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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Dr. N.P Asthana and Mr. K.B Asthana, for the appellant.
  • Mr. Sankar Saran, for the respondent.
Judges
  • Sir Edward Bennet
  • Verma, JJ.
Acts
  • provisions of Order 39, Civil P.C.,
  • Code. Order 33, Rule 1
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Dr. N.P Asthana and Mr. K.B Asthana, for the appellant.
  • Mr. Sankar Saran, for the respondent.
Judges
  • Sir Edward Bennet
  • Verma, JJ.
Acts
  • provisions of Order 39, Civil P.C.,
  • Code. Order 33, Rule 1
See more information ...
Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

The appeal challenges an order of the lower Court directing a temporary injunction against the appellant restraining him "from transferring the properties in dispute except so far as may be necessary for ordinary enjoyment of the same," and restraining him "from receiving the amounts in dispute from the post office and the Court of Wards till 6th August 1938," that date being fixed for hearing objections of the post office and the Court of Wards.

The factual matrix as set out in the opinion is as follows. Nath Prakash Dhar Misra died some years earlier; his widow, Mt. Moharmani Kunwari, died on 23rd August 1935. The respondent, Ghanshyam Dhar Misra, filed a plaint in the Civil Judge's Court at Gorakhpur on 28th April 1938 claiming the property left by Nath Prakash Dhar Misra on the ground that he was the reversioner and that succession opened to him on the date of the widow's death. The respondent alleged pauperism and sought leave to sue as a pauper.

On 30th May 1938 the respondent moved for an injunction restraining the appellant (named as defendant 1) from alienating, damaging or removing the properties and from receiving certain monies. The lower Court heard that application before deciding the respondent's application for leave to sue as a pauper. The appellant contested the injunction application, principally arguing that until the pauper application was granted (or the requisite court-fee paid) there was no maintainable suit and hence no jurisdiction to grant an injunction. The lower Court overruled that objection and granted the provisional relief complained of. This appeal followed.

Legal Issues Presented

  1. Whether a court may grant interim injunctive relief before the application for leave to sue as a pauper has been granted and the application thereby numbered and registered so as to constitute a "suit" for the purposes of Order 39, Civil P.C.
  2. Whether the lower Court could exercise jurisdiction to grant the injunction under Order 39 or under its inherent powers (section 151 of the Code of Civil Procedure) in the circumstances then before it.
  3. Whether the proceedings should be regarded and treated as an appeal or as a petition for revision, and whether an appeal lies against such an order (the Court declined to decide this question definitively).
  4. Whether the injunction restraining receipt of periodic payments from the Court of Wards imposed an unduly harsh result on the appellant (a merits question addressed briefly by the Court).

Arguments of the Parties

Appellant's Arguments

  • The appellant's primary contention was that Order 39, Civil P.C., contemplates the existence of a "suit" before an injunction can be issued; until the respondent's application for leave to sue as a pauper was granted (or the court-fee paid), there was no suit and therefore no jurisdiction to grant injunction.
  • The appellant also objected that the injunction application was not maintainable since the pauper status had not yet been determined.

Respondent's Arguments

  • The respondent contended that the lower Court had jurisdiction to pass the order at the stage at which the proceedings stood, and that the Court could act by invoking its inherent powers (section 151 of the Code) to protect the subject-matter of litigation.
  • The respondent relied on the facts and an affidavit filed in support of the injunction application; those allegations were not denied in writing by the appellant.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Durga Dihal Das v. Anoraji (1895) 17 All 29 at p.31 That the Civil Procedure Code is not exhaustive and that Courts may proceed on the assumption of inherent power to do substantial justice (ex debito justitiae). Cited to support the proposition that Courts possess inherent powers beyond express procedural provisions and may act to protect property in appropriate circumstances.
Manohar Lal Mahabir Pershad v. Jainarain Babu Lal (1920) 7 AIR Lah 436 Recognises the power of the Court (Lahore High Court) to issue temporary injunctions exercising inherent jurisdiction when circumstances require. Relied upon as principal authority supporting the view that the lower Court could grant interim injunctions under inherent powers.
Hukum Chand Boid v. Kamalanand Singh (1906) 33 Cal 927 Observations (by Woodroffe J. and Mookerjee J.) supportive of a broad view of Court powers to do justice in appropriate cases. Referred to (through the Manohar Lal judgment) as supportive textual authority for the exercise of inherent jurisdiction to grant interim relief.
Kanshi Ram v. Sharfdin (1923) 10 AIR Lah 144 Followed Manohar Lal: consistent Lahore High Court authority for the inherent-power approach. Invoked to show consistent Lahore practice in favour of inherent jurisdiction to grant injunctions.
New Delhi Theatres Ltd. v. Kailash Chand (1933) 20 AIR Lah 73 Another Lahore decision following the rule in Manohar Lal regarding inherent jurisdiction. Used to demonstrate continued adherence by Lahore High Court to the principle that courts can grant injunctions under inherent powers in suitable cases.
Varadacharlu v. Narasimha Charlu (1926) 13 AIR Mad 258 Madras High Court single-judge decision taking a restrictive view: unless matter strictly falls within Order 39, a Court has no power to issue an injunction. Cited as a contrasting authority showing that some High Courts have taken a narrower view of inherent powers; the opinion notes this contrary position.
Ayyamperumal Nadar v. Muthuswami Pillai (1927) 14 AIR Mad 687 Madras single-judge decision aligned with Varadacharlu restricting power to issue injunctions outside Order 39. Cited to illustrate the Madras viewpoint that tends to confine injunctions to situations covered by Order 39.
Periakaruppan Chettiar v. Ramaswami Chettiar (1928) 15 AIR Mad 491 Bench decision; the court expressed doubt whether a subordinate Court could restrain prosecution of a suit in a foreign Court by injunction. Referred to as addressing a different question (injunction to restrain suits in foreign courts) and indicating limits to inherent jurisdiction; used for comparative purposes.
Muhammad Inamullah Khan v. Narain Das (1915) 2 AIR All 277 Assumed that Courts were intended to have powers outside the orders and rules in exceptional cases; decided on the merits. Cited among All-India decisions; noted as not being contrary to the view favouring inherent powers (and decided on its merits).
Harnand Lal v. Chaturbhuj (1926) 13 AIR All 212 Provided an interpretation of section 151 of a far-reaching character (All-India Court decision). Mentioned as part of the All-India authorities considered when assessing whether lower Court had power to grant injunction under inherent jurisdiction.
Beni Prasad v. Gomata Kuar (1890) AWN 167 Principle in favour of the Court below having power to grant injunction (as interpreted by subsequent writers/decisions). Noted as supporting the view that the lower Court could legitimately exercise inherent powers to grant interim protection.

Court's Reasoning and Analysis

The Court proceeded through a focused analysis, and the reasoning can be traced in the following steps as set out in the opinion:

  1. Preliminary statutory context: the Court reviewed the procedural provisions relevant to pauper suits (Order 33 of the Code). It noted that Rule 8 of Order 33 provides that when a pauper application is granted and the application is numbered and registered it shall be deemed the plaint and the suit shall be treated as instituted on the date the pauper application was presented. The Court acknowledged force in the appellant's contention that, strictly speaking, until the application for leave has been granted and numbered there may not be a "regular" suit.
  2. The Court expressly declined to decide whether a "suit" existed at the time the injunction was granted (i.e., whether the pauper application had created a suit prior to the formal grant). The Court considered that it was unnecessary to resolve that technical question for disposal of the appeal.
  3. In place of deciding the Order 39 question definitively, the Court turned to whether the lower Court could act under its inherent jurisdiction derived from section 151 of the Code. The respondent had urged the lower Court had done so; the appellate Court therefore examined authorities bearing upon the existence and scope of inherent power to grant injunctions.
  4. The Court cited Durga Dihal Das and a line of Lahore High Court decisions (Manohar Lal and its followings) which support the proposition that the Civil Procedure Code is not exhaustive and that Courts possess inherent jurisdiction to do "real and substantial justice" (ex debito justitiae) where the circumstances require it. The Court quoted with approval an observation (Woodroffe J.) that a judge should be slow to believe the Court's powers are inadequate to order what it believes to be just.
  5. The Court contrasted these authorities with differing decisions from the Madras High Court (single-judge decisions) that favored a restrictive view restricting injunctions to cases strictly within Order 39. It also noted certain All-India and Allahabad decisions; none were found to run counter to the Lahore view in a manner that would justify overturning the lower Court's exercise of jurisdiction.
  6. On that basis the Court concluded the lower Court had ample jurisdiction to pass an order for the protection and security of the property in dispute, whether under inherent jurisdiction or otherwise, and therefore the order was properly made.
  7. Merits assessment: the Court observed the appellant had not filed any written reply to the respondent's application or affidavit. The respondent's affidavit and allegations were therefore uncontroverted on the record before the Court. Given the lack of controverting material the appellate Court found it could not say the lower Court's order was wrong on the merits.
  8. As to the specific complaint that restraining receipt of funds from the Bettiah Court of Wards would operate harshly on the appellant, the Court noted that no materials had been placed before it to show the lower Court's decision was wrong. The Court indicated, however, that the lower Court would be expected to consider any application by the appellant for modification of the order concerning such payments.
  9. Procedural posture: the Court observed that it was unnecessary to decide whether appeal lay or whether the proper remedy was revision; in any event the Court proceeded to decide the matter on the merits and refused to interfere with the lower Court's order.

Holding and Implications

Holding: The appeal is DISMISSED and the order of the lower Court granting the temporary injunction (as described in the background) is upheld. The Court directed that the appellant pay costs.

Implications:

  • The direct effect is that the injunction previously granted by the lower Court remains in force: the appellant is restrained (as per the order) from transferring the properties in dispute except for ordinary enjoyment and from receiving the contested amounts from the post office and the Court of Wards until the date fixed for hearing (as specified in the order).
  • The Court affirmed the view that a subordinate Court has power, in appropriate circumstances, to grant interim relief for the protection of property by resort to inherent jurisdiction (section 151), following the line of authority represented by the Lahore decisions and the principle that the Code is not exhaustive. The opinion does not purport to lay down a novel rule of law beyond applying and approving that existing line of authority in the circumstances of this case.
  • No broader or new precedent beyond the application of existing authorities is announced; the opinion emphasizes that the lower Court's exercise of jurisdiction was justified on the authorities and the uncontroverted factual material before it. The Court also indicated that if the appellant seeks modification of particular aspects of the injunction (for example, with respect to payments by the Court of Wards), the lower Court should consider such an application on its merits.

This summary is strictly based on the arguments, reasoning, authorities and outcome explicitly contained in the provided opinion and does not add or infer facts or legal propositions beyond that text.

Show full summary ...

    Dhaneshwar Nath Tewari v. Ghanshyam Dhar Misra

    1. This is an appeal against an order directing a temporary injunction to issue against the appellant restraining him "from transferring the properties in dispute except so far as may be necessary for ordinary enjoyment of the same," and restraining him "from receiving the amounts in dispute from the post office and the Court of Wards till 6th August 1938" which date was fixed for hearing the objections of the post office and the Court of Wards to whom notices were directed to issue.

    2. The matter has arisen thus. One Nath Prakash Dhar Misra died some years ago leaving him surviving a widow Mt. Moharmani Kunwari. Nath Prakash Dhar Misra seems to have been possessed of considerable property, moveable and immovable. His widow died on 23rd August 1935. The respondent, Ghanshyam Dhar Misra, on 28th April 1938, presented a plaint in the Court of the Civil Judge of Gorakhpur claiming the property left by Nath Prakash Dhar Misra on the allegation that he was the reversioner and that the succession had opened to him on 23rd August 1935, when Mt. Moharmani Kunwar died. Ghanshyam Dhar Misra alleged that he was a pauper and was unable to pay the court-fee prescribed by the law on the plaint and prayed for leave to sue as a pauper. On 30th May 1938, Ghanshyam Dhar Misra presented an application praying that an injunction be issued to the appellant restraining him from damaging or alienating and removing the properties in suit and from doing various other things. The appellant is named in the plaint as defendant 1, and it is averred by Ghanshyam Das Misra that defendant 1 has without any right and title taken possession of the estate of Nath Prakash Dhar Misra on the false allegation that he is an adopted son of Nath Prakash Dhar. He has also alleged that the appellant was anxious to alienate the properties and to remove and appropriate the moveables and the cash. This application for an injunction being issued to the appellant was taken up for hearing by the Court below before the question of the plaintiff's pauperism had been decided. The application was contested by the appellant. He did not however file any written reply to the application of the respondent dated 30th May 1938. The main objection which seems to have been taken by the appellant before the Court below was that as the question of pauperism had not yet been decided the application was not maintainable. The Court below has overruled this objection and has passed the order mentioned above.

    3. The learned Counsel for the appellant has referred to the provisions of Order 39, Civil P.C., and has urged that there must be a 'suit' before the Court can have jurisdiction to issue an injunction. His contention is that until the application for leave to sue as a pauper has been granted, or the necessary court-fee has been paid by the respondent on his plaint, there is no suit. It has, on the other hand, been argued by the learned Counsel for the respondent that the Court below had jurisdiction to pass the order complained of at the stage at which the proceedings were in the Court below when that order was passed. The question that has been raised is not free from difficulty. The word 'suit' has not been defined in the Code. Order 33, Rule 1 lays down that "any suit may be instituted by a pauper" subject to the provisions which follow. Rule 2 of that Order directs that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits...and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

    4. It is provided by Rule 8 that where the application is granted it shall be numbered and registered and it shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner except that the plaintiff shall not be liable to pay any court-fee....

    5. On the one hand, it is clear that when the application is so numbered and registered, the suit shall be deemed to have been instituted on the date on which the application for leave to sue as a pauper was presented. On the other, the contention of the learned Counsel for the appellant that until the application has been granted and has been numbered and registered, there is strictly speaking, no regular 'suit' is not quite without force. We do not however consider it necessary to express any opinion on the question whether there was or was not a 'suit' before the Court below on the date on which the order appealed against was passed. The Court below does not purport to have acted under Order 39. It has been urged on behalf of the respondent that the Court below has really passed the order in question in the exercise of its inherent powers under section 151 of the code. It is not necessary to consider the question whether in these circumstances an appeal lies to this Court against the order of the Court below and whether it would not be more appropriate to treat the appeal as a petition for revision for, having heard learned Counsel, we have come to the conclusion that no sufficient grounds have been made out for interference with the order of the Court below, whether we treat the petition of the appellant as an appeal or as a revision.

    6. It seems to us that, apart altogether from Order 39 of the Code, the Court below had ample jurisdiction to pass an order providing for the protection and security of the property which is the subject-matter of the litigation. It has been held in this Court that the Civil Procedure Code is not exhaustive: Durga Dihal Das v. Anoraji (1895) 17 All 29 at p. 31. This view has been followed in the other High Courts. The Courts have therefore in many cases, where the circumstances require it, to proceed upon the assumption of the possession of inherent power to act ex debito justitia and to do that real and substantial justice for the administration of which alone they exist. It is obvious that the law cannot make express provisions against all contingencies, and it has therefore been held that it is the duty of the Court to apply the provisions of the law not only to what appears to be regulated by them expressly but to all the cases to which a just application of them may be made and which appear to be comprehended either within the express sense of the law or within the consequences that may be gathered from it. This topic has been the subject of numerous decisions given in cases arising out of a variety of circumstances. So far as this question of the power to issue temporary injunctions is concerned, we would refer to the decision of the High Court at Lahore in Manohar Lal Mahabir Pershad v. Jainarain Babu Lal,(1920) 7 AIR Lah 436. Reference is made in the judgment of that case to the decision of Calcutta High Court in Hukum Chand Boid v. Kamalanand Singh (1906) 33 Cal 927. The observations of Woodroffe J. at p. 930 et seq and of Mookerjee J. at p. 940 et seq, are in point. We need only quote this observation of Woodroffe J.:

    For my part I am always slow to believe that the Court's powers are unequal to its desire to order that which it believes to be just.

    7. The Lahore High Court has consistently followed the rule laid down in Manohar Lal Mahabir Pershad v. Jainarain Babu Lal,(1920) 7 AIR Lah 436 mentioned above: vide Kanshi Ram v. Sharfdin (1923) 10 AIR Lah 144 and New Delhi Theatres Ltd. v. Kailash Chand (1933) 20 AIR Lah 73. The Madras High Court, on the other hand, is inclined to the view that unless the matter comes strictly within the provisions laid down in Order 39 of the Code, a Court has no power to issue an injunction: Varadacharlu v. Narasimha Charlu (1926) 13 AIR Mad 258 and Ayyamperumal Nadar v. Muthuswami Pillai (1927) 14 AIR Mad 687. They are both decisions of single Judges. It is to be noted however that in both of these cases the question that arose for decision was whether the Court should have granted an injunction restraining the execution of a decree passed by a competent Court. Reference has also been made to the case in Periakaruppan Chettiar v. Ramaswami Chettiar (1928) 15 AIR Mad 491, which is a Bench decision. But the question which arose for decision in that case was whether a subordinate Court in British India has power to restrain by injunction a party from prosecuting a suit in a foreign Court, and it was observed that it was doubtful whether such a power existed. So far as this Court is concerned, only three cases have been cited. One of them is Muhammad Inamullah Khan v. Narain Das (1915) 2 AIR All 277. It was assumed there that "it was intended to give the Court powers outside the orders and rules in exceptional cases," and the case was decided on the merits and it was held that on the facts the order could not be justified. The other case is that in Harnand Lal v. Chaturbhuj (1926) 13 AIR All 212. An interpretation of a far-reaching character was placed on Section 151 in that case. The principle underlying the decision of Mahmood J. in Beni Prasad v. Gomata Kuar (1890) AWN 167 is in favour of the view that the Court below had the power to grant the injunction. It would thus appear that there is no case in this Court which runs counter to the decisions of the High Court at Lahore which support the contention put forward by the respondent. Apart from the Madras cases mentioned above, no authority has been cited in support of the proposition that the Court below was powerless to pass such orders as it considered necessary for the preservation of the property in respect of which the respondent had filed a plaint and had applied for leave to sue as a pauper, and which in the opinion of the Court below were necessary in the interests of justice. We agree with the view that has been taken in Lahore. In our opinion therefore the Court below had jurisdiction to make the order complained of.

    8. On the merits it has been suggested that the order restraining the appellant from receiving the money which the Bettiah Court of Wards pays periodically would operate harshly against him. No materials have however been placed before us to show that the decision of the Court below is wrong. As stated above, the appellant did not even file a written reply to the application of the respondent, who had not only filed a written application stating facts which, according to him, entitled him to the injunction claimed, but had also filed an affidavit in support of that application. The position thus is that the allegations made by the respondent in his application and affidavit have not been controverted. Consequently it is not possible for us to say that the Court below was wrong. We cannot therefore interfere. We have no doubt however that if the appellant applies to the Court below for a modification of the order with regard to the payments by the Bettiah Court of Wards, the Court below will give to the application such consideration as it deserves. For the foregoing reasons we dismiss this appeal with costs.

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    Dhaneshwar Nath Tewari v. Ghanshyam Dhar Misra
    (Dec 7, 1939)