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Raghubar Dayal Misra and ors. Vs. Shankar Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All876; 152Ind.Cas.98
AppellantRaghubar Dayal Misra and ors.
RespondentShankar Lal and ors.
Excerpt:
..... that section however relates to permanent injunctions, and cannot be made directly to apply to a temporary injunction like the present one, which is governed by the provisions of order 39, schedule 1, civil p. 166, it was held that the court can only grant an interlocutory injunction if satisfied that in all probability the declaration, which is the foundation for the permanent injunction claimed will be made when that suit comes to be tried. it considered that it would be justified in granting the injunction if on the face of it the parson applying for an injunction has a case which needs consideration and which is not bound to fail by virtue of some apparent defect. if the decision in the bombay case to which i have just referred is correct, as i have every reason to believe it to..........chairman of the municipal board of sikandrabad, but he had been removed from that office by the local government on 17th october 1933. he thereupon brought a suit in the court of the munsif for an injunction against the members of the board to prevent them from holding an election for electing another chairman. it has been made clear to the court, that the plaintiff's object was also to obtain a declaration to the effect that the plaintiff's removal from the chairmanship was in. valid. after removing the plaintiff from the chairmanship, the local government directed the members of the board to fix a date for electing a new chairman, and the plaintiff therefore applied to the munisif's court for a temporary injunction against those members directing them not to hold an election, and.....
Judgment:
ORDER

Kendall, J.

1. The circumstances in which this application in revision has arisen sue briefly as follows : The plaintiff-opposite-party had been the chairman of the Municipal Board of Sikandrabad, but he had been removed from that office by the Local Government on 17th October 1933. He thereupon brought a suit in the Court of the Munsif for an injunction against the members of the Board to prevent them from holding an election for electing another chairman. It has been made clear to the Court, that the plaintiff's object was also to obtain a declaration to the effect that the plaintiff's removal from the chairmanship was in. valid. After removing the plaintiff from the chairmanship, the Local Government directed the members of the Board to fix a date for electing a new chairman, and the plaintiff therefore applied to the Munisif's Court for a temporary injunction against those members directing them not to hold an election, and not to elect; a new chairman. The Munsif issued a temporary injunction, and an appeal against his order has been dismissed by the District Judge of Bulandshahr,

2. It has been argued on behalf of the applicant that the issue of this temporary injunction was ultra vires and without jurisdiction. Mr. Sinha first attempted to establish that under 01. (d) of Section 56, Specific Belief Act, no injunction can be granted to interfere with the public duties of any department of the Government of India or the Local Government, and this the effect of the Munsif's order was so to interfere. That section however relates to permanent injunctions, and cannot be made directly to apply to a temporary injunction like the present one, which is governed by the provisions of Order 39, Schedule 1, Civil P.C. Section 56 is one of the sections of Ch. 10 of the Act which in terms applies to perpetual injunctions, and if there were any doubt on the point, it has been settled by a decision in the case of District Board of Farrukhabad v. Ikhlaque Husain 1933 All 862. It has however been held that if the relief which the plaintiff seeks cannot be granted, no temporary injunction can be issued by the Court : see the cases of Mulji Haridag v. Ibrahim Kahimtulla 1932 Bom. 166 and 1923 Bishan Prasad Pathak v. Sashi Bhushan Misra 1923 Pat. 133. The plaintiff in the present case asked for a perpetual injunction and as a perpetual injunction could not be granted under the provisions of Section 56, Specific Belief Act, it would follow from this authority that a temporary injunction could not be granted under the provisions of Order 39, Rule 2, Civil P.C. Even if it be deemed that the plaintiff had sued not only for a perpetual injunction but for a declaration, it will according to the authority quoted equally follow that a temporary injunction cannot be granted by the Court where the relief sought by the plaintiff in the plaint is one that the Court will be unable to grant.

3. Mr. Agarwala has argued for the opposite-party that even if Clause (d), Section 56, Specific Belief Act, were applied to a temporary injunction, yet in the present case there is nothing to show that the orders passed by the Munsif would interfere' with the public duties of any department of the Government of India or the Local Government.

4. The public duty of the Government was to direct the members of the Board to fix a date for the election of a new chairman, and this the Local Government did without interference on the part of the plaintiff. It was only at a later stage after the Local Government had fulfilled its functions, and when the members of the Board were prepared to obey these orders and to hold the election on the date fixed, that the Munsif interfered with them and prohibited the holding of the election. This is an argument that cannot be entertained seriously. The public duty of the Government is to fix the date of the election and to direct the Board to hold the election, and if the Munsif or the civil Court prohibits the holding of the election on that date, it passes an order that is directly contrary to the order that has been passed by the Local Government with the effect of preventing that order from being carried out. It has been suggested that the plaintiff was asking not only for a perpetual injunction but also for a declaration, and it has not yet been shown that that is a relief which the Court cannot grant. Apparently, the lower appellate Court considered that it was unable to decide this question without going into the merits of the case, and had refused to bold that it was prohibited from entertaining the suit. The declaration however was sought merely as a basis for the perpetual injunction, which was in itself a relief that the Court could not grant. In the decision which I have quoted above Mulji Haridag v. Ibrahim Kahimtulla 1932 Bom. 166, it was held that the Court can only grant an interlocutory injunction if satisfied that in all probability the declaration, which is the foundation for the permanent injunction claimed will be made when that suit comes to be tried. The Court was not in a position to hold that the declaration which was sought would in all probability be granted. It considered that it would be justified in granting the injunction if

on the face of it the parson applying for an injunction has a case which needs consideration and which is not bound to fail by virtue of some apparent defect. The balance of convenience has also to be looked to.

5. The plaintiff's case was primarily one for an injunction, and he only asked for a declaration as a basis for that injunction. If the decision in the Bombay case to which I have just referred is correct, as I have every reason to believe it to be, the Court had to be satisfied that the declaration would in all probability be granted, and not merely that the suit needed consideration and was not bound to fail by virtue of some apparent defect. As the suit is still pending I do not wish to say anything about its merits beyond this, that it was on the face of it one to prove that the Local Government was wrong in passing an order which it had a statutory right to pass. It is difficult to conceive that the Court without hearing the evidence or going into the merits of the case was satisfied that such a suit would in all probability succeed : yet without being so satisfied it could not legally grant the injunction. As the Court appears to me to have acted without jurisdiction, and the matter is one of considerable importance I allow this application with costs, set aside the order of the lower appellate Court, and direct that the injunction be discharged.


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