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Thimmayya Vs. M.B. Sadasivappa and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberMisc. Appeal No. 64 of 1951-52
Judge
Reported inAIR1952Kant76; AIR1952Mys76
ActsCode of Civil Procedure (CPC), 1908 - Sections 94 and 151 - Order 39, Rule 1; Code of Civil Procedure (CPC), 1882 - Sections 492 and 499
AppellantThimmayya
RespondentM.B. Sadasivappa and anr.
Appellant AdvocateM. Venkatesha Rao, Adv.
Respondent AdvocateB.R.L. Iyengar, Adv.
Excerpt:
.....an application to sue as pauper - the court ruled that in the context of the case, an order for temporary injunction could not be passed under section 94(c) and order 39 of the civil procedure code, 1908. (b) the court held that an appeal is not maintainable, if it is against an order passed in the exercise of inherent powers under section 151 of the civil procedure code, 1908. - karnataka state minorities commission act, 1994 sections 4(3), (4) & 18(2)(b) & karnataka state minorities commission rules, 2000, rule 4: [p.d. dinakaran, c.j. & v.g. sabhahit, j] member nominated to minorities commission omission to make provisions by framing rule, for payment of salary held, when the act provides for payment of salary to person nominated as member, he cannot be denied salary merely.....1. this is an appeal against an order by which a previous order of temporary injunction was vacated. both orders were passed in the course of proceedings relating to the application of the appellant for permission to sue in forma pauperis. there is no order as yet for the case being registered as a suit.2. two questions arise for consideration viz., whether at this stage an order of temporary injunction can be made at all and if so, the provision under which it can be passed.the power to grant temporary injunction is conferred by section 94, c.p.c., which states:'in order to prevent the ends of justice from being defeated, the court may, if it is so prescribed. ... (c) grant a temporary injunction....'the words 'if it is so prescribed' imply that the exercise if not the existence of power.....
Judgment:

1. This is an appeal against an order by which a previous order of temporary injunction was vacated. Both orders were passed in the course of proceedings relating to the application of the appellant for permission to sue in forma pauperis. There is no order as yet for the case being registered as a suit.

2. Two questions arise for consideration viz., whether at this stage an order of temporary injunction can be made at all and if so, the provision under which it can be passed.

The power to grant temporary injunction is conferred by Section 94, C.P.C., which states:

'In order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed. ... (c) grant a temporary injunction....'

The words 'if it is so prescribed' imply that the exercise if not the existence of power is conditioned upon a provision being available for the same. The circumstances under which an order of temporary injunction can be passed are set forth in Order 39 and according to the words employed therein, the order is possible only if there is a 'suit.' Since permission has not been granted to the appellant to sue as a pauper, it cannot be said there is a suit pending between the parties.

In '11 Mys C C R 90', while considering the correctness of an order on an application for attachment before judgment a Division Bench of this Court observed :

'Neither Section 492 nor Section 499 of the old Code corresponding to Order 39, C.P.C., can apply because as yet there is no suit but only an application for leave to sue as a pauper.'

The words in Order 39 do not entitle the appellant to seek an order at present whatever the merits of the claim may be.

Learned counsel for the appellant cited in DHANESKWAR NATH v. GHANASHYM DHAR' : AIR1940All185 , to show that temporary injunction may be granted in exercise of the inherent powers of the Court. It is doubtful if inherent powers can be invoked when there are specific provisions concerning a particular matter. The Madras High Court has in 'VARADA CHARLU V. NARASIMHA CHARLU' : AIR1926Mad258 and 'AYYAMPERUMAL v. MATHU SWAMI' : AIR1927Mad687 held that injunction cannot be granted except in case coming under the provisions of the Code. Bee also 'KARUP-PAYYA NADAR v. PONNUSWAMI NADAR' AIR 1933 Mad 500 (2).

3. In 'DHANESHWAR NATH v. GHANASHYM DHAR', AIR 1910 All 183, relied upon by appellant is dissented from in 'HEMENDRALAL v. INDO SWISS TRADING CO. LTD.', AIR 1945 Pat 483 where it is clearly stated: 'It is not open to a Court to grant injunction in exercise of its inherent power under Section 151.' In view of this and the observation in '11 Mys C C R 90, with which we agree, the application is not maintainable.

Even otherwise, the appeal is not competent asan appeal does not He against an order passed inthe exercise of inherent powers. The order is onepassed in the exercise of discretion. In our opinion this is not a fit case in which the appeal needbe treated as a revision petition and the correctness of the order of the lower Court examined.The appeal is dismissed. Parties will bear theirown costs.

4. Appeal dismissed.


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