with law. In all the cases cited as above the order impugned was validly brought under challenge before this Court in revision, when it passed appropriate orders on the subject-matter at issue. In revisional jurisdiction the High Court can pass appropriate order in the circumstances of a case, but before it can be so done, the impugned order of the Court below must be legally and validly brought up before this Court in such revision case. Unless it is so, this Court cannot pass orders in any proceeding when the impugned order is not brought before it in accordance with law.

19. In the case before us the impugned order, the appeal therefrom being incompetent, was in effect without legal challenge and the revisional powers of the Court does not extend to correct the order passed when the party disputing the propriety of the order has not legally moved against it, the matter coming to the Court at the instance of the other party on the other ground about maintainability of the appeal from the impugned order which appeal is found to be incompetent.

20. In this view of the matter, I do not propose to enter into the merits of the case, as such probe will not be permissible in law.

21. The Rule accordingly must be and is made absolute and the appellate order dated September 13, 1973 passed in Misc. Appeal No. 140 of 1973 by the Additional District Judge, 1st Court, Alipore is set aside, as being without jurisdiction. I further direct that the records be sent down at once to the Court of the learned Munsif, 2nd Court, Alipore, for hearing and disposal of Misc. Case No. 78 of 1971 and after disposal of the said Misc. Case records may be sent up to this Court, as it is said there are other Rules pending in connection with the connected proceedings. I express my desire that within two months from the receipt of the records, the proceeding under Order 9, Rule 9 should be heard and disposed of during which period the records will lie there, to be sent upon the expiry of the said period.

22. There will be no order as to costs in this rule.

23. Rule made absolute.