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Bai Atrani Vs. Deepsing Baria - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 43 of 1915
Judge
Reported inAIR1915Bom269; (1915)17BOMLR1097
AppellantBai Atrani
RespondentDeepsing Baria
Excerpt:
civil procedure code (act v of 1908), section 115-revisional jurisdiction-high court-order granting temporary injunction-case-bombay regulation ii of 1827, section 5-high courts' act (24 & 25 vic. c. 104), section 9-general repealing act (xii of 1873).;pending a suit, the trial court at first gave a temporary injunction, but later on dissolved it. on appeal, the district judge granted the temporary injunction restraining the defendant from adopting pending the decision of the suit. the defendant having applied to the high court against the order, a preliminary objection was raised that the application was not competent under section 115 of the civil procedure code:-;overruling the objection, (1) that the application to the high court against the order granting the temporary injunction..........be the son, or at least the dasiputra, of a certain deceased thakor; with his plaint the plaintiff presented an application praying for an injunction against the thakor's senior widow, restraining her from making an adoption pending the decision of his status. the learned subordinate judge at first granted a temporary injunction against the widow, but afterwards, for reasons with which we are not at present concerned, he dissolved it. the plaintiff appealed to the district judge, who has granted a temporary injunction restraining the widow from adopting pending the decision of this suit. this application is made in order that the district judge's injunction should be revised by this court.2. mr. coyaji for the plaintiff takes the preliminary point that the application is not competent.....
Judgment:

Batchelor, J.

1. This application arises in the course of a pending suit in which the plaintiff claims to be the son, or at least the dasiputra, of a certain deceased Thakor; with his plaint the plaintiff presented an application praying for an injunction against the Thakor's senior widow, restraining her from making an adoption pending the decision of his status. The learned Subordinate Judge at first granted a temporary injunction against the widow, but afterwards, for reasons with which we are not at present concerned, he dissolved it. The plaintiff appealed to the District Judge, who has granted a temporary injunction restraining the widow from adopting pending the decision of this suit. This application is made in order that the District Judge's injunction should be revised by this Court.

2. Mr. Coyaji for the plaintiff takes the preliminary point that the application is not competent under Section 115 of the Civil Procedure Code, and he relies mainly upon such cases as Chattar Singh v. Lekhraj Singh I.L.R. (1888) All. 293, In re Nizam of Hyderabad I.L.R. (1886) Mad. 256 and Farid Ahmad v. Dulari Bibi I.L.R. (1884) All. 233, where the Courts have held that there is no jurisdiction under Section 115 to revise an interlocutory order when there is an appeal from the final decree thereafter to be passed. These Allahabad cases, were, however, considered in Dhapi v. Ram Pershad I.L.R. (1887) Cal. 768, where the learned Judges of the Calcutta High Court took a different view, and, having regard to the comprehensiveness of the word 'case' occurring in Section 115 and to the possibility of grave injustice which might result from the adoption of the other principle, decided that under Section 115 of the Code the Court had jurisdiction to revise an interlocutory order. This decision was considered by Sir Charles Sargent and Mr. Justice Candy in Motilal Kashibhai v. Nana I.L.R. (1892) 18 Bom. 35 which took a course between the two extremes, and which admittedly lays down the law applicable in this Presidency to the present point. The learned Chief Justice concedes for the purpose of argument that the word 'case' may be wide enough to include an interlocutory order, but he points out that a word of such general import must be controlled by the purpose with which the section was framed. That purpose, he observes, was clearly to enable a party to obtain the rectification of a decision or order of a lower Court by the High Court when there would otherwise be no remedy. In the facts then before the Court a remedy was supplied by Section 591 of the Code of 1882, and on that ground it was decided that the revisional jurisdiction of the Court could not successfully be invoked. Mr. Rao contends that this decision in Motilal's case is in favour of the present petitioner, inasmuch as in the circumstances of this application the applicant has no other remedy available to him, and may, if this petition is summarily dismissed, be exposed to injustice, otherwise incapable of remedy. It appears to me that this contention should prevail.

3. I make no attempt to fasten any formal definition upon the word 'case' which occurs in Section 115. I note only that, as was held in Motilal Kashibai v. Nana it is a word of wide or comprehensive import and clearly covers a far larger area than would be covered by such a word as 'suit' or 'appeal'. There is, therefore, in my opinion, nothing incongruous or repugnant in holding that the word 'case' may cover such an order as we have here, restraining a Hindu widow from adopting. I am further of opinion that inasmuch as Section 115 is merely an empowering section granting certain jurisdiction to the High Court, and as the use or exercise of that jurisdiction will, within the prescribed limits, be regulated by the discretion of the High Court, the section ought to receive rather a liberal than a narrow interpretation.

4. Reverting now to Sir Charles Sargent's decision in Motilal's case, it is necessary to say that the present Section 115 of our Code is a reproduction of Section 622 of the Code of 1882 and that the old Section 591 reappears without alteration in the present Section 105. We must, therefore, in accordance with the Chief Justice's ruling, enquire whether in this particular case a remedy against the order of injunction was supplied to the present petitioner by Section 105 of the Code. To understand Section 105, reference first must be made to Section 104, which specifies the orders from which a first appeal is permitted; while Section 105, as the marginal description shows, refers to 'other orders,' Under Clause (i) of Sub-section 1 of Section 104 it is enacted that an appeal is allowed from any order made under rules from which an appeal is expressly allowed by rules. To ascertain which are the Orders here referred to, we must turn to Order. XLIII, Rule 1, which describes the Orders from which an appeal lies. Clause (r) of this rule mentions an order under Rules 1 and 2 of Order XXXIX, and these Rules provide for the grant of a temporary injunction in such a case as that now before us. It follows, therefore, that the District Judge's order falls within the scope of Section 104 of the Code and is, therefore, in my opinion, excluded from the scope of Section 105. If that is so, then it clearly cannot be said that the petitioner had against this order a remedy supplied to him by Section 105. Mr. Coyaji answers that there was, under Section 104, a single appeal from the original order made by the Subordinate Judge; but that order was in the petitioner's favour, and, unless this application can now be considered, the petitioner has no remedy against the order of which alone she complains. And it seems to ma impossible to say that the injury caused by the order, if it is wrong, may not be irremediable; for the petitioner, or the boy chosen for adoption, may well die long before this litigation reaches its end. That being so, I think that, consistently with the ruling in Motilal v. Nana, we ought to hold that this application is competent under Section 115.

5. I think also that Mr. Rao's alternative contention must be conceded that the application is in any event within the extraordinary jurisdiction vested in this Court. That jurisdiction is derived from Regulation II of 1827 which empowered the Sadar Diwanee Adalut to exercise general superintendence over all Subordinate Courts. By Section 9 of the High Court's Act the jurisdiction thus originally granted to the Sadar Diwanee Adalut was transferred to the High Court when that Court was constituted in 1861. It is true that the Regulation of 1827 was repealed in 1873 by Act XII of that year. But the third paragraph of the first section of the Repealing Act provides that: 'It shall not affect any established jurisdiction, form or procedure or existing usage, custom or privilege, notwithstanding that the same respectively may have been in any manner affirmed, recognized or derived, by, in, or from, any enactment hereby repealed.' It follows, I think, that the jurisdiction established in the Sadar Diwanee Adalut in 1827 and in the High Court in 1861 was not affected by the repeal of the Regulation in 1873.

6. On these grounds I am of opinion that this Court has jurisdiction to entertain the application which, therefore, should be considered on its merits.

7. The only remaining question is, whether the injunction, which the learned District Judge granted to the plaintiff, can be allowed to stand. I think not. We have had a learned and exhaustive argument, and in the course of it it has been admitted at the Bar that there is no instance in the Reports where a Court has restrained a Hindu widow from adopting to her deceased husband. I will not say that the Court has no jurisdiction to grant such an injunction in any conceivable circumstances, but I think I may safely say that in the circumstances now before us there is no justification for such an order. The order is made in a suit which involves a claim to a very large estate, and it is extremely probable that the litigation may ultimately find its way to the Privy Council in which event it would be a sanguine estimate to suppose that the controversy will be terminated within the next eight or ten years. Yet throughout that period this widow will be debarred from adopting, if the injunction is to be maintained. During that period it is, as I have said, possible that the widow may die. It is possible also that the boy selected for adoption and, as we are told, approved by the Collector, may also die. If things are thus left for the indefinite period of the duration of this litigation, it appears to me probable that the widow may never be able to exercise her inherent right of benefiting her deceased husband's soul by making this adoption to him. In the meanwhile the estate, which is in the hands of the Collector, is in no danger. On the other hand, I cannot discern any real or grave inconvenience to which the plaintiff will be put by discharging the injunction. The plaintiff either is or is not the legally recognized son of the Thakor. If ha is not, he cannot suffer from the adoption. If he is, he is equally saved from prejudice, because the adoption would in that event be void.

8. I think that all considerations, not only of present convenience but of present justice, are so overwhelmingly in favour of the widow that we ought, in our extraordinary jurisdiction, to discharge the order of the learned Judge below. In my judgment, therefore, the injunction should be dissolved and the widow should have the costs of this application throughout.

Hayward, J.

9. I concur. The question briefly is, whether an order granting a temporary injunction on first appeal is a 'case decided in which no appeal lies' within the meaning, of Section 115 of the Civil Procedure Code.

10. Now, it seems to me clear that such an order must be held to be a 'case decided' in view of the very wide meaning ordinarily attachable to that word.

11. Next such an order is an order passed under Clause (i) of Sub-section 1 of Section 104, and no appeal lies from such an order by virtue of Sub-section 2 of Section 104. But it must further be considered, whether such an order is one affecting the decision of the suit in which it was made and so an order which could be questioned on the final appeal from the decree under Section 105.

12. It appears to me it is not. It stands by itself. It is an order having force temporarily only pending the suit. It cannot be said to be an order affecting the decision of the suit and could, therefore, not be called in question upon final appeal from the decree under Section 105. For these reasons it seems to me that such an order must be held to be a 'case decided in which no appeal lies' within the meaning of Section 115 of the Civil Procedure Code.

13. I also concur that the order would be open to consideration under the still wider provisions of Section 5 of Reg. II of 1827, continued in force by virtue of Section 9 of the High Court's Act of 1861. Those provisions have been saved from repeal by the operative sections of the General Repealing Act (XII of 1873). This has been indicated in the decisions holding that proceedings under the Mamlatdars Courts' Act are subject to the supervision of this Court, a jurisdiction which has been impliedly recognized in Section 24 of the Mamlatdars Courts' Act of 1906.

14. It seems to me, therefore, on both these grounds that this application is open to consideration by this Court.


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