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Raja Ramakaran Vs. B. Ramulu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 4799 of 1981
Judge
Reported inAIR1982AP256
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 43, Rule 1
AppellantRaja Ramakaran
RespondentB. Ramulu
Appellant AdvocateUpenderial Waghray, Adv. for ;B. Sudershan Reddy, Adv.
Respondent AdvocateM. Narasaiah, Adv.
Excerpt:
civil - interim injunction - section 115 and order 43 rule 1 of code of civil procedure, 1908 - ex parte interim injunction order against defendant - approached trial court for vacating the order - subsequently ex parte interim injunction order suspended by appellate court - revision petition filed - revision petition against such suspension maintainable as powers under section 115 are wide so as to include within its sweep any order that has been passed in course of suit or proceedings - appeal filed by defendant against ex parte interim injunction order issued by trial court was maintainable - no exception can be taken to remedy of appeal chosen by defendant. - - clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. it was not..........was adjourned to 8-12-1981. meanwhile on 4-12-1981 the defendant field an appeal as against the exparte interim injunction order dt. 27-11-1981. pending the appeal being c.m.a. no. 359/81 in the court of the addl. chief judge, city civil court, hyderabad, he also moved an interlocutory application being i.a. no. 1199/81 for suspension of the order passed by the 4th addl. judge city civil court, hyderabad. the appellate court by an order dt. 4-12-1981 granted interim suspension of the operation of the ex parte interim injunction order. as against the order passed by the appellate court, the plaintiff filed the revision petition in this court and the revision petition was admitted and interim suspension of the order of the appellate court was granted by this court 7-12-1981.2. the learned.....
Judgment:
ORDER

1. The petitioner is the plaintiff. The plaintiff field the suit being O.S No. 1351/81 for perpetual injunction restraining the defendant and his agents from interfering with his peaceful possession of the land measuring 5,000 sq. yds in S. No. 129/56 (T.S. No. 19). Shaikpet village, Banjara Hills, Road No. 14, Hyderabad. In the interlocutory application the trial Court granted ex parte interim injunction order on 27-11-1981 and posted the same to 20-1-1982. The defendant moved an application the hearing of I.A. No. 1261/81 for advancing the hearing of I.A. No. 1261/81 and thereupon the hearing of the petition was advanced to 4-12-1981, On 4-12-1981 it was adjourned to 8-12-1981. Meanwhile on 4-12-1981 the defendant field an appeal as against the exparte interim injunction order dt. 27-11-1981. Pending the appeal being C.M.A. No. 359/81 in the court of the Addl. Chief Judge, City Civil Court, Hyderabad, he also moved an interlocutory application being I.A. No. 1199/81 for suspension of the order passed by the 4th Addl. Judge City Civil Court, Hyderabad. The Appellate Court by an order dt. 4-12-1981 granted interim suspension of the operation of the ex parte interim injunction order. As against the order passed by the Appellate Court, the plaintiff filed the Revision Petition in this Court and the Revision Petition was admitted and interim suspension of the order of the appellate Court was granted by this court 7-12-1981.

2. The learned counsel for the petitioner contended that the appellate Court 1982 Andh. Pra/17 . VII G-13 acted in material irregularity in exercise of appellate jurisdiction and that grave injustice resulted in passing such order and the defendant having chosen the remedy of invoking the trial Court for vacating the ex parte injunction order, is precluded from filing the appeal and in the circumstances the appeal should not have been entertained and the ex parte suspension order should not have been passed.

3. The learned counsel for the respondent contended that it is open to the defendant to invoke the appellate authority by way of an appeal as the defendant was aggrieved by the ex parte injunction order and the remedy chosen by him cannot be questioned by the plaintiff and there is absolutely no irregularity in exercise of the jurisdiction by the Appellate Court and that the order of the Appellate Court passed in exercise of discretion, cannot be the subject matter of interference under S. 115, C.P. C by this Court.

4. At the outset the learned counsel for the respondent raised a preliminary objection as to the maintainability of this Revision Petition itself. It is contended that the Revision Petition is not maintainable as against an Interim suspension order passed by the Appellate Court as the interim order will not come within the purview of 'case decided' under S. 115 C.P.C. The learned counsel for the petitioner contended that the powers conferred on the High Court under S. 115, C.P.C. are wise and any order passed or proceeding is amenable to the jurisdiction of the High Court under S. 115, C.P.C. The emphasis is laid by the learned counsel for the petitioner, upon the expression ' any case which has been decided' in the first limb of the section and also the Explanation which says - 'that any order made or any order deciding an issue, in the course of a suit or other proceeding.' Basing upon the language employed in the Explanation the learned counsel for the respondent elucidates his contention that the issue or the application should have been decided and there should be a final order and the interim order is made pending disposal of an application and such order which can be vacated by the same court on hearing the other side did not ripen into a final order so as to be amenable to S. 115 C.P.C. This contention suffers from a fallacy as the power under S. 115. C.P.C. is so wide as to include any order that has been passed in the course of a suit or proceeding. The learned counsel for the respondent glossed over the expression 'any order made' preceding the expression. The expression 'any order' takes in its sweep any kind of order that has been passed by the courts below and such order is amenable to Section 115. C.P.C. subject to certain limitation and in-built checks provided in the section. The distinction between an interim order and a final order cannot be discerned from the expression 'any order'. In this connection the decision of the Supreme Court reported in S. S. Khanna v. F. J. Dillon. : [1964]4SCR409 may be referred to. In this decision the Supreme Court held that the expression 'case decided' takes in its fold the interlocutory orders also as the expression 'case decided' takes in its fold the interlocutory orders also as the expression 'case' is a word of comprehensive import and includes a part of the case also and thereby set at rest the divergent views expressed by the High Courts with regard to the connotation of the expression 'case decided'.

5. In support of his connection the learned counsel for the respondent relied upon the decision of the Allahabad High Court in M. P. Kapur v. B.S.O.S. & D. Co., 0043/1973 : AIR1973All109 wherein it was held that ex parte interim order will not amount to a case decided, as no final order is passed and it can be said that a case has been decided only when a final order is passed, but not at the stage when an interim order is passed which did not attain finality. The learned counsel for the petitioner relied upon the decision in Tata Iron & Steel Co. v. Rajarishi Exports, AIR 1978 Orissa 179 wherein the Orissa High Court held that the ambit and scope of revision under S. 115 C.P.C. has been widened by inserting the Explanation and by virtue of this Explanation the order passed at any stage is amendable to the jurisdiction of the High Court under S. 115, C.P.C. In Food Corpn. of India v. B. N. Dhar, : AIR1978Cal264 the Calcutta High Court held that the Explanation to the amended S. 115, C.P.C. takes in any order made in the course of the suit or proceeding and as such there is absolutely no limitation as to the powers of interference under Section 115, C.P.C. and any order passed without any distinction whatsoever is amenable to the jurisdiction under S. 115, C.P.C. In Sobha v. Behari Lal, the Himachal Pradesh High Court held that the Explanation has widened the scope of the revision and the High Court is competent to interfere in any matter in order to secure the ends of justice.

6. The decision of the Allahabad High Court referred to by the learned counsel for the respondent was rendered before the Explanation was inserted in 1976. In any view, I am not inclinded to agree will the ration propounded by the Allahabad High Court. Section 115, C.P.C. and provisions of similar pattern in several other enactments are designed to confer a wide power on the ultimate authority to call for the records and supervise the correctness of the proceedings subject to certain limitations. Any order passed by the sub-ordinate court is vulnerable and the distinction between an interlocutory order and a final order is not warranted. I am not inclined to agree with the contention of the learned counsel for the respondent and the preliminary objection lacks substance.

6-A. The other formidable issue pertains to the ambit of the appellate jurisdiction and revisional jurisdiction of this Court. The learned counsel for the petitioner laid great stress that the respondent-defendant having invoked the trial Court by way of an application for vacating the ex-parte injunction order, should not have chosen to prefer the appeal and file an application for ex parte suspension order. It is contended that the material irregularity in exercise of appellate jurisdiction is transparent in passing an exparte suspension order as against an ex parte interim order of the trial Court. The learned counsel for the respondent with equal stress pointed out that the petitioner should not have chosen to invoke the revisional jurisdiction of this Court and moved an application for ex parte suspension of an order of the Appellate Court. It is contended that the aggrieved party can always choose the remedy and if two remedies are open, it is for the aggrieved party to opt for either of them. It is further contended that having realised that the matters will be delayed and that under the guise of ex parte interim injunction order the plaintiffs are trying to enter the land and to avert this imminent danger the defendant was obliged to file the appeal. The learned counsel for the respondent invited my attention to a decision of this court in Balaiah v. Aravindanagar Co-op. Housing Society (1980) Andh LT 90 for the proposition that an appeal is maintainable as against an ex parte interim injunction order. Madhava Reddy, J. speaking for the Court observed as follows:- 'No case has been brought to our notice in which this court held that an appeal against an ex parte interim injunction is not maintainable. All other High Courts also have taken the view that a party aggrieved by the ex parte ad interim injunction may either move the Court which has passed the ex parte injunction to vacate the same, or may prefer an appeal under O. 43, R.1 (r) C.P.C..'

7. In view of the decision of this Court, the appeal is maintainable as against the ex parte injunction order and no exception can be taken to the remedy chosen by the defendant in filing the appeal. It is connected by the learned counsel for the respondent that the Appellate Court has jurisdiction to entertain the appeal and pass an ex parte order pending the disposal of the appeal. It is for the aggrieved party to appeal and persuade the court that the ex parte order is not correct in the circumstances of the case, but it cannot say that there is any error in the exercise of jurisdiction. In support of this proposition the learned counsel invited the attention to the decision of the Supreme Court reported in Managing Director, Hindustan Aeronautics v. Ajit Prasad, : (1972)ILLJ170SC wherein it is observed as follows (at p. 77):-

'In our opinion the High Court had no jurisdiction to interfere with the order of the first Appellate Court. It is not the conclusion of the High Court that the first Appellate Court had no jurisdiction to make the order that it made. The order of the first Appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first Appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under S. 115, C.P.C.'

The other decision that is relevant in this context is D.L.F. Housing Etc. Co. v. Sarup Singh, : [1970]2SCR368 . This decision is concerned with the power of the High Court under S. 115, C.P.C. to interfere with the order of stay granted by the Appellate Court. It is observed as follows (para 8):

'The position thus seems to be firmly established that while exercising the jurisdiction under S. 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words 'illegally' and 'with material irregularity' as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of he appeal, could hardly justify interference on revision under S. 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.'

8. The principles that emerge from the decisions cited above are that an appeal is provided as against the ex parte injunction order passed by the trial Court and Appellate Court is competent to entertain such an appeal and pass interim orders in the ends of justice. If aggrieved by such interim order of the Appellate Court, proceedings can be set in motion for vacating such interim order. When the Appellate Court exercised its discretion, it is not amenable to interference under S. 115, C.P.C. unless there is a manifest error or material irregularity touching the jurisdiction. It is not pointed out by the learned counsel for the petitioner as to how the order is infected by any material irregularity in exercise of jurisdiction. There is absolutely no semblance of irregularity in the exercise of power of jurisdiction, and the error, factual or legal, if any, in the course of passing the order does not impinge upon the jurisdiction vested in the court. The alleged intention of the defendant to avert of by-pass the proceedings before the trial court cannot be considered as a material irregularity in the exercise of the jurisdiction by the Appellate Court. The ethics of a litigant in choosing the forum is not a factor that can be countenanced for the purpose of determining the jurisdiction of the Court. The alleged dilatory attitude of the party cannot sterilise the legitimate jurisdiction of the court. The jurisdiction depends upon the nature of the proceeding and the nature of the reliefs that are moulded in the suit or appeal. The defendant for the reasons best known to him did not prefer to participate in the proceedings before the trial Court and thought fit to approach the Appellate Court. It is well settled, as laid down by a Division Bench of this Court, that the aggrieved party can file an appeal as against an interim order and such appeal is competent and the appellate Court is competent to entertain it and pass appropriate orders. Doubtless the petitioner is very much aggrieved by the ex parte suspension order and if so, it is for the petitioner to approach the Appellate Court by filing appropriate petition to vacate that order by showing infirmities in the said order. The learned counsel for the petitioner is not able to point out any lapse or infirmity in entertaining the appeal by the Appellate Court or passing an order in its discretion. Further, it cannot be said that the interim order passed now by the Appellate Court or passing an order in its discretion. Further, it cannot be said that interim order passed now by the Appellate Court has resulted in miscarriage of justice. It is premature to say at this stage that the order passed by the Appellate Court is unjust or is vitiated by manifest illegality. On the petition filed by the appellant for an interim relief, the Appellate Court in its desecration passed an ex parte suspension order. It is too early to say whether the discretion exercised by the Appellate Court is capricious or otherwise. But, however, these matters cannot be considered at this stage. We are now concerned in this Revision Petition as to the material irregularity in exercise of jurisdiction by the Appellate Court, The Appellate Court is well within its power and jurisdiction to entertain the appeal and pass an interim order. The Additional Chief Judge, City Civil Court, Hyderabad, is directed to dispose of the interlocutory application and the appeal as expeditiously as possible.

9. Therefore, the Civil Revision Petition is dismissed. No costs.

Revision dismissed.


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