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E. Managamma Vs. A. Muniswamy Naidu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. Nos. 1934 of 1978 and 4212 of 1979
Judge
Reported inAIR1983AP128
ActsCode of Civil Procedure (CPC), 1908 - Order 43, Rule 1 - Order 39, Rules 1 and 4
AppellantE. Managamma
RespondentA. Muniswamy Naidu
Appellant AdvocateE. Subrahmanyam, Adv.
Respondent AdvocateI. Venkataramana, Adv.
Excerpt:
civil - ex parte injunction - order 39 rules 1 and 4 and order 43 rule 1 of code of civil procedure, 1908 - whether defendant-respondent file appeal under order 43 rule 1 (r) against order of ex parte injunction made by lower court under order 39 rule 1 against him - defendant filed appeal before appellate court and got ex parte injunction suspended - appeal against such order - high court observed that defendant was only exercising right granted by statute under order 43 rule 1 (r) - exercise of such statutory right cannot be defeated on account of his conduct - high court upheld order passed by appellate court. - - 39 as well as from an order made under r. but what appears ex facie to be so wholly unarguable is actually what was endorsed and accepted by a division bench of the.....p.a. choudary, j.1. c.r.p. no. 1934 of 1978 is referred to a division bench by narasinga rao, j., on the question whether a defendant -respondent, in an appeal under o. 43 r. 1 (r) of civil p.c. against an order of exparte injunction made by the lower court under o. 39, r.1 c.p.c against him. the answer to such a question so long as it remains unencumbered by the weight of judicial pronouncements can be expected reasonably to be simple and straight and in the affiramative order 39, c.p.c. deals with the subject of granting injunctions by the civil courts o. 39 r. 1 provides for granting of ex parte injunction without hearing the party sought to be affected thereby. the party which was injuncted by the passing of such an ex parte order is given a right to ask the court that granted such an.....
Judgment:

P.A. Choudary, J.

1. C.R.P. No. 1934 of 1978 is referred to a Division Bench by narasinga Rao, J., on the question whether a defendant -respondent, in an appeal under O. 43 R. 1 (r) of civil P.c. against an order of exparte injunction made by the lower Court under O. 39, R.1 C.P.C against him. The answer to such a question so long as it remains unencumbered by the weight of judicial pronouncements can be expected reasonably to be simple and straight and in the affiramative order 39, c.P.C. deals with the subject of granting injunctions by the civil courts O. 39 R. 1 provides for granting of ex parte injunction without hearing the party sought to be affected thereby. The party which was injuncted by the passing of such an ex parte order is given a right to ask the Court that granted such an order ot discharge vary or set aside that ex parte order of injunction on an application being made for that purpose, the Court after hearing both the parties makes a final order under R. 4 of O. 39, C.P.C. enumerates various orders from which an appeal lies Rule 1 (r) of O. 43 states that an appeal lies from among other orders under O. 39 from an order made under R. 1 of O. 39 as well as from an order made under R. 4 of O. 39 o. 43 R. 1 (r) reads thus:-

'O. 43, R. 1 ; Appeals from orders:-

'An appeal shall lie from the following orders under the provisions of S. 104 , namely..............

(r) an order under R. 1 R. 2 (R. 2A),R. 4 or R. 10 of O.XXXIX.'

Order 39, R. 1 reads thus:-

'1. Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or.

(b) that the defendant threatens or intends, to remove or dispose of his property with a view to defrauding his creditors.

(c) that the defendant threatends to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order a temporary injunction to restrain such Act, or make such other order for the purpose of staying and preventing the wasting, damaging, alination sale removal or disposition of the property (or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit) as the Court thinks fit, unitl the disposal of thesuit or until further orders'.

It is clear that under O. 43 R. 1 (r) the right of appeal given to the affected party is not only against a final order of injunction passed by the lower Court after hearing both the parties under R. 4 of O. 39 but also aginst an ex parte order of injunction passed by the lower Court under O. 39 R. 1 without hearing the affected party. Normal Judicial machinery for correction of ex parte orders is the original Court itself. But under the above provisions the injucted party can go to an appellate Court against an ex parte order even without first going before the original Court. So long as the statute has so willed the courts should give effect to that expression of the legislative will. Particularly in the case of remedy by way of an appeal. Even those who dispute everything cannot but accept the proposition that right of appeal is a creature of statute and can only be conferred by the provisions of a statute. That is so, because common law knows no appeals. It follows that all questions relating to appeals including the question of their very existence, scope and width of such a right should be desired and measured by the ambit of the relevant statutory provisions. Where an appeal is not provided for by a atatute, no right of appeal can exist. But where a statute so provides for such a right of appeal, such a right cannot be denied. In other words conferment of a right of appeal as much as its denial is a statutory function. In positively conferring and negatively denying right of appeal, it is the statute alone that governs. A perusal of O. 39 R. 1 read with the provisions of O. 43 R. 1 (r) from the above point of view makes it so overwhelmingly clear that O. 43 R. 1 (r) C.P.C. has conferred a right of appeal even against an ex parte order of injunction that can be passed by a lower Court under O. 39, R.1 A reading of O. 39 R. 4 read with O. 43, R. 1 shows that the right of appeal against a final order of injunction is in addition to and independent of the right of appeal given to a party against an ex parte order of injunction under O. 39 R. 1 if that were to be so according to the clear tenor of the provisions of the civil P.C. it should have been almost impossible for the counsel to contend contra and to the effect that no appeal lies under the Civil P.C. against an order of ex parte injunction passed by the lower Court under O. 39, R. 1 order 43 R. 1 (r) openly speaks of appeals being available not only against orders passed under R. 4 of O. 39 but even against the orders passed under R. 1 of O. 39 yet the counsel argued with enthusiasm that no appeal lies against an ex parte order. But it must be said that if the argument of the learned counsel for the petitioner is to be accepted and given effect to planly it would result in deletion of the words 'R. 1' occurring in O. 43, R.1 (r) obviously this operation cannot be undertaken by a Court of law. For the purpose of Interpretation of a statute the courts must accept the supremacy of the legislation. Amendments, deletions reviews and revisions of statutory provisions are all matters that fall outside the province of the court's normal jurisdiction. Those are generally matters for the legislature to look into. It follows that we should give effect to the plain words contained in O. 43, R. 1 (r) as they stand today, and unhesitatingly reject the argument advanced by the learned counsel for the petitioner. But what appears ex facie to be so wholly unarguable is actually what was endorsed and accepted by a Division Bench of the madras high Court and on which the learned counsel for the petitioner placed his entire reliance. That decision is the decision of a Division Bench of the madras High Court in Abdul Shukoor v. Umachander, AIR 1976 Mad 350 which held that no appeal lies under O. 43, R. 1 (r), C. P.C. against an ex parte order of injunction passed under O. 39 R. 1 C.P.C It must be readily admitted that this decision of the Madras High Court supports wholly the contention of the petitioner and cannot be explained away or distinguished. But with respect, we say its reasoning does not commend itself to us and we are therefore not prepared to follow that decision which in our opinion almost flies in the face of a statutory provision of the civil P.C. which is both clear and express. We, therefore regret our wholesale inability either to follow it or frankly even to appreciate its reasoning. The learned judges of the Madras High Court did not notice the fact that their judgment would involve the Court in the impermissible task of amending Cl. (R) of R. 1 of O. 43 to the extent it provides for a right of appeal against an ex parte order of injunction passed under O. 39, R. 1 C.P.C. By rejecting the availability of the right an ex parte order of injunction, the judgment of the Madras Bench reduces the number of statutory appeals available to an affected party under O. 43, R. 1 (r). That judgment drives the affected party to take the normal course of going to the original Court. The argument that appealed to the learned judges of the Madras High Court was that only a final order of injunction passed under O. 39 R. 4 C.P.C should be appealable, because that alone would be a decision. Even theoretically speaking, this reasoning of the Madras High Court cannot be accepted because inherently there is nothing in an order of injunction passed ex parte under O. 39 R. 1 to qualify itself to be a decision. In fact, O. 39, R. 1 provides for passing of an ex parte order and O. 43, R. 1 (r) makes an appeal against such an order available. In the context of O. 43 R. 1 (r). C.P.C. we cannot but observe that the statute treated even an ex parte order of injunction as a decision but at all events appealable. Where such a clear statutory provision makes an appeal available, it would not be open for the Court to deny or to limit that right of appeal only to orders passed after hearing of the parties dealing which there is a separate provision. Such a reasoning would render a part of O. 43 R. 1 (r) purposeless. We are unable to see even any logical basis for the madras Bench decision. Order 43 makes even the refusal to grant an order of injunction appealable. If so, we find no incongruity in legislature providing for an appeal even against an ex parte order of injunction. The statute can be taken to have well intended to provide this additional remedy by way of an appeal in additional remedy by way of an appeal in addition to the right of the party to go before the same Court and ask for the discharge of the ex parte injunction. But all this speculation is rendered strictly superfluous by the express provisions of O. 39, R. 1 and O. 43 R. 1 of C.P.C. Clear and precise legislative expression should end judicial speculation. In Shri Mandir sita Ramji v. Lt. Governor of Delhi : [1975]1SCR597 _ Mathew, J. Referred to and followed the well established rule of law declaring that where the legislature has spoken the Judges cannot afford to be wiser. We cannot then ask whyt the legislature did not satisfy itself with providing one appeal against final orders of injunction passed under O. 39 R. 4 what has been given by the legislature to the litigants by way of additional and mutiple remedies, cannot be taken away by the courts in the name of its interpretative power or function. In the whole decision of the Division Bench of the Madras High Court, we find no intelligible purpose being assigned to the deliberate Act of legislature inserting in cl. (R) of O. 43 R. 1 an express reference to an order passed under R. 1 of O. 39, C.P.C such a remedial provision cannot be called as so unjust as to subject to exception rule of interpretation. It is, therefore, difficult to agree with the madras decision and deny an express right of appeal given by the statute against an ex parte order of injunction.

2. But Mr. Subramanyam, the learned counsel for the petitioner, argued that in case we are not prepared to follow the above decision of the madras High Court, we should, acting in accordance with the rule laid down by a Full Bench of our High Court in subbarayudu v. State : AIR1955AP87 , refer this matter to a Full Bench. The learned counsel for the petitioner argued that according to subbarayudu's case, the abovesaid madras decision in Abdul Shukoor v. Umachander ( AIR 1976 Mad 350) (supra) binds us. In our opinion, subbarayudu's case does not make a decision of the madras High Court rendered some twenty years after our High Court was established binding on us. This argument of the learned counsel should, therefore, be rejected. It is no doubt true that a Full Bench of our High Court held in the abovementioned subbarayudu's case that the decisions rendered by the madras High Court prior to the formation of the Andhra High Court at Guntur, are binding on the Andhra High Court. The decision in the subbarayudu's case would have been helpful to the petitioner only if shukkor's case was rendered before 1954. As the abovementioned judgment of the madras high Court in shukoor's case (supra) was of the year 1976. Its binding authority clearly does not extend to the territories of Andhra state and does not bind this Court even under the above reasoning accepted in subbarayudu's case (supra). But Mr. Subramanyam says, that notwithstanding the fact that the above madras decision in shukkor's case was one made after the year 1954. Its ruling still binds us, because of the rolling back effect on us it makes of its declaration as to the existence of a long standing practice in the madras High Court denying appeals against order made under O. 39 1 C.P.C Mr. Subrahmanyam argued that this must be taken as a declaration of law as existing prior to 1954 and we should accordingly either accept that law of the Madras High Court or differ from it and refer this case to a full Bench we think this argument of the learned counsel is not correct. Under the rule in Subbarayudu's case : AIR1955AP87 (Fb), it only the law laid down by the madras High Court that is given the binding force of a precedent. Every Act of practice of the madras High Court is not sanctified by the subbarayudu's decision into a binding precedent. Shukkoor's case (AIR 1976 Mad 350) does not refer even to one decision where O. 43 r.1 (r) C.P.C was interpreted by the Madras High Court earlier to 1954 to the effect that no appeal against an ex parte order of injunction passed under O. 39 r. 1 lies under O. 43, R. 1 (r). Nor did Sri Subrahmanyam cite to us even one decision of the Madras High Court prior to 1954 taking the view that shukoor's case took. Shukoor's case merely refers to a practice of the Madras High Court this is not laying down law. It is merely stating a fact. But such a declaration of fact is not made binding on us by subbarayudu's case. We refuse to follow the observations made in Shukoor's Judgment, because we are of the opinion that those observations run directly counter tot he abovementioned statutory provisions of the Civil P.C.

3. Further we are of the Opinion that subbarayudu's case : AIR1955AP87 failed to consider the right question. The full bench judgment at page 55 (of Andh LT (Cri) : (at p. 89 of AiR) of the report summarised the arguments advanced before it by the learned counsel appearing for the opposite parties in following words:-

'The argument of Mr. Chinnappa Reddi, the learned counsel for the petitioner, amy be put thus: the binding nature of the decision of one Court over another depends upon the fact whether both the courts are courts of co-ordinate jurisdiction. If so, on the principle of judicial comity, the decision of one Court is binding on another. The andhra High Court and the Madras High Court are not courts of co-ordinate jurisdiction for, the idea of co-ordination implies a concurrent and simultaneous jurisdiction. Whatever may be said about the decisions of the composite High Court between 1st October 1953 and 5th July, 1954, the decisions prior to 1st October 1953 are not decisions of a Court of co-ordinate jurisdiction. In any view, the said principle has no application to criminal cases. The advocate general, who appeared as amicus curiae at our request,conceded that the High Court of Andhra and Madras are not courts of co-ordinate jurisdiction but argued that on the principle of stare decisis the decisions of the Madras High Court prior to 5th July, 1954 should be followed by this High Court . The learned Public prosecutor, who appeared for the state further contended that the provisions of the Andhra state Act (XXX of 1953) would indicate that the law of the madras High Court which term is wide enough to include Judge-made law, is also binding on the Andhra High Court'.

It is clear from the above that it was never contended before the full Bench that Andhra High Court cannot be constitutionally unequal to any High Court . the decision therefore neither raised nor considered, what appeared to us to be the most crucial constitutional question relating to the place and powers of the High Court of Andhra in the India federal polity. In Subbarayudu's case : AIR1955AP87 (FB) the question that squarely fell for consideration was the legal competence of the Andhra High Court to disregard the Madras decisions rendered earlier to its formation. Answer to such a question turns upon solely on the powers which the Andhra High Court enjoys under the Constitution. The question what powers the Andhra High Court has can only be answered by reference to the provisions of the Constitution. If that question has been raised and considered the Full Bench could have only found that in view of the constitutional equality which all the High Court enjoy, Andhra High Court is not and cannot be bound by the decisions of any High Court , whether of Madras High Court or of Bombay High Court. But unfortunately subbarao. CJ., (as he then was) who gave the leading judgment in subbarayudu's case, concentrating upon the questions argued before him, treated the whole matter as one belonging to the minor category of law of precedents and as not one raising grave constitutional issues. The fact that prior to the formation of the Andhra state, the territories constituting the old Madras state were common and that the Madras High Court had exercised jurisdiction over all thses territories which had undully influenced the decision in subbarayudu's case would have been totally found irrelevant if only the right constitutional issue was raised and considered. Subbaryudu's case for the above rasons, wrongly described the andhra High Court as a successor to the madras High Court as if the Andhra High Court is an extension of the madras High Court while under the Constitution, a status of equality is assured to all the high Court in the country. The observations at page 57 (of Andh LT (cri)): (at p. 90 of AIR) of the report made by the learned chief Justice clearly bring out this grievous failute of the Full Bench to consider the right question:

'The Andhra High Court, is therefore, in a real sense an offshoot of the madras High Court exercising the same jurisdiction and administering the same laws, which the Madras High Court had exercised before 5th July 1954 in the territories included in the Andhra state. To use a convenient terminology the Andhra High Court may be treated as one succeeding to the High Court of Madras and exercising all the powers and administering the same law which the madras High Court exercised in the territories comprised in the Andhra state'.

On that basis, the learned chief justice examined the question whether the Andhra High Court was a Court of coordinate jurisdiction as compared with its so-called predecessor High Court at Madras and having answered that question in the affirmative. Reached the constitutionally impermissible conclusion that the Andhra High Court was bound by the previsous decisions of the madras High Court rendered prior to 1954 .Although it must be admitted that the decision in subbarayudu's case : AIR1955AP87 (FB) has the undoubted practical merit of ensuring continuance of laws in the new state of Andhra to which Bhimasankaram.J., in his concurring opinion makes a prominent reference, jurispredentially speacking we must observe with deep sense of respect to that most eminent chief Justice that subbarayudu's case failed to consider the right question and gave a wrong decision holding in effect that the Andhra High Court is unequal by its inferiority to Madras High Court. Constitutional courts like a High Court of Andhra exercise Judicial powers that form part of the sovereign powers of a state like the state of Andhra Pradesh Andhra High Court once it is established, can only enjoy and exercise the judicial powers of the state of Andhra and can suffer no diminution of its powers, authority and jurisdiction as conferred by the Constitution. Conceptually, this power which the Andhra High Court exercises belonging to the state of Andhra and flowing directly from the provisions of the Constitution and from a date not anterior to the date of the Andhra state coming into being can have nothing to do with the powers jurisdiction and authority which the madras High Court exercised earlier over these territories and cannot be subordinated to the madras High Court. This is the direct result of the political change the creation of a new state had brought out. Under Article 4 of our Constitution the parliament may make supplemental, incidental and consequential provisions that may arguably provide for continuance of all the existing laws. But so far as the High Court of Andhra is concerned, Subbarayudu's case : AIR1955AP87 (FB) refers to no such parliamentary law nor relies upon it. So we need consider no more of that aspect. In the absence of such a parliamentary law, we must take it that the Constitution of a new state is a political Act and the powers of the new state would be determined by the appropriate higher constitutional principle of forging new relations between the subjects and the new state. Accordingly, the new state cannot suffer any diminution in its plenitude of authority by past ties and associations of whole or part of its territory with an old political unit, except as granted by the Constitution. As our Constitution does not ordain any inferior status, subbarayudu's case was clearly wrongly decided.

4. Article 1 of the Constitution by mandating India to be a Union of states establishes a federal polity. The essence of such a federal polity. The essence of such a federal polity lies in its verical division of legislative executive and judicial powers between the federating units and the centre and in ensuring supremacy of each of those units within the allotted spheres of power and authority. Under that constitutional arrangement the regional Government as much as the central Government directly operate on the same people but in different matters of state. But between the units there is equality maintained. These complex matters are usually reduced to a written constitutional document giving federating units certain degree of supremacy in their allotted sphere (see wheare's Federal Government ) and equality with other federating units. Now our Constitution, which is full of compromises, recognizes the historical fact that political reorganization of the federating units of the Indian union was not yet. Complete. It has therefore, empowered the parliament by means of Art. 3 to form new federating units called states even by cutting out territories of the existing states. The state of Andhra was the first state thus formed by the parliament in exercise of its above powers under Art. 3 of the Constitution by separating certain territories from the state of Madras. But once the parliament created a federating entity like the state of Andhra pradesh in exercise of its powers under art. 3 of the Constitution. It becomes constitutionally imperative for the new state of andhra not only to have a Governor under Article 162, a legislature under art. 168 and a High Court under Article 214 but also to exercise all those powers which the federal Constitution of India has conferred upon the state of Andhra through those organs. In other words, the totality of the powers as conferred by the Constitution on a federating unit and as distributed among the three great departments of the state should be exercised by the state of Andhra alone. Creation of a state may be a political Act, but endowing it with powers is a constitutional function. It follows that the powers jurisdiction and authority of the Andhra High Court representing the judicial power of the state of Andhra as conferred by the Constitution cannot be diminished as it cannot be added to by reference to historical facts such as those mentioned by subbarayudu's case : AIR1955AP87 of the report It should be noted that the powers, authority and jurisdiction of all the highcourt under the Constitution superior powers over the other High Court. It follows that the pre-1954 decisions of the Madras High Court can bind the Andhra High Court no more than they can bind say, the calcutta High Court or the bombay High Court or the Karnataka High Court . The powers, authority and jurisdiction of a constitutional Court like the High Court of andhra cannot therefore be subordinated to or inferiored to the powers authority and jurisdiction of the madras High Court. The decision in subbarayudu's case committed, in our opinion the constitutional error of denying equality to the Andhra High Court. In our opinion the fact that the Andhra state was constituted with territories which once formed part of the Madras state is wholly irrelevant. In our view, the question which was considered at considerable length by subbarayudu's : AIR1955AP87 (FB) decision whether the Madras High Court was a co-ordinate Court or not was wrongly raised and considered. Although we find the examination of co-ordinate Court theory profitless, we do not find it possible to say that the Andhra High Court is exercising the same jurisdiction as the madras High Court was exercising. We agree that the Andhra High Court is exercising similar jurisdiction as the jurisdiction exercised by the Madras High Court or any other High Court but not the same jurisdiction. We would not have stressed this point which appears to be verbal except to emphasise the fact that two judicial organs of two different federating units operating in two separate territories inhabited by different people cannot legally be described to be exercising the same jurisdiction. The weakness in the reasoning of subbarayudu's case will become apparent when it is applied to a state newly formed by the parliament by carving out territories not from one state but from several states and even Union territories. If in a hypothetical case a new stated called. Let us say name X' was formed by the parliament by adding territories from four different states A, B.C and D and also let us say from a Union territory. Every one would argue that it would then be impossible to apply the subbarayudu's principle to the functioning of the High Court of the newly formed state 'X' in the above hypothetical example. Should the High Court of the new state of 'X' follow the decisions of the High Court of states A or B or C or D? The answer to such a hypothetical question cannot depend merely upon the largest extent of territort over which a particular High Court had previously exercised jurisdiction. If we have thought that the petitioner's contention is supporatable by subbarayudu decision, we would have then referred the correctness of subbarayudu : AIR1955AP87 to a full Bench. But in view of the fact that Shukoor' case (AIR 1976 Mad 350) is of the year 1976 and subbaryudu ratio is applicable only to pre-1954 Madras decisions we have left the matter there.

5. In view of the above we reject the contention of the learned counsel for the petitioner that no appeal whatsoever lies against an order of ex parte injunction passed by the lower Court under O. 39, R. 1, C.P.C.

6. A Division Bench of this Court consisting of Madhava Reddy, J. (As he then was) and P. Ramachandra Raju. J., in Balaiah v. Aravindanagar Housing society (1980) 1 Andh LT 90 expressly dissented with the above mentioned view of the Madras High Court and affirmed the contrary view taken by sriramulu, J., in Andhra University v. P. V. N. Raju (1974) 2 Andh WR 17. We respectfully agree with those judgments and reject the argument of sri subrahmanyam for all the above reasons, we are of the opinion that the reliance of sri subrahmanayam on subbarayudu's case is misplaced.

7. It is then argued by Sri. Subrahmanyam that the respondent-defendant in fact appeared before the trial Court and applied for discharge of the ex parte injunction and argued the matter but before the Court pronounced upon the controversy filed an appeal before the lower appellate Court and got the exparte injunction suspended. Sri Subrahmanyam submits that this coduct of the respondent-defendant forfeited his statutory right of appeal under O. 43 R. 1 (r), C.P.C Although the conduct of the respondent-defendant cannot be highly commended we must say that the conduct of the present revision petitioner is no less blameworthy in appearing before the lower appellate Court arguing the matter seeking a decision on merits without raising the present contention and coming to this Court against an adverse decision rendered on merits by Court of appeal. But in our view all these considerations are not strictly germane for the exercise of a statutory right of appeal by the parties. Inasmuch as the respondent-defendant was only exercising a right granted by the statute under O. 43, R. 1 (r) C.P.C the exercise of such a statutory right cannot be defeated on account of his conduct This argument of Sri Subrahmanyam also fails.

8. In the result we uphold the order passed by the lower appellate Court and dismiss the civil revision petition on merits In the circumstances of the case we make no order as to costs.

9. C.R.P. No 4212 of 1979: In this civil revision petition also the contentions similar to those which we have now rejected in the above C.R.P have been raised and for the same reasons we dismiss this C.R.P also but in view of the fact that this revision has been filed against an interim order passed by the lower appellate Court we direct the parties to approach the lower appellate Court for further reliefs. This revision petition is accordingly dismissed, but in the circumstances, without costs.

Petitions dismissed.


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