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State of Tripura and ors. Vs. Sajal Kanti Sengupta - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 46 of 1981
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80, 80(1), 80(2), 115 and 151; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantState of Tripura and ors.
RespondentSajal Kanti Sengupta
Appellant AdvocateS. Banerjee, Adv.
Respondent AdvocateA.M. Lodh and H. Lodh, Advs.
DispositionPetition allowed
Prior history
S.M. Ali, J.
1. This application under Section 115 C.P.C. and under Article 227 of the Constitution of India is directed against the order dated 20-10-81 passed by Shri B.B. Deb, Munsiff, Sadar at Agartala in Misc. Case No. 390 of 1981 arising out of the Title Suit No. 314 of 1981. The circumstances leading to the present petition are as follows:
The plaintiff who is serving at Sonamura, West Tripura District in the post Of Sub-Divisional Public Relations Offi-

cer was transferred to
Excerpt:
.....suit, return the plaint for presentation to it after complying with the requirement of sub-section (1). it is, therefore, found that those provisions are an exception to the provisions of sub-section (1) of section 80 c. ' therefore, it is quite clear that the learned munsiff found that the relief asked for by the plaintiff was urgent and/or immedidate but the provisions of sub-section (2) are clear and a situation like the present one comes within the purview of these provisions......plaintiff whereupon misc. case no. 390 of 1981 was started. as regards temporary injunction the learned munsiff tided over the constraint of the provisions of sub-section (2) of section 80, c.f.c. by having resort to section 151 c.p.c. and made the impugned ex parte order of temporary injunction restraining the defendants nos. 1-3 from implementing giving effect to the impugned order of transfer and issued show cause notice to the defendants fixing 5-11-81 for hearing about the temporary injunction. thereafter this revision petition has been instituted challenging the aforesaid order. 2. learned counsel for the plaintiff opposite party submitted that this revision petition is not entertainable in view of sub-section (2) of section 115, c.p.c. wherein it is laid down that the high.....
Judgment:

S.M. Ali, J.

1. This application under Section 115 C.P.C. and under Article 227 of the Constitution of India is directed against the order dated 20-10-81 passed by Shri B.B. Deb, Munsiff, Sadar at Agartala in Misc. Case No. 390 of 1981 arising out of the Title Suit No. 314 of 1981. The circumstances leading to the present petition are as follows:

The plaintiff who is serving at Sonamura, West Tripura District in the post Of Sub-Divisional Public Relations Offi-

cer was transferred to Kanchanpur T.D. Block 'in the same rank', by an order of the Joint Director, Information, Cultural Affairs and Tourism, Government of Tripura, Agartala dated 30-9-81. Being aggrieved by the said order of transfer the plaintiff opposite party instituted T.S. No. 314 of 1981 in the Court of Sadar Munsiff, Agartala for declaration of the order of transfer as void, invalid and illegal and for perpetual injunction. A prayer for temporary injunction was also made by the plaintiff whereupon Misc. Case No. 390 of 1981 was started. As regards temporary injunction the learned Munsiff tided over the constraint of the provisions of Sub-section (2) of Section 80, C.F.C. by having resort to Section 151 C.P.C. and made the impugned ex parte order of temporary injunction restraining the defendants Nos. 1-3 from implementing giving effect to the impugned order of transfer and issued show cause notice to the defendants fixing 5-11-81 for hearing about the temporary injunction. Thereafter this revision petition has been instituted challenging the aforesaid order.

2. Learned counsel for the plaintiff opposite party submitted that this revision petition is not entertainable in view of Sub-section (2) of Section 115, C.P.C. wherein it is laid down that the High Court shall not under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. Under the provisions of Order 43(1)(r) an order under Rules 1 and 2 of Order 39, C.P.C. is appealable. Learned counsel for the defdt. petitioners on the other hand, was of opinion that these provisions apply to an appeal to the High Court and do not apply to an appeal to a subordinate Court. An appeal against an order of temporary injunction lies to the Court of the Subordinate Judge and not to High Court, and, therefore, according to the learned counsel the revision to the High Court is quite maintainable. In support he relied on S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497, Vidya Vati v. Devi Das, AIR 1977 SC 397 and Vasu v. Narayanan, AIR 1962 Ker 261. But these decisions relate to a period prior to the coming into force of the amended C.P.C. In the unamended Section 115 of old C.P.C. there was no mention of the appellate Court and it was ruled in these cited cases that where appeal lies to any Court below the High Court revision under Section 115, C.P.C. lies to the High Court and that if the

appeal lies to the High Court revision under Section 115, C.P.C. cannot be entertained. But in order to avoid the ambiguity found in the provisions of the old section the amendment to Section 115, C.P.C. has made it clear that revision is barred against the order in which an appeal lies either to the High Court or to any Court subordinate thereto. So it is found that revision is incompetent against an order in which appeal lies either to the High Court or to any Court subordinate thereto. In that view this revision is quite incompetent. Learned counsel for the defdt. petitioners gave up the point and had recourse to the submission that as the impugned order of temporary injunction has been passed by the learned Munsiff under Section 151, C.P.C. the revision is quite competent in the High Court. It is found, however, that the impugned order dated 20-10-81 was passed by the learned Munsiff in exercise of his inherent powers under Section 151 C.P.C. (sic). The learned counsel for the plaintiff opp. party pointed out that the impugned order of temporary injunction was passed by the learned Munsiff under Order 39, Rule 2 C.P.C. and that this being the position the order is appealable and hence not amenable to revision in view of the provisions of Sub-section (2) of Section 115, C.P.C.

3. But this view of the learned counsel cannot be accepted because the learned Munsiff in his impugned order recorded his reasons of taking recourse to inherent power provided under Section 151, C.P.C. He is clear in his order that he exercised his inherent power to give the temporary relief to the plaintiff opposite party. He found that in the face of the provisions of sub-section (2) of Section 80, C.P.C. he cannot pass any interim order. He also was of opinion that the inherent power of the Court prevails over the other provisions of the C.P.C. 'in an unpredictable situation only with a view to protect the ends of justice and/or prevent the abuse of the process of the Court.' So the controversy whether the learned Munsiff exercised his inherent power under Section 151 C.P.C., or he exercised his powers under Rules 1 and 2 of Order 39, vanishes. It is sufficiently clear that the learned Munsiff passed the impugned order under Section 151, C.P.C. Learned counsel for the defdt. opp. party, however had no submission that the revision is incompetent against an order passed under inherent power of the Court.

4. This leads us to the question whether the learned Munsiff was wrong in exercising his inherent power under Section 151, C.P.C. Learned counsel for the defdt-pelitioners relied on S. M. R. & O. Mills v. Hindustan Motor Ltd. AIR 1973 Gauhati 120 wherein learned single Judge, Baharul Islam (as he then, was) found 'it is settled law that Section 151 cannot be invoked when there are other provisions in the Code.' In that case an order was passed by the Court below regarding a plea raised on behalf of the defence by an application after in situation of the suit regarding lack of territorial jurisdiction of the Court, Despite there being clear procedure in the C.P.C. regarding raising of such a plea and disposal thereof, the learned Court below entertained the application raising the plea and disposed of it by exercise of its inherent power as against the provisions for the due procedure. Learned counsel also relied on Chou Khanybag Tea Company v. Prabhu Dayal reported in AIR 1979 Gauhati 37 wherein the learned Chief Justice, M. Sadananda Swamy held that the Court cannot resort to its inherent powers under Section 151 for setting aside dismissal of suit as Order 9, Rule 9 provides for the same. The ratio, therefore, of this case is, that where there are provisions for dealing with certain matters in the Code, resort to the inherent powers of the Court overriding those provisions is prohibited. In this connection reliance was also placed by the learned counsel on Ram Karan Das v. Bhagawan Das, AIR 1965 SC 1144. There it was ruled that the inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. The learned Judge of the Supreme Court found in that case that Rule 3 of Order 37 expressly gives power to a Court to set aside a decree passed under the provisions of that order and that, therefore, if a case does not come within the provisions of that rule, there is no scope to resort to Section 151 for setting aside a decree,

5. In the instant case it has to be found whether the impugned order could be passed by the learned Munsiff under Section 151, C.P.C. Sub-section (2) of Section 80 C.P.C. provides that a suit

to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purporting to be done by such public officer in his official capacity may be instituted with the leave of the Court without serving any notice as required by Sub-section (1) of Section 80, C.P.C. But it is provided further that the Court shall not grant relief in the suit interim or otherwise, except after giving to the Government or public officer as the case may be a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. The proviso is that the Court shall, if it is satisfied after hearing the parties that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirement of Sub-section (1). It is, therefore, found that those provisions are an exception to the provisions of Sub-section (1) of Section 80 C.P.C. in circumstances warranting urgent or immediate relief to be given to the plaintiff. This view, apart from the express wordings of Subsection (2), is further strengthened by the proviso to Sub-section (2). The clear mandate couched in these provisions is that if an urgent or immediate relief has to be given to the plaintiff the provisions of Sub-section (1) of Section 80, C.P.C. can be presently dispensed with; but if after hearing both parties the Court comes to the finding that no urgent or immediate relief need be granted in the suit, the plaint will be returned for compliance with the requirements of Sub-section (1). It is, therefore, found that even in the matter of an urgent or immediate relief interim or otherwise the court cannot dispense with giving an opportunity of showing cause in respect of the relief prayed for in the suit to the other party. The provision is mandatory and it cannot be bypassed inasmuch as the urgency/immediacy of the relief, interim or otherwise, are sufficiently dealt with under the provisions. The learned Munsiff records in his impugned order 'if only show cause notice is issued the learned counsel to the plaintiff-petitioner argues the defendant would frustrate the object of the suit by implementing the impugned order and in that event the justice would be helpless spectator and the Court's process would be futile. Considering the compelling circumstances I am inclined to exercise the inherent power under

Section 151 C.P.C. in issuing ex parte interim injunction.' Therefore, it is quite clear that the learned Munsiff found that the relief asked for by the plaintiff was urgent and/or immedidate But the provisions of Sub-section (2) are clear and a situation like the present one comes within the purview of these provisions. The learned Munsitf had sufficient scope to deal with the matter under Sub-section (2) of Section 80, C.P.C. This being so he had no reason to travel beyond these provisions and invoke the provisions of Section 151 C.P.C. in order to defeat the provisions and their purpose under Sub-section (2) of Section 80, C.P.C. Moreover, it is found that the impugned order of transfer was received by the plaintiff on 3-10-81 and he instituted the suit on 20-10-81 after a gap of more than two weeks. The impugned order of temporary injunction was passed on 20-10-81 itself. ' It, therefore, becomes dubious as to whether there was so-much urgency or immediacy for passing the order as found by the learned Munsiff. Besides he did not record anything as to the injury that would befall the plaintiff had such an order been withheld for the time that would be required for complying with the provisions of Sub-section (2) of Section 80 C.P.C. except that the object of the suit would be frustrated by the defendants implementing the order of transfer.

6. It is, therefore, found that the impugned order was beyond jurisdiction of the learned Munsiff having regard to the non-compliance of the provisions of Sub-section (2) of Section 80, C.P.C. and to the learned Munsiff exercising the inherent powers against the clear provisions of law.

7. The result is that the petition is allowed. The impugned order of ad interim injunction is set aside. The rule is made absolute. There will be no order as to costs.


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