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Shashank Mukerjee Vs. Naraindas Indurkhya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revision No. 345 of 1972
Judge
Reported inAIR1973MP303; 1973MPLJ684
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 2(3)
AppellantShashank Mukerjee
RespondentNaraindas Indurkhya
Appellant AdvocateRameshwar Prasad Verma and ;R.P. Jain, Advs.
Respondent AdvocateP.S. Khirwadkar, Adv.
DispositionRevision dismissed
Cases ReferredMineral Development Ltd. v. State of Bihar
Excerpt:
- - 2. the contention of learned counsel appearing for the petitioner is that the language of the code of civil procedure clearly envisages action under order 39. rule 2 (3) by the same court which passed the original injunction and consequenlly the court to which the suit is transferred cannot entertain such an application. 5. it, therefore, appears that on the consensus of judicial opinion as well as considering judicial propriety, the words 'the court granting an injunction' can only be understood to mean the court which is trying the suit in which the injunction is granted and which has the jurisdiction to grant an injunction......dayal, c.j. 1. this is a revision against the order of the 12th civil judge, class ii, jabalpur. civil suit no. 198-a of 1971 was previously pending in the court of first civil judge class ii, jabalpur. he passed a temporary injunction against the petitioner. the suit was then transferred under section 24 of the code of civil procedure to the court of the 12th civil judge, class ii the non-applicant filed an application before the 12th civil judge. class ii, under order 39, rule 2 (3) of the code of civil procedure complaining of breach of the injunction. an objection was raised before that court that the original injunction having been granted by first civil judge class ii, the 12th civil judge class ii had no jurisdiction to entertain the application under order 39. rule 2 (3) of the.....
Judgment:
ORDER

Bishambhar Dayal, C.J.

1. This is a revision against the order of the 12th Civil Judge, Class II, Jabalpur. Civil Suit No. 198-A of 1971 was previously pending in the Court of First Civil Judge Class II, Jabalpur. He passed a temporary injunction against the petitioner. The suit was then transferred under Section 24 of the Code of Civil Procedure to the Court of the 12th Civil Judge, Class II The non-applicant filed an application before the 12th Civil Judge. Class II, under Order 39, Rule 2 (3) of the Code of Civil Procedure complaining of breach of the injunction. An objection was raised before that Court that the original injunction having been granted by First Civil Judge Class II, the 12th Civil Judge Class II had no jurisdiction to entertain the application under Order 39. Rule 2 (3) of the Code. The Court below has taken into consideration the view of the different High Courts and, on the basis of the consensus of opinion, has held that this Court (12th Civil Judge, Class II) had jurisdiction to entertain the application. It is against this order that the present revision has been filed.

2. The contention of learned counsel appearing for the petitioner is that the language of the Code of Civil Procedure clearly envisages action under Order 39. Rule 2 (3) by the same Court which passed the original injunction and consequenlly the Court to which the suit is transferred cannot entertain such an application. The relevant words of the sub-rule are :

'In case of disobedience, or of breach of any such terms, the Court granting an injunction may order .....'

The emphasis of learned counsel appearing for the petitioner is on the words 'the Court granting an injunction' and his contention is that the 12th Civil Judge, Class II, not having originally granted the injunction had no jurisdiction to proceed in this matter. For this proposition learned counsel has placed reliance upon a decision of the Calcutta High Court in Sk. Abu Bakkar v. Sm. Parimal Prova Sarkar, AIR 1962 Cal 519.

3. On the other hand, the contention of learned counsel for the non-applicant is that the language used in the section is not clear enough to oust the jurisdiction of the Court which is hearing the case from passing all orders in respect of the suit. The Court which granted the injunction was the Court which was hearing the suit and hence the suit haying been transferred to another Court, which was now trying the suit, is the Court which originally granted the injunction. He has also relied upon Mouna Guruswamy Naicker v. Sheikh Muhammadhu Rowther, AIR 1923 Mad 92; Dulhin Janak Nandini Kunwari v. Kedar Narain Singh, AIR 1941 All 140; Sheobrich Singh v. Basgit Singh, AIR 1957 Pat 73: Mineral Development Ltd. v. State of Bihar, AIR 1962 Pat 443 and Kahan Chand v Faqir Chand, AIR 1968 Punj 374. In all these cases the view has been taken thatthe Court to which the suit is transferred is competent to entertain an application under Order 39, Rule 2 (3) of the Code of Civil Procedure. These decisions are based on two main grounds. The Allahabad High Court has taken the view that proceedings under Order 39, Rule 2 (3) are in the nature of execution proceedings since the original injunction had already been passed and, in view of its breach, it is a matter of enforcing the injunction. Analogy has therefore been taken from Section 37 read with Section 36 of the Code of Civil Procedure. The Code provides that execution of a decree can be taken in the Court which would have entertained the suit. This would mean that since in the present case the suit was pending in the Court of 12th Civil Judge. Class II, an injunction application would lie in that Court and consequently an application for enforcement of any injunction passed by that Court should be entertained by that Court. The Patna High Court has taken the view that Section 150 of the Code of Civil Procedure provides a proper analogy. Under that section when a business is transferred from one Court to another, the transferee Court has all the powers of the Court whose business is transferred. Since a suit is transferred under the powers exercised under Section 24 of the Code of Civil Procedure, it must have the effect of transferring all the powers of the original Court to the transferee Court. It would be very anomalous that a suit should be tried by the transferee Court but the powers relating to interim orders passed in that suit should be exercised by the original Court.

4. The same view has been adopted by the Punjab High Court in AIR 196S Punj 374. The Madras High Court in AIR 1923 Mad 92 (supra) also has taken the same view.

5. It, therefore, appears that on the consensus of judicial opinion as well as considering judicial propriety, the words 'the Court granting an injunction' can only be understood to mean the Court which is trying the suit in which the injunction is granted and which has the jurisdiction to grant an injunction.

6. I, therefore, hold that the view taken by the Court below is correct. There is no force in this revision It is accordingly dismissed with costs. Counsel's fee is fixed at Rs. 50/-.


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