ING VYSYA BANK LTD v. ALL INDIA ING VYSYA BANK EMPLOYEE'S UNION AND ANR

restraining the Defendants i.e. the bank employees union and the bank officers association from demonstrating or carrying out any meetings, gherao etc. or any other form of protest within a radius of 500 sq. mtrs of the Plaintiff's premises including the Regional offices and the branches/office premises within the area of Greater Mumbai. It was pleaded that on 30^thNovember, 2010, the Defendants had issued a circular calling upon their members to hold demonstration at all important locations on 18^thDecember, 2010 in support of their demands. The said circular was followed by another circular dated 14^th December, 2010. Subsequently, demonstrations were held and in continuation of their aggressive tactics, the Defendants threatened to intensify the agitation and issued another circular dated 31^st January, 2011 calling for an all India strike on 17^thMarch, 2011. It was therefore apprehended that the Defendants would indulge in demonstrations and other form of protest at the Plaintiff's place of work which will hamper the banking operations of the Plaintiff. Armed with these assertions, the suit for injunction came to be filed before the City Civil Court in the month of March, 2011.

4. The City Civil Court kept the matter for hearing the parties on the point of maintainability of the suit. After hearing the Advocate for the Plaintiff, the learned Judge held that the suit related to bank and its employees and such type of dispute cannot be entertained by the

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Civil Court. It was further held that specific forum is available for making a grievance about it and that the same should be agitated before the appropriate forum as per Industrial Disputes Act. The learned Judge held that the Civil Court cannot entertain such dispute and the suit is not maintainable in the Civil Court. By the impugned judgment and order, the learned Single Judge dismissed the suit as not maintainable.

5. Heard Mr. Thorat, learned counsel for the Appellant.

6. Mr. Thorat, learned counsel for the Appellant submits that the stage at which the parties were heard was before the issuance of the summons and in event the Court was of view that the suit is not maintainable on ground of jurisdiction, the appropriate course was to return the suit for presentation before the proper forum. He submits that while holding that the suit is not maintainable, the learned Single Judge has assumed jurisdiction and passed an order of dismissal. He submits that upon an objection to jurisdiction, which in the present case has not been raised by the Defendants, a preliminary issue should have been framed under Section 9A of the Code of Civil Procedure and thereafter, upon determination of the said issue, the appropriate order should have been passed. He submits that there is no provision in the Code of Civil Procedure by which the Court could have dismissed the suit as not maintainable. In support of his

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contentions, he relies upon the following decisions:

 Chandra Prem Shah And Ors. vs. K. Raheja Universal Pvt. Ltd. And Anr. [2015 SCC OnLine Bom 2484].

 Kripa Ram (deceased ) Thr. Legal Representatives And Ors. vs. Surendra Deo Gaur And Ors. [(2021) 13 SCC 57].

 Asma Lateef And Anr. Vs. Shabbir Ahmand And Ors.

[(2024) 4 SCC 696].

Reasons and Analysis:

7. The suit had been filed under Section 38 of the Specific Relief Act,1963 seeking an order of permanent injunction restraining the Defendants from carrying out any protest within a radius of 500 meters of Plaintiff's premises. The specific case of the Plaintiff is that there is an apprehension that the Defendants would indulge in demonstrations and other illegal activities resulting in hampering the Plaintiff's banking business and thus, the order of perpetual injunction was sought.

8. For the purpose of testing the jurisdiction at the inception of the suit, the averments in the plaint are required to be considered. As is evident from the pleadings, the suit was simpliciter for injunction based on the apprehensions expressed in the plaint and was required to be filed in City Civil Court. Section 9 of CPC provides that the Court has jurisdiction to try all suits of Civil nature excepting suits of which the cognizance is either expressly or impliedly barred. It is settled

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position in law that the ouster of jurisdiction of the Civil Court is not to be readily inferred. In State of A.P. Vs Manjeti Laxmi Kantha Rao (Dead) by LRS (2000) 3 SCC 689, the Apex Court held as under:

"The normal rule of law is that Civil Courts have jurisdiction to try all suits of civil nature except those of which cognisance by them is expressly or impliedly excluded as provided under Section 9 of CPC but such exclusion is not readily inferred and the presumption to be drawn must be in favour of existence rather than exclusion of jurisdiction of civil courts to try a civil suit. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order under it".

9. It is thus clear that the Civil Court's jurisdiction is not excluded except in cases of express or implied bar. Which has to be determined by applying the tests laid down by the Apex Court. Now coming to the present case, the suit was for injunction albeit by a Bank against its employees. The inquiry contemplated before coming to a finding of ouster of jurisdiction was whether the subject matter was covered by other statute, whether there was an express or implied bar from adjudicating the dispute by the Civil Court and whether an adequate remedy is provided by such statute.

10. By the impugned judgment and order, the suit has been

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dismissed holding that the dispute is a dispute between the employer and employee for which there is specific forum available for making grievance and can be agitated before appropriate forum as per Industrial Disputes Act. The impugned order reflects a general observation being made solely on the basis of the relationship of employer employee without entering into any discussion whether the subject matter of the suit was covered by the provisions of Industrial Disputes Act, 1947. Section 2(k) of Industrial Disputes Act, 1947 defines industrial dispute as under:

" 2(k): "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non employment or the terms of employment or with the conditions of labour, of any person."

11. It is thus clear that the authorities and Tribunals constituted under the Industrial Disputes Act, 1947 would have the jurisdiction where an industrial dispute as defined under Section 2(k) arises. In the present case, the suit was simplicitor for perpetual injunction under Section 38 of Specific Relief Act, 1963 and was unconnected with the terms of employment or conditions of labour of the Defendants and it is only the Civil Courts which would have jurisdiction to decide the lis.

12. Coming to the course adopted by the Civil Court, at the

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relevant time, Section 9A which was Maharashtra Amendment to Code of Civil Procedure, 1908 provided for deciding the issue of jurisdiction as preliminary issue where an objection to the jurisdiction to entertain the suit is taken. Although it is settled that non pleading of issue of jurisdiction does not clothe the Civil Court with jurisdiction when expressly barred, the appropriate course was to frame a preliminary issue of jurisdiction and decide the same. Order VII Rule 10 of CPC provides for return of plaint by the Court in which the suit should have been instituted. The provisions of Order VII Rule 11 which deals with the rejection of the plaint provides for the contingency in which the plaint may be rejected and in the present case, the rejection does not fall in either of clauses (a) to (f) of the Order VII Rule 11 of

CPC.

13. The procedure adopted by the Civil Court is alien to the provisions of CPC. Even assuming arguendo that the Civil Court did not have the jurisdiction, the plaint should have been returned for presentation to the proper Court and could not have been dismissed. I find considerable force in submission of Mr. Thorat that by dismissing the suit, the Civil Court has assumed jurisdiction which it could not have done if it holds that the jurisdiction is barred.

14. Learned Single Judge of this Court in the case of Chandra Prem Shah (supra) has observed that Order VII Rule 10 contemplates

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the situation that the suit is to be tried by the special forum and empowers the Court to return the suit for presentation before the Court where it should have been instituted and in event the Court within the purport of Order VII, Rule 10 of the CPC comes across such a situation, then the Court is justified in returning the suit. In the case of Kripa Ram And Ors. (supra) the Apex Court was considering a suit simpliciter for injunction based on possession of the property and an objection was raised that it is a proceeding under the Land Revenue Act and the jurisdiction of the civil Court to entertain the boundary dispute is barred. The Apex Court held that the suit simpliciter for injunction based on possession of the property would be decided only by the Civil Court which has plenary jurisdiction to entertain all disputes in the absence of any express or implied bar.

15. In the case of Asma Lateef And Anr. (supra), the Apex Court has held that the jurisdiction is the entitlement of the Civil Court to embark upon an enquiry as to whether the cause has been brought before it by the plaintiff in a manner prescribed by law. The enquiry as to whether the civil court is entitled to entertain and try a suit has to be made by it keeping in mind the provision in Section 9 of CPC and the relevant enactment, which according to the objector, bars a suit. If the Court is of the opinion at the stage of hearing the application for interim relief that the suit is barred by law or is otherwise not

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maintainable, it cannot be dismissed without framing of preliminary issue after the written statement is filed.

16. It is therefore clear that before the suit is dismissed as not maintainable an issue in that regard is required to be framed under Section 9A either as preliminary issue or under Order 14 Rule 2 of CPC. If upon determination of the issue of jurisdiction, the Court is of the opinion that it does not have the jurisdiction to decide the same, the appropriate course is under order VII Rule 10 to return the plaint for presentation to the proper Court.

17. In the present case, the City Civil Court has dismissed the suit as not maintainable without any cogent and reasoned findings on the bar of the jurisdiction of Civil Court. The observations are general observations to say the least. It was necessary to invoke the provisions of Section 9A or Order 14 Rule 2 of CPC before holding that the jurisdiction of the Civil Court was barred. Even if it was held that the jurisdiction is barred the plaint was required to be returned for presentation to the proper Court and could not have been dismissed.

18. In light of the discussion above, Appeal succeeds. The impugned judgment and order dated 29^thJuly, 2011 is legally unsustainable and is hereby quashed and set aside. Resultantly, S.C Suit No. 539 of 2011 is restored to file. In event, there is an objection to jurisdiction, the Civil Court to adopt the appropriate course prescribed by Code of Civil

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Procedure, 1908.

19. In view of disposal of the Appeal, Civil/Interim Application, if any does not survive for consideration and the same is disposed of.

[Sharmila U. Deshmukh, J.] Harish 11 of 11

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