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Ramalinga Naicker Vs. Chennakrishna Konar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. (S.R.) No. 119315 of 1982
Judge
Reported inAIR1983Mad347; (1983)1MLJ269
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 39, Rule 1, 2 and 4
AppellantRamalinga Naicker
RespondentChennakrishna Konar and ors.
Advocates:R.S.Venkatachari and ;V.S. Babu, Advs.
Cases ReferredFirm Isharadas Devchand v. R.B. Prakash Chand
Excerpt:
.....revision - petitioner open to move trial court under order 39 rule 4 to vacate ad interim injunction - revision petition dismissed. - - 1. clearly applies to the proceedings before the trial judge of the high court ,and in yet another place of the same decision, their lordships have held that most of the interlocutory orders which contained quality of finality are clearly specified in cls. 6. the next decision on which strong reliance was placed by mr. - in our view whenever a trial court judge issue an injunction it would be presumed that he has applied his mind to the material placed before him and on being satisfied about the requirements of the provisions of o. it goes without saying that such an ex parte order is short-lived and tentative and it would be perfectly open..........which rendered the judgment in abdul shukkoor's case air 1976 mad. 350. in that case, what the bench has held after pointing out number of anomalies which would result in case an appeal is entertained against an order of ad interim injunction is as follows:-'in order to set at rest such glaring anomalies the only solution appears to be to hold that no appeal will lie against an ex parte ad interim injunction but that the specific remedy available in o. 39. r. 4. c.p.c. has to be availed of by the interdicted party so that a final reasoned order could be obtained in the trial court itself against which the code has provided an obvious appeal under o. 43 r. 1 ( r) civil procedure code.'the above decision is not shown to be contrary to any of the decisions of the supreme court which mr......
Judgment:
ORDER

1. This unnumbered revision petition is listed before this Court for deciding as to its maintainability.

2. This petition is filed by the first defendant in O.S. 1366/82 on the file of the Court of the District Munsif: Tiruvannamalai, on being aggrieved by the ex parte order made by the Court below in I.A.3762/82 in the above case filed by the plaintiff u/ss. 94 and 151 and O. 39. Rr. 1 and 2. C.P.C. granting an ad interim injunction as prayed for, pending disposal of the said application and directing notice to the revision petitioner (first defendant) and the other two defendants, returnable by 27-11-1982.

3. The attack made against this order is that the said order has been passed arbitrarily and without assigning any reason for dispensing with the notice to the petitioner and the other defendants (respondents 2 and 3 herein) and that the said unreasoned order is violative of the principles as laid down in the decision in Abdul Shukoor v. Uma Chander AIR 1976 Mad 350 rendered by a Division Bench of this Court, to which I was a party.

4. As against this impugned order, no appeal was preferred before the next competent appellate authority and the reason now submitted by the learned counsel is that the Division Bench in above case has ruled that 'no appeal will lie against an ex parte ad interim injunction: but the specific remedy available in O. 39, R.4. C.P.C., has to be availed of by the interdicted party so that a final reasoned order could be obtained in the trial Court itself, against which the Code has provided an obvious appeal under O. 43 R. 1(r) C.P.C.' and hence he has preferred this revision which could be entertained by this Court under S. 115 C.P.C. The further reason given by the learned counsel, while representing the papers, is that no officer was presiding over the Court of the District Munsif at the time of the filing of this petition.

Nevertheless the specific contention of the learned counsel is that when the party is without any remedy by way of an appeal the revision is competent. In support of his contention, he drew the attention of this Court to some decisions rendered by the other High Courts. He also referred to Shah Babulal Khimji v. Jayaben : [1982]1SCR187 wherein the Supreme Court has held that a combined reading of the various provisions of the Cr.P.C. leads to the irresistible conclusion that S. 104 read with O. 43 R. 1. clearly applies to the proceedings before the trial Judge of the High Court , and in yet another place of the same decision, their Lordships have held that most of the interlocutory orders which contained quality of finality are clearly specified in Cls. (a) to (w) of O. 43 R.1.C.P.C.

In yet another decision viz. Firm Ishardas Devichand v. R.B. Prakash Chand : [1969]3SCR677 , the Supreme Court has pointed out that the preliminary objection of the respondent therein before the learned District Judge that the impugned order therein passed by the Subordinate Judge under S. 151. C.P.C., and not under O. 39. Rr.1 and 2. C.P.C. is not sound because in holding that O. 39. R. 2 did not apply, the learned Subordinate's Judge was not exercising his inherent powers. that what the learned District Judge seemed to have done was to hold that the application for temporary injunction did not fall within O. 39. R. 2 and therefore no relevant to the preliminary object must therefore be held that the District Judge and the High Court erred in holding that no appeal lay against the order of the trial Court. Having these decisions in view, now we shall see the other decisions of the various High Courts referred to by the learned counsel, which have taken a view contrary to the one expressed by this Court.

5. The Andhra Pradesh High Court has in R. B. I. Employees' Association v. R. B . of India : AIR1981AP246 , held that 'against an order of injunction passed by the Court below under O.39. R.I. C.P.C., the petitioners have a statutory right of appeal under O. 43, R.I. Cl. (r) Civil P.C.' and that 'under S. 115(2), C.P.C., the High Court is debarred from varying or reversing any decree or order against which an appeal lies either to the High Court or to any Court subordinate to it'. In that case, the impugned order was passed on 30-10-1980 without notice to the defendant in that case who had already filed caveat petitions. The Andhra Pra. High Court after making the above observation, held that the order passed by the lower Court on 30-10-1980 was one passed without jurisdiction and that it was a valuable order and therefore could not be interfered with in revision, and that it was not maintainable under S. 115, C.P.C.

6. The next decision on which strong reliance was placed by Mr. Venkatachari is Jasmat Sangali v. Gujarat Electricity Board, Baroda : AIR1982Guj264 . The Division Bench of the Gujarat High Court in that case, differing from the judgment made by this Court in Abdul Shukoor's case AIR 1976 Mad 350 held as follows:-

'In our view whenever a trial Court Judge issue an injunction it would be presumed that he has applied his mind to the material placed before him and on being satisfied about the requirements of the provisions of O. 39. Rr. 1 and 2. of the Code and also, for reasons to be recorded as required under R.3. he thinks it peremptory to pass a comparatively harsh order behind the back of the other side. It goes without saying that such an ex parte order is short-lived and tentative and it would be perfectly open to the other side to get it revised, varied or set aside. It is, therefore, difficult for us to agree with the reasoning of the Division Bench of the Madras High Court that if any order under O. 39. R.1 is made in and by which a temporary injunction is granted until the disposal of the suit, that by itself presupposes that there was a hearing on the subject matter and both parties were before the Court at or about the time when such an order was made .............'

In doing so, the learned Judges of the Gujarat High Court in that case agreed with the Full Bench of the Allahabad High Court in the case of Zila Parishad Budaun : AIR1970All376 from which decision this Court in Abdul Shukoor's case AIR 1976 Mad 350 had dissented.

7. Reference was also made to the judgment in Mrs. Parijatha v. Kamalaksha Nayak : AIR1982Kant105 . In that case, a Division Bench of the Karnataka High Court, relying on Firm Isharadas Devchand v. R.B. Prakash Chand : [1969]3SCR677 , differed from the view taken by this Court in Abdul Shukoor's case AIR 1976 Mad. 350 to the extent that no distinction can be made between a reasoned and an unreasoned order because that cannot be decisive on the question of appealability. However, the learned Judges held that:-

'We are in respectful agreement with the conclusion in Abdul Shukoor Sahib's case, though on somewhat different reasoning.'

Ultimately that Court ruled thus:

'For the foregoing reasons, we hold that O. 43 R. 1 ( r) of the Code does not allow the filing of an appeal from an exparte interim order of temporary injunction granted under Rr. 1 and 2 of O.39, but the remedy of the aggrieved person is to move the trial Court under R. 4 of O. 39 of the Code in the first instance.'

As pointed out supra. I was also a party to the Division Bench which rendered the judgment in Abdul Shukkoor's case AIR 1976 Mad. 350. In that case, what the Bench has held after pointing out number of anomalies which would result in case an appeal is entertained against an order of ad interim injunction is as follows:-

'In order to set at rest such glaring anomalies the only solution appears to be to hold that no appeal will lie against an ex parte ad interim injunction but that the specific remedy available in O. 39. R. 4. C.P.C. has to be availed of by the interdicted party so that a final reasoned order could be obtained in the trial Court itself against which the Code has provided an obvious appeal under O. 43 R. 1 ( r) Civil Procedure Code.'

The above decision is not shown to be contrary to any of the decisions of the Supreme Court which Mr. Venkatachari has referred to. The Bench has not said in that case that no appeal would lie against such ad interim injunction. But, what it has observed is that the remedy of the aggrieved person is to move the trial Court under R. 4. of O. 39 of the Code in the first instance and thereafter, after obtaining a final order, to prefer in appeal under O. 43 R. 1 ( r) C.P.C.

8. Admittedly in the present case, the party has not moved the trial Court, availing R. 4. O. 39. Therefore, the order against which the revision is now sought to be filed, is not a final reasoned order within the expression of the judgment in Abdul Shukoor's case AIR 1976 Mad 350. The explanation given by the party for not moving the trial Court is that there was no presiding officer in the District Munsiff's Court at the relevant time for him to get a final order by filing a petition under O. 39. R. 4 C.P.C. On verification from the Office, it comes to light that a new officer has already taken charge as District Munsiff even on 26-11-1982, that is, six days after the filing of this petition. Notwithstanding the above position, as under S. 115(2) C.P.C., the High Court is debarred from varying or reversing any decree or order against which an appeal lies either to the High Court or to any Court subordinate to it, this Court cannot interfere with the impugned order in question by entertaining a revision.

9. For all the reasons stated above, this revision is not maintainable at this stage and is accordingly rejected. It is open to the petitioner to move the trial Court under O. 39. R. 4. C.P.C. to vacate an ad interim injunction, if he so desires.

10. Petition dismissed.


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