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Bindeshwar Narayan Singh and ors. Vs. Managing Committee, Shri Sundarmal Hindi High School and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberM.A. (F) No. 17 of 1981 and Misc. Case No. 16 of 1981
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 1 - Order 41, Rule 33; Specific Relief Act, 1963 - Sections 37
AppellantBindeshwar Narayan Singh and ors.
RespondentManaging Committee, Shri Sundarmal Hindi High School and ors.
Appellant AdvocateP.G. Baruah, D. Goswami, H. Das and M. Sharma, Advs.
Respondent AdvocateB. Sarma and N.C. Das, Advs.
DispositionAppeal dismissed
Excerpt:
.....more damnified by the injunction being granted or the plaintiff by it being withheld. all that was necessary was that the court should be satisfied that the claim was not frivolous or vexatious, i. they should refuse to grant an injunction unless a fairly good prima facie case is made out for interference with the internal affairs of educational institutions......nos. 6 to 13 from receiving any grant-in-aid from defendant no. 1(state of assam) in the name of shrisundarmal hindi m. e. school and alsorestraining the defendant no. 1 fromsanctioning any grant in that name. misc. case no. 16/81 is the application under order 41, rule 5 and/or section 151, c.p.c., filed bycontesting defendants praying for stay ofoperation of the aforesaid impugnedjudgment. they are heard and. disposedof together. 2. on 28-4-79 the managing committee of shri sundarmal hindi high school, sibsagar with 13 members thereof instituted title suit no. 33 of 1979 (now pending) against the state of assam, four of its officials, and the managing committee of rajakiya sundarmal hindi madhyamik bidyalaya (provincialised sundarmal hindi m.e. school) with its headmaster and.....
Judgment:

Saikia, J.

1. The M.A. (F) No, 17 of 1981 is from the judgment dated 13-3-81 of the Assistant District Judge, Sibsagar, Jorhat in Misc. Case No. 18 of 1981, arising out of Title Suit No. 33 of 1979, issuing temporary injunction restraining the defendants Nos. 6 to 13 from receiving any grant-in-aid from defendant No. 1

(State of Assam) in the name of Shri

Sundarmal Hindi M. E. School and also

restraining the defendant No. 1 from

sanctioning any grant in that name. Misc.

Case No. 16/81 is the application under Order 41, Rule 5 and/or Section 151, C.P.C., filed by

contesting defendants praying for stay of

operation of the aforesaid impugned

judgment. They are heard and. disposed

of together.

2. On 28-4-79 the Managing Committee of Shri Sundarmal Hindi High School, Sibsagar with 13 members thereof instituted Title Suit No. 33 of 1979 (now pending) against the State of Assam, four of its officials, and the Managing Committee of Rajakiya Sundarmal Hindi Madhyamik Bidyalaya (Provincialised Sundarmal Hindi M.E. School) with its Headmaster and Secretary, Shri B.N. Singh (defendant No. 6), and other members.

3. The following is the plaint case. The plaintiff No. 1 is the Managing Committee of Shri Sundarmal Hindi High School, situate in the premises of Shri Marwari Panchayat at A. T. Road, Sibsagar. The Marwari Panchayat was running one M.E. School named Shri Shiv Shankar Vidyalaya in its premises and on or about 28-3-61 it was upgraded and renamed as Sundarmal Vidyalaya after its donor. Later it was bifurcated into (1) Shri Sundarmal Hindi M. E. School, and (2) Shri Sundarmal Hindi English High School in 1975. The Sundarmal Hindi M. E. School received Government grant-in-aid under the deficit system while the Sundarmal Hindi English High School received ad hoc Government grant. The managements of the two institutions by resolutions dated 8-7-77 or so decided to amalgamate once again both the schools; and the Government of Assam approved the amalgamation and withdrew its grants-in-aid from both the institutions, but continued the recognition on condition that the services of the teachers were fully, guaranteed. Since then the plaintiff Managing Committee has been running the amalgamated School, namely, Shri Sundarmal Hindi High School, as a purely private institution giving benefits to the teachers as under the Education Department, Government of Assam. The defendant No. 6, Shri B.N, Singh, was the Headmaster and the defendants Nos. 7, 8, 9 and 10 were Assistant Teachers of the erstwhile Sundarmal M. E. School; and after amalgamation the defendant No. 6 was retained in the amalgamated High School as teacher in charge

of the M.E. Section as per instructions of the Government, and defendants 7, 8, 9 and 10 were retained as Assistant Teachers, protecting their benefits. The Managing Committee later dispensed with the services of defendant No. 6, Shri B. N. Singh, whereafter he served in Sonari Hindi High School, while defendants 7 to 10 continued in the amalgamated School.

4. The defendant No. 3, namely, the Additional Director of Public Instructions, Assam, by telegraphic message dated 31-3-79 intimated the Inspector of Schools, Sibsagar Circle, Jorhat (respondent No. 4) to arrange payment of salaries of staff of Sundarmal Hindi M.E. School, Sibsagar as sanctioned under his letter No. P.C. 10/77/6328-87 dated 1-12-1977, and copies of the telegram were despatched for .necessary action. As defendant No. 6 was the Headmaster and Secretary of erstwhile Shri Sundarmal Hindi M.E. School, Sibsagar, he managed to receive a copy of the above communication and promptly taking defendants 7 to 10 with him started a new School named 'Rajakiya Sundarmal Hindi Madhyamik Vidyalaya' (Provincialised Sundarmal Hindi M.E. School) with effect from 5-4-79 in hired premises at B. G. Road, Sibsagar Town; and he has been trying to withdraw the granted sum of Rs. 37,759.05 P. which amount was already drawn by the Deputy Inspector of Schools in charge, Sibsagar as salaries of teachers of Shri Sundarmal Hindi M.E. School from the date of its amalgamation that is 1-10-77 till 28-2-79. It has accordingly been prayed that the defendants 6 to 10 be declared disentitled to receive the above amount as salaries of teacher of the former Sundarmal Hindi M. E, School and that defendants Nos. 1 to 5 not competent to make such payment to defendants 6 to 10 and that defendants 6 to 13 have no right to start any institution in the name of Shri Sundarmal Hindi M. E- School involving its donor's name and reputation.

5. The plaintiffs filed petition No. 378 dated 7-3-81 in Misc. Case No. 18/81 for a temporary injunction restraining the defendants Nos, 5 to 13 from receiving any or further grant for their newly started school and for restraining defendant No. 1, the State of Assam, from payr ing any such grant.

6. The case of the aggrieved defendants-appellants petitioners as can be gathered from their stay application and

the appeal, is that the plaintiff averment that defendants' receiving the grant-in-aid is causing or likely to cause serious irreparable injuries to plaintiff is not correct; that the Government letter dated 10-8-77 regarding withdrawal of recurring grant was cancelled by order datad 30-3-78; that defendant No. 6 did not receive any order of dismissal; that Sundarmal Hindi M.E. School refused to accept any grant; that the suit amount of Rs. 37,759.05 P. was already drawn by the authority as salaries to the teachers of Sundarmal M.E. School, and not as grant-in-aid; that the Government is agreeing to release further grants in the name of the Sundarmal Hindi M.E. School which has been provincialised; and that the teachers have been facing acute financial hardship due to the injunction which has caused them irreparable injury.

7. The learned Assistant District Judge ordered issue of temporary injunction as stated above. Hence the first appeal and the Misc. Case.

8. Mr. P.G. Baruah, the learned counsel appearing for the defendants (Nos. 6 to 10) appellants-petitioners, submits, inter alia, that the learned court below did not take into consideration the fact that the amount was sanctioned tor arrear salaries of teachers of Sundarmal M.E. School, which has been provincialised and the defendant No. 6 appellant-petitioner is the Headmaster and Secretary of the School; that the School was never amalgamated with Sundarmal High School; that the balance of convenience is in favour of the contesting defendants-appellants-petitioners inasmuch as without pay they will have to starve; and that it is they and not the plaintiffs-respondents-opposite parties who will suffer irreparable loss if the grant ceases to come; and that the learned court below erred in granting the injunction and contrary to the provision of Section 41(j) of the Specific Relief Act, when the plaintiff has no personal interest in the matter.

9. Mr. B. Sarma, the learned counsel appearing for the plaintiffs-respondents-opposite parties, replies that the grant having been sanctioned in the name of the teachers of the Sundarmal M.E. School which has since been amalgamated with the Sundarmal High School, which is being run as a purely private institution, the contesting defendants-appellants-petitioners have no right to start a new school in the name of Sundarmal M.E. School which includes the name of its

donor, Shri Sundarmal; and that even if they start a new School they have no right to appropriate the name of the donor and to receive the grant sanctioned for the teachers of a school no longer in separate existence, and for a period prior to the establishment of the new school, or to continue to receive such recurring grants.

10. It is evident that Sundarmal High School is in existence with its M.E. Section into which Sundarmal M.E. School was, according to plaintiffs, amalgamated as far back as in Oct. 1977- Prior to such amalgamation the Sundarmal M.E. School used to receive ad hoc Government grant, which was withdrawn, but was restored, according to the defendants. The grant in dispute amounting to Rs. 37,759.05 P. is for arrear salaries for the period from 1-10-77 to 28-2-79. According to the plaintiffs, the new school was established from 5-4-79 in a separate rented house which is different from the Marwari Panchayat premises where earlier the Sundarmal M.E. School was housed and the present Sundarmal High School is accommodated. The defendants say that the M.E. School was provincialised. This may create doubt as to whether the defendants school is the same Sundarmal Hindi M.E. School, or a breakaway school and is trying to appropriate the grant sanctioned in the name of the erstwhile Sundarmal M. E, School for a period prior to the new school coming into being. If such grant is received by the defendants concerned, it has to be seen whether the reputation of the donor, namely, Sundarmal, of the erstwhile Sundarmal M.E. School and the present Sundarmal High School will be affected or not. There appears to be, therefore, a serious question to go to trial, If the grant is appropriated by the defendants the management, assets and liabilities of the Sundarmal M.E. School may be involved as per the Provincilisation Act of 1977. This may have to be considered in light of the fact that the Sundarmal High School is being run as a purely private institution not taking any Government grant, but protecting the benefits of the erstwhile M, E. School teachers. If the grant is appropriated and in the suit it is decided that the grant was made for the erstwhile Sundarmal M.E. School, which no longer exists separately, then the question of refunding the amount to the Government as per Government financial rules, may arise and may lead to serious complications. The

balance of convenience is therefore in favour of the plaintiffs.

11. On the other hand if the aggrieved defendants-appellants-petitioners are found to be entitled to the grant, their temporary deprivation of the same due to the injunction, and possible discontinuation of the same as a result shall also have to be considered.

12. The circumstances under which temporary injunction may be granted have by now been more or less crystallised. Where in any suit it is proved by affidavit or otherwise that any property in dispute is in danger of being wasted, damaged, or alienated by any party to the suit, or to restrain the defendant for committing injury of any kind relating to the same property or right, the court may grant a temporary injunction at its discretion on such terms as to the duration of the injunction, and subject to condition as the court thinks fit. Where the defendant has committed or is threatening what the plaintiff alleges to be a trespass or a wrong, the plaintiff may ask the court to direct the subject matter of the dispute to be maintained in status quo till the issue between the parties has been determined. Where the sole object of a suit is protection by means of an injunction, to withhold the temporary injunction may practically decide the cause in favour of the defendant, without giving the plaintiff an opportunity to establish the truth of the case made by his plaint. It is true that the court will not so interfere if it thinks that there is no real question between the parties, but assuming that there is a substantial question to be decided, it will preserve the property until such question can be regularly disposed of. Where a perpetual injunction is sued for and the plaintiff applies for a temporary injunction, the court should grant the temporary injunction if the effect of not granting such an injunction will be to deprive the plaintiff for ever of the right claimed by him in the suit. The Court should be satisfied that the matter is emergent and its immediate assistance is required before it will issue a temporary injunction, for there is a possibility of irreparable injury being caused to the party. If an injunction is prayed for either before or at or after the hearing of any case or matter, to prevent any threatened or apprehended waste or trespass, such an injunction may be granted if the Court shall think fit and proper. It may not by itself be a sufficient reason for the issue of a tern-

porary injunction that the suit would be infructuous if it did not issue, but there may be causes where refusal to grant temporary injunction pending disposal of the suit would make the success at the close of the suit but a barren and worthless victory.

13. In exercising its jurisdiction by way of interlocutory injunction the Court is to act upon the principle of preventing irreparable injury. In a case where serious injury is likely to arise from the act complained of, the Court will interfere before the hearing to restrain the breach, but if the contract or covenant is obscure or the breach doubtful and no irreparable damage can arise to the plaintiff then the question resolves itself into one of comparative injury, whether the defendant will be more damnified by the injunction being granted or the plaintiff by it being withheld.

14. Where a doubt exists as to the right specially when an injunction will cause great hardship on the defendant, an interlocutory injunction may be refused on the defendant's undertaking to keep an account in which case the plaintiff is entitled to a formal undertaking.

15. In American Cyanamid Co. v. 'Ethicon Limited, (1975) 1 All ER 504 principles have been stated as under:--

'There was no rule of law that the Court was precluded from considering whether, on balance of convenience, an interlocutory injunction should be granted unless the plaintiff succeeded in establishing a prima facie case or a probability that he would be successful at the trial of the action. All that was necessary was that the court should be satisfied that the claim was not frivolous or vexatious, i.e. that there was a serious question to be tried.'

16. The power of the appellate court in the matter of injunction is rather circumscribed. The appellate Court would be slow to interfere with the exercise of discretion and would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not, justify interference with the trial Court's exercise of discretion. If it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate Court to interfere with the trial Court's exercise of discretion (AIR 1967 SC 249). Where the trial Court had not exercised its discretion capriciously or arbitrarily, no case for interference would be made out (AIR 1969 SC 938). Only if the discretion is not exercised by the trial Court in the spirit of the statute or fairly or honestly or according to the rules of reason and justice, the order passed by the lower Court can be reversed by the superior Court (1977-2 SCC 457): (AIR 1977 SC 747).

17. While emphasising the above principles it should not be understood that the trial Court's decision in the matter of injunction should be treated as final, It is always subject to scruitiny of the higher courts as outlined above.

18. In Varanasaya Sanskrit Vishwavidyalaya v. Dr. Rajkishore Tripathi, AIR 1977 SC 615, on consideration of Order 39, Rules 1 and 2, Section 151 of the Civil P.C. and Section 37 of the Specific Relief Act, it was held that in the matter touching either the discipline or the administration of the internal affairs of a University, Courts should be most reluctant to interfere. They should refuse to grant an injunction unless a fairly good prima facie case is made out for interference with the internal affairs of educational institutions.

19. In the instant case, however, we are not concerned directly with the management and internal affairs of an educational institution; inasmuch as it relates to arrears of salaries pertaining to a period prior to the alleged establishment of the defendants' institution, and involving the name and reputation of the school's donor.

20. In United Commercial Bank v. Bank of India, (1981) 2 SCC 766: (AIR 1981 SC 1426), it was held that the Court was not justified in issuing the injunction in a transaction between bankers by prejudging the whole issue and restraining one banker from claiming refund from another bank. The appellate Court has to be equally cautious not to prejudge the whole issue. It cannot be said that the trial Court prejudged the issue in the instant case.

21. While deciding the injunction appeal it would not be proper to make observations on merits of the case which may prejudice the case of either of the

parties. On consideration of the facts and circumstances the learned trial Court in passing the impugned order has held that the plaintiffs had a substantial issue to go to trial and thus adequately considered the question of prima facie case. He also considered the balance of convenience and the question of irreparable injury. He considered that the plaintiff's fair name might be tarnished by the defendants' receiving the grant and thus they might suffer irreparable loss. Personal interest, as envisaged in Section 41(j) of the Specific Relief Act is there. It cannot be said that he exercised his jurisdiction capriciously or arbitrarily. We find no infirmity in the impugned order and accordingly dismiss the appeal and the miscellaneous case and discharge the Rule, but without costs.

D. Pathak, Acting C.J.

I agree.


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