1. This hearing arises out of an application under Section 115 of the C.P.C and is directed against the order dated 3rd October 1994 passed by the learned District Judge, Alipore in Misc. Appeal No. 408/74 arising out of the Order No. 2 dated 26th July, 1994 passed by the learned Assistant District Judge, 8th Court. Alipore in Title Suit No. 60/94.
2. The petitioners are the purchasers of premises No. 55/1, Kabi Bharati Sarani, Calcutta (formerly known as Lake Road) by purchase from the opposite parties Nos. 2 to 9 by valid Deeds of Conveyances executed pursuant to and in terms of the decree dated 5th July, 1993 passed by this Hon'ble Court in Suit No. 544/92 (Assam Bengal Veneers (P) Ltd. v. Mohit Ghosh). As a matter of fact, against an order passed in the said Suit an appeal was taken being Appeal No. 897/92 and a compromise petition was filed in the Appellate Court and a decree was passed in pursuance of this compromise petition. About a couple of months after the passing of the said decree, the respondent No. 1, LICI made an application before the Court of appeal for leave to intervene in the above proceedings and to be added as party respondents in the said appeal, for setting aside the order dated 15th January, 1993, for status quo as on 15th January, 1993 and for injunction restraining the appellant and the respondents in the appeal from changing the nature and character of the plot in any manner and not to disturb the possession of the respondent No. 1. Appropriate ad interim orders were also prayed for by the respondent No. 1. The learned Division Bench of this Court did not pass any ad interim order on the prayer of the O.P No. 1. During the pendency of the said application the O.P No. 1, LICI filed Title Suit No. 60/94 in the Court of the Learned Assistant District Judge, 8th Court, Alipore for a decree of declaration to the effect that the plaintiff was a tenant under the defendant Nos. 1 to 8 of that suit in respect of premises No. 55/1, Kabi Bharati Sarani, Calcutta (formerly known as Lake Road), at a jama of Re. 1/- per annum, for a decree for recovery of physical possession of the said premises in dispute from the defendants, for a decree for a permanent injunction restraining the defendants and their agents and servants from changing the nature and character of the suit property from transferring the physical possession of the disputed property to any third party and from creating any disturbance to the peaceful use thereof by the plaintiff as also for a decree for temporary injunction and mandatory injunction and other reliefs. After the filing of the suit O.P No. 1 made an application under Order 39, Rules 1 and 2 of the C.P.C and obtained an ex parte order of ad interim injunction restraining the defendants of the suit who are the petitioners herein from changing the nature and character of the disputed property and/or from transferring the physical possession of the suit premises or any part thereof to any third party or from creating any sort of disturbance or obstacle to the peaceful user thereof and rom dealing with the suit property in any manner whatsoever prejudicial and detrimental to the interest of the plaintiff till the hearing of the injunction petition. The learned Trial Court was pleased to pass an interim order of injunction being Order No. 2 dated 26th July, 1994. A copy of the said order has been annexed with the revisional application and marked Annexure “B”.
3. Being aggrieved by and dissatisfied with the said order the petitioners here decided to prefer an appeal and instructed their Advocate to prefer and present a Memorandum of Appeal in the appropriate Court. The learned Advocate obtaining the certified copy of the said order preferred an appeal before this Hon'ble Court being F.M.A.T No. 2472/94 on 24th August, 1994. The said matter was mentioned before the Hon'ble Mr. Justice S.K Mookherjec and the Hon'ble Mr. Justice J.K Mathur on 7th Sept., 1994. The said matter was taken up for hearing on the ground of urgency but at the time of hearing the Hon'ble Court observed that the appeal was not maintainable before the Hon'ble High Court. Then on the prayer of the learned Advocate for the appellant the said appeal was allowed to be withdrawn and the petitioners herein were permitted to file the same in the appropriate forum. The Learned Advocate for the petitioners obtained xerox copy of the order on 26-9-1994 and presented the Memorandum of Appeal after withdrawing it before the learned District Judge at Alipore on 1st October, 1994. The appeal before the Hon'ble High Court was filed in time but the Memorandum of Appeal was presented before the learned District Judge at Alipore after a delay of 28 days. So an application for condonation of delay was filed before the Court of learned District Judge along with filing of the Memorandum of Appeal along with application. Another application was made on behalf of the appellant for stay of operation of the impunged order being Order No. 2 dated 26th July, 1994 passed by the learned Trial Court at Alipore. The learned Lower Appellate Court did not consider the application for condonation of delay and rejected the prayer for ad interim stay of the operation of the order No. 2 dated 26th July, 1994. This order was passed on 3rd October, 1994 by the learned District Judge in Misc. Appeal No. 408/94.
4. It has been contended by the petitioners herein that though the Hon'ble High Court has not been pleased to pass any ad interim order on the prayer of the O.P No. 1 in Appeal No. 897/92 but the learned Trial Court has been pleased to grant ad interim order in respect of the same matter more or less on the same allegations of fact though the application before the learned Appellate Court is pending for about 11 months. It has been further submitted by the petitioners that the construction work in the dispute premises is going on since May, 1994 and the petitioners have already constructed three floors and further work is in full progress.
5. Being aggrieved by and dissatisfied with the order of the learned District Judge as also the order passed by the learned Trial Court, the petitioners have come before this Court in revision.
6. On 10-10-1994 when the matter came up before this Hon'ble Court an ad interim order of stay was passed as prayed for with liberty to either side to pray for extension, modification and/or variation of the same with notice to the other side. In pursuance of that order the LICI filed an application for vacating and/or modification and/or setting aside the interim order of stay dated 10th October, 1994.
6A. An affidavit-in-opposition has been filed against the petition of the LICI by the revision petitioners and affidavit-in-reply has also been filed on behalf of the LICI against the said affidavit-in-opposition. At the time of hearing of the application for vacating and/or modification of the interim stay order dated 10th October, 1994 the learned Lawyer for the LICI has submitted that the application for vacating the interim order may be treated as a affidavit-in-opposition to the revisional application and the entire matter may be disposed of after hearing the parties.
7. Mr. A. Mitra, learned Counsel for the petitioners also agreed to the proposal. Accordingly the main matter has been taken up for disposal along with the application for vacating the interim order.
8. The only point for consideration is whether the impunged orders are liable to be quashed.
9. Mr. S. Mitra, learned Advocate for the LICI and Mr. A. Mitra learned Advocate for the petitioners have been heard at length. The learned Counsel for the revision petitioners has submitted that prima facie it was not proper for the learned Trial Court to pass an order of ad interim injunction as in the selfsame matter. This Hon'ble Court in Appeal No. 987/92 was pleased not to grant any ad inteim relief though the matter was hanging fire for about 11 months. It has been further argued by the Learned Counsel that the LICI as plaintiff in the suit failed to take out a prima facie case for ad interim injunction. It has also been contended by the Ld. Counsel that the O.P No. 1 herein suppressed material facts before the Learned Trial Court by not disclosing that their identical application for temporary injunction and ad interim relief was pending before the Hon'ble Court in connection with the appeal mentioned above.
10. Mr. S. Mitra, learned Advocate for the O.P No. 1 herein has submitted that there was no question of the prayer of his client before the Hon'ble Appellate Court for ad interim relief being refused as his client's application for making the Corporation a party in the appeal was still pending. Unless the application for impleading his client was allowed, there was no question of giving any interim relief by way of ad interim order. The learned Advocate for the O.P No. 1 herein has further submitted that his clients's right to the disputed property as a non-ejectable tenant was affirmed in Appeal from the Original decree No. 169/58 of this Hon'ble Court which was preferred against the decision of the learned Trial Court which refused to grant the plaintiff of that suit a decree for eviction against the LICI holding that the LICI had non-ejectable tenancy right. Moreover in Suit No. 544/92 (Assam, Bengal Veneers Pvt. Ltd. v. Mohit Ghosh) filed in the Original Side of this Hon'ble Court, LICI was not a party and therefore the orders passed in the said suit and the connected appeal being Appeal No. 892/92 are not binding upon the LICI. Therefore, his client has been able to prove a prima facie case for the purpose of the ad interim relief. According to Mr. S. Mitra, learned Advocate for the LICI there has been no suppression of material facts by his client before the learned Trial Court in the suit instituted by his client. The fact that an application for temporary and ad interim injunction filed at the instance of his client was pending before this Hon'ble Court in Appeal No. 897/94 was at best the non-disclosure of a fact not material to the issue.
11. Mr. A. Mitra, learned Counsel for the petitioners has first drawn the attention of the Court to the fact that the learned District Judge without disposing of the application under Section 5 of the Limitation Act has taken up the Misc. Appeal and as such as the impugned order passed by him is without jurisdiction. The learned Counsel has also drawn the attention of the Court to the fact that the learned Trial Court passed the order under Order 39, Rule 3, C.P.C without recording the reasons or the opinion that the object of granting the injunction would be defeated by delay. It is no doubt true that the relevant proviso to Rule 3, inserted by the Amendment Act, 1976, directs recording of reasons. This requirement fulfills two-fold purposes. Firstly, the recording of reasons operates as a check against too easy granting of ex parte order of injunction, secondly, since an appeal lies against such ex parte order of injunction, such recording of reasons would go a very long way to the Appellate Court to ascertain as to whether the discretion granted under the Rule has been properly exercised. In the case at hand, the learned Trial Court has not in fact recorded the reasons for its opinion as required under the proviso to Rule 3 of Order 39 of the C.P.C The relevant portion of the order is quoted below:—
“Considering the urgency of the matter ad interim injunction restraining the defendants from changing the nature and character of the suit property and/or from transferring the physical possession of the suit premises or in part thereof to any third party and/or from creating any sort of disturbance obstacle to the peaceful user thereof and/or from dealing with the suit premises in any manner whatsoever prejudicial and detrimental to the interest of the plaintiff till the hearing of the injunction petition is allowed.”
12. The question is whether on this score only the impugned order can be shaken in revision. It has been held in Mukta Kes v. Haripada, AIR 1988 Cal 25 that if there are material on record to show that there were good reasons to pass an ex parte injunction order, the order cannot be set at naught solely on the ground that the Court while making the order did not record the reasons for proceedings ex parte. In view of this, it cannot be said that failure of the Court to record the reasons for its opinion as provided under the proviso to Rule 3 of Order 39 of the C.P.C goes to the root of the jurisdiction. The next point urged by the learned Counsel for the petitioners about the lack of jurisdiction of the Learned District Judge to entertain the matter without disposing of the application under Section 5 of the Limitation Act requires serious consideration. Generally, interlocutory applications for temporary or ad interim injunctions are filed in a pending proceeding. In the case at hand the learned District Judge passed the following order on 1-10-1994 in Misc. Appeal No. 408/94:—
“This memo of appeal has been filed as against order No. 2 dated 26-7-1994 passed in T.S No. 60/94 of the 8th Court of Assistant District Judge, Alipore along with a petition under Section 5 of the Limitation Act for condonation of delay in presenting the memo of appeal registered as Misc. Appeal.
Issue notices requiring the respondents to show cause by 20-12-1994 as to why the delay shall not be condoned as prayed for Requisite at once”
13. On the same date another application was filed praying for stay of operation of the impugned order till the disposal of the appeal. That application was directed to be posted on 3-4-1994 for hearing in presence of both sides. The matter was heard in the presence of both sides on 3-10-1994 and the impugned order of the District Judge was passed on that date. Therefore, it is obvious that the learned District Judge did not dispose of the application under Section 5 of the Limitation Act on 1-10-1994. The question is whether before the disposal of the petition under Section 5 of the Limitation Act the learned District Judge could entertain the application for ad interim order. A competent Civil Court has jurisdiction under the inherent powers to pass an order for doing substantial justice to the parties. Section 151 of the C.P.C recognises this power. So it cannot be said that the learned District Judge had no inherent jurisdiction to take up the matter for ad interim injunction even before the application under Section 5 of the Limitation Act was disposed of by him. In this view of the matter both the contentions of the learned Advocate for the LICI as stated above cannot be entertained.
14. The learned Counsel for the petitioners has submitted that the principle governing the granting of ad interim injunction are the same as the principle governing the granting of temporary injunction. The learned Counsel for the petitioners has submitted that injunction being an equitable relief, the party praying for injunction should come with clean hands. In this case, the O.P No. 1 as plaintiff in T.S No. 60/94 referred to above suppressed of material facts before the court for obtaining the order of injunction. Therefore, even if it is accepted for the sake of argument that the other conditions for granting of ad interim injunction were fulfilling, the LICI was not entitled to an order of ad interim injunction. Before we embark upon our journey to examine this main contention of the Ld. Counsel for the purpose we have to remember that the Misc. Appeal with the application under Section 5 of the Limitation Act is still pending before the learned District Judge. Any observation made in the course of disposal of the matter before this Court having a bearing upon the appeal in the Learned Appellate Court below should be avoided. Naturally, if we decide at this stage that prima facie there was suppression of material fact as alleged by the learned Counsel for the petitioners then the learned Appellate Court below will surely be influenced by that observation. Therefore, it is not proper for this Court to go into the merits of the contention of the learned Counsel of the petitioners even for the limited purpose of the injunction matter at this stage. The learned Advocate for the LICI has submitted that it is true that there is no mention about the matter pending in the Hon'ble Court in Appeal No. 897/94 within the four corners of the plaint. This is according to him is not suppression of material fact. The learned Advocate for the LICI has submitted that even if it is assumed that there is substance in the contention of the learned Counsel for the petitioners on this ground still this Court sitting in revision cannot interfere with the impunged order. The Learned Advocate has in this connection cited several cases in support of his contention.
15. The learned Advocate for the LICI has referred to in this connection the principles laid in Pandurang Dhani v. Maruti Hari Yadav AIR 1966 SC 153. In that case, it has been held that the High Court cannot while exercising its jurisdiction under Section 115, C.P.C, correct errors of fact, however, gross they may be or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the court to try the dispute itself. It is only in cases whether the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. Points of law may arise which are related to questions of jurisdiction. A plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceeding. A finding on these pleas in favour of the party which raises them would oust the jurisdiction of the Court. An erroneous decision on these pleas, therefore, can be said to be concerned with the question of jurisdiction falling within the purview of Section 115, C.P.C But an erroneous decision on a question of law having no relation to the question of jurisdiction will not be corrected by the High Court under Section 115, of the C.P.C The learned Advocate for the LICI has also referred to a decision of this Court in Arunduthi Nan v. P.M Daryanani, (1986) 90 Cal WN 1028 based upon the principles laid down in Pandurang's case (AIR 1966 SC 153) (supra) and Sher Singh's case, AIR 1978 SC 1341 and other decisions of this High Court and earlier decisions of the Privy Council. In para 2 of the reported judgment it has been held as follows:
“2. Clauses (a) and (b) of Section 115(1) of the Code of Civil Procedure providing for the invocation of the revisional jurisdiction in a case where the subordinate court has exercised a jurisdiction when there is none or has failed to exercise a jurisdiction where there is one, do not present much difficulties in their application. But it is clause (c) of Section 115(1) couched in rather wide and indefinite language and providing that the High Court may also exercise revisional jurisdiction when the subordinate Court “appears to have acted in the exercise of its jurisdiction illegally or with material irregularity” that has led the various High Courts to go on enlarging the jurisdiction beyond permissible limits on the assumption that all cases of gross errors of law or facts would come within the ambit of this clause (c) and such a view has very often been adhered to in spite of its repeated repudiation by the Privy Council and the Supreme Court during all these years spreading over more than a century.”
16. The learned Advocate for the respondent No. 1 has also referred to the principles laid down in Pravag Ram v. Ritesh Kumar (1988) 92 Cal WN 691. In the reported decision in paragraph 4 it has been held that the mere fact that the decision is erroneous in fact or law does not amount to illegal or irregular exercise of jurisdiction and that while exercising the revisional jurisdiction it is not competent for the High Court to correct errors of fact or law, however, gross or manifest, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself.
17. From the decisions cited above it can be inferred that mere errors of fact or law, however gross the error may be even, if causing irreparable injury are not the foundation to interfere by High Court under its revisional jurisdiction unless there is a jurisdiction error. The main contention of the learned Counsel for the petitioners is that the learned Trial Court has granted ad interim injunction in a matter which is substantially identical and is pending in the Hon'ble High Court and further that the order of ad interim injunction was obtained by suppressing that fact and further that the plaintiff in the suit was out of possession. Even if the contention of the learned Counsel for the petitioners is accepted on its face value, it can be at best argued that the learned Courts below acted illegally and that illegality is prone to cause irreparable damage to the petitioners. But in view of the clear principles laid down in the cases cited above, it cannot be said that the faulted decision provide any ground for interference in revision by the High Court. As the Misc. Appeal with the petition under Sec. 5 of the Limitation Act is still pending before the learned Appellate Court below, therefore, the proper forum for agitating the matter is that Court. The question of suppression of material facts is a mixed question of law and fact and the revisional court is not the proper forum for agitating that point unless it goes to the root of the jurisdiction of the court to decide that matter. Here there is no dispute about the fact that the learned Appellate Court below has jurisdiction to entertain the matter. Therefore, the contention of the learned Advocate for the petitioners fails.
18. The last point which has been argued by the Id. Counsel for he petitioners is that in view of the principles laid down in Govinda Waman v. Murlidhar, AIR 1953 Bom 412, the LICI was bound to include a prayer for setting aside the impunged proceedings in the High Court and without that prayer LICI cannot maintain its action. This contention of the learned Counsel has been strenuously controverted by the Ld. Advocate for the LICI. In that case it was held that a consent decree passed by a Court of competent jurisdiction cannot be treated on the same footing as a contract between the parties. It is true that before a court passes a consent decree, it can and should examine the lawfulness and validity of the terms of the proposed compromise. But once that stage is passed and a decree follows, different considerations arise. Thus where a compromise decree contains a term against alienating certain properties and gives the other party right to its possession on such alienation, the decree is not a nullity in spite of the fact that the term is opposed to Section 10 of T.P Act. It is merely contrary to law and binds the party thereto, unless it is set aside by taking proper proceedings.
19. It is clear that the dicta in this case can apply only to the parties to the proceedings, and not to the outsider. Here in our case the LICI was not a party to the proceeding in Appeal No. 897/92 of this Hon'ble Court. Therefore, the decree passed in that appeal is not prima facie binding upon them.
20. In view of the discussion made above it is found that the revisional application must fail. Accordingly, the revisional application is dismissed. As the matter has some urgency, therefore, the Ld. Appellate Court below is directed to dispose of the matter as expeditiously as possible, preferably within one month from the date of communication of this order. The Ld. Counsel for both the sides are given liberty to communicate the gist of the operative part of the order to the learned Court below and the learned Court below is directed to act upon the same.
Revision dismissed.
Comments