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Bhan Singh Vs. S. Kanwaljit Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 288 of 1968
Judge
Reported inAIR1969Delhi349
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 and 151 - Order 39, Rules 1 and 2 - Order 41, Rule 27
AppellantBhan Singh
RespondentS. Kanwaljit Singh and ors.
Appellant Advocate S.L. Bhatia, Adv
Respondent Advocate K.K. Mehra, Adv.
Excerpt:
.....the question of balance of convenience, the learned counsel has submitted that even though it be a question of status for the plaintiff, but if he is entitled as of right to claim that status, then his right cannto be defeated merely because the controversy centers round status. in any case, submits shri mehra, the trial has nto yet started and during trial, these documents can very well be placed on the record. before me, there is a dispute at the bar as to what is the actual state of affairs at the present stage pursuant to this order of status quo as understood by the parties and what did the order precisely connote. it is true that the trial court's discretionary order has been reversed by the lower appellate court, but that court has statutory jurisdiction to do so, and on revision,..........court and the documents in question were allowed to be produced and looked into.3. before me on revision, shri s. l. bhatia, the learned counsel for the plaintiff, has very strongly argued that the lower appellate court has acted with material irregularity in the exercise of its jurisdiction by allowing fresh documents to be placed on the record and to be taken into account. he has, in support of his submission, relied on arjan singh v. kartar singh, : [1951]2scr258 , according to which, the discretion given to the appellate court by order 41, rule 27, to receive and admit additional evidence is nto an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. to allow additional evidence to be adduced contrary to the principles governing reception.....
Judgment:
ORDER

1. Six persons instituted a suit in the Court of Shri S. C. Ahuja, Subordinate Judge, 1st Class, Delhi for a declaration and permanent injunction. An application for temporary injunction under Order 39, Rules 1 and 2 read with Section 151, Code of Civil Procedure, was also filed praying that the defendants be restrained from interfering in the work of S. Bhan Singh, plaintiff No. 1, as Secretary of defendant No. 1, the Prince Bus Service, during the pendency of the suit. It was alleged that S. Kanwaljit Singh defendant was interfering with the work of plaintiff No. 1 as Secretary of the Association. This prayer was contested and the learned Subordinate Judge trying the suit considered it proper to restrain defendant No. 1 from interfering with plaintiff No. 1 in the discharge of his duties as Secretary of the Association in question. The defendant was also restrained from disturbing the possession of plaintiff No. 1 of the office located in room No. 5 where, according to him, he acted as Secretary,

2. The matter was taken on appeal to the Court of the learned Senior Subordinate Judge, who reversed the order of the trial Court and came to the conclusion that the balance of convenience was nto in favor of the plaintiff. I consider it proper to reproduce the exact words of the lower Appellate Court:--

'In any case I am of the considered view that the balance of convenience was also nto in favor of the plaintiffs. There Is no doubt that majority of the members were with the appellants. Under such circumstances the comparative mischief or inconvenience which is likely to issue from granting injunction will be greater than that which is likely to arise from withholding it. Plaintiff No. 1, in my view, would nto suffer any irreparable injury if the temporary injunction was nto granted. It is only a question of status for him. On the other hand, working of the Society is likely to be Jeopardized.'

Earlier, the lower Appellate Court had taken into consideration a copy of a re-solution dated 9-10-1966, which showed that plaintiff No. 1 had nto been elected as an office-bearer and, thereforee, was nto entitled to any temporary injunction claimed. This factor also weighed with the lower Appellate Court. An objection was raised that this copy had nto been produced in the Court of first instance and thereforee, could nto be taken into consideration by the learned Senior Subordinate Judge on appeal. The Court below felt that the provisions of Order 41, Rule 27, Civil P. C, were nto attracted in this case because the parties had nto yet started leading evidence and there was, in the circumstances, no question of any permission to lead additional evidence. At the bar of the lower Appellate Court, it was stated that these documents had been filed earlier in some other suit instituted by the defendants and for this reason; they could nto be produced in the trial Court in the present case. This Explanationn appealed to the lower Appellate Court and the documents in question were allowed to be produced and looked into.

3. Before me on revision, Shri S. L. Bhatia, the learned counsel for the plaintiff, has very strongly argued that the lower Appellate Court has acted with material irregularity in the exercise of its jurisdiction by allowing fresh documents to be placed on the record and to be taken into account. He has, in support of his submission, relied on Arjan Singh V. Kartar Singh, : [1951]2SCR258 , according to which, the discretion given to the Appellate Court by Order 41, Rule 27, to receive and admit additional evidence is nto an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. To allow additional evidence to be adduced contrary to the principles governing reception of such evidence is, according to this decision, a case of improper exercise of discretion and the evidence thus brought on the record deserves to be ignored.

In regard to the question of balance of convenience, the learned counsel has submitted that even though it be a question of status for the plaintiff, but if he is entitled as of right to claim that status, then his right cannto be defeated merely because the controversy centers round status. In this respect, the counsel argues, the Court below has again committed a material irregularity in the exercise of jurisdiction.

4. On behalf of the respondents, the impugned order has been supported on the ground that the majority of the members of the society in question, according to the lower Appellate Court, are with the defendants and on this part of the case, nothing has been urged by the learned counsel for the plaintiff-petitioner. If that be so, then so argues Shri Mehra, the impugned order is substantially just and no interference on revision is called for. He has also submitted that merely because some documents have been taken into consideration by the lower Appellate Court on appeal from an interlocutory order, which may, from one point of view be nto strictly covered by the first two clauses of Rule 27 of Order 41 of the Code, it cannto be described to be a jurisdictional infirmity or a material irregularity in the exercise of jurisdiction justifying interference on revision. In any case, submits Shri Mehra, the trial has nto yet started and during trial, these documents can very well be placed on the record. If, thereforee, while dealing with an interlocutory application of the present nature, the lower Appellate Court has taken into account these documents, then it would amount to a mere technical objection to say that the Court has wrongly taken into account these documents. The decision of the Court below on this ground should nto be upset on revision, says the counsel.

My attention has also been drawn by Shri Mehra to some kind of a dispute about the genuineness of the signatures of some of the plaintiffs in the Court below who are represented to be siding with plaintiff No. 1, but I do nto think I would be justified in taking these submissions into account for deciding this revision.

5. It appears that when this revision was admitted by a learned Single Judge on 20-5-1968, notice in regard to the interim injunction prayed for was given to the respondents. On 31-5-1968, on a statement made by Shri S. L. Bhatia at the bar that Shri Mehra had been supplied with the necessary copies and that he had promised to put in appearance, but had nto done so, the stay prayed for was granted with liberty to the respondents to apply for having it vacated, if they so desired. On 15-7-1968, both the counsel appeared before the learned Judge and after hearing them, an order maintaining status quo was recorded. As to what was the point of time for fixing the status quo was nto clarified with precision in the order. Before me, there is a dispute at the bar as to what is the actual state of affairs at the present stage pursuant to this order of status quo as understood by the parties and what did the order precisely connote. Whereas Shri Bhatia says that his client asserts that he is working as Secretary, Shri Mehra denies it and according to him, someone else is working as a Secretary.

6. Keeping in view all the facts and circumstances of this case, in my opinion, it is nto possible to hold that there is any jurisdictional infirmity in the impugned order. The granting of an injunction is purely within the discretion of the Court, but this discretion has to be exercised in accordance with reason and on sound recognised judicial principles. It is true that the trial Court's discretionary order has been reversed by the lower Appellate Court, but that Court has statutory jurisdiction to do so, and on revision, this Court has to be satisfied of an error in the appellate order which may attract revisional power. Whether or nto this Court, functioning as a Court of first appeal, would have reversed the order of temporary injunction made by the original Court is nto the test. The test is a very much narrower one: that of jurisdictional or similar infirmity envisaged by Section 115, Civil P. C. However erroneous the appellate order may be either on facts or in law, and I express no opinion on this aspect at this stage, I am nto convinced -- and indeed this aspect is nto developed at the bar --that the lower Appellate Court had no jurisdiction to make the order it did or that it committed any material irregula- rity in the exercise of its jurisdiction in reversing the order of the Court of first instance, which would attract Section 115, Civil P. C.

I am also unconvinced if the impugned order has resulted in any grave failure of justice. I must nto be understood to affirm the view of the Court below that Order 41, Rule 27, Civil P. C., is inapplicable to appeals against orders granting temporary Injunctions. I am nto expressing any considered opinion on this point. I would dismiss this revision, but without any order as to costs.

I, however, direct that the trial Court should proceed with due dispatch and attempt to dispose of the suit within three months from today. Cases of this nature demand priority and it is only in the fitness of things that business of the society in question is nto allowed to suffer because of personal squabbles in such concerns. I am informed that the Court below has already fixed 7-12-1968 for awaiting the return of the record from this Court. I direct that the record be immediately sent back and the parties should appear in the trial Court on 25-11-1968 and the Court would make suitable orders for further proceedings, including, if considered desirable, production of evidence on 7-12-1968, already fixed.

7. Petition dismissed.


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