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Arpee Properties Pvt. Ltd. Vs. United Bank of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.O. No. 655 of 1985
Judge
Reported inAIR1987Cal60,89CWN853
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 39, Rule 4 - Order 41, Rule 24
AppellantArpee Properties Pvt. Ltd.
RespondentUnited Bank of India and ors.
Appellant AdvocateTarun Chatterjee and ;L.P. Tewari, Advs.
Respondent AdvocatePradip Kumar Ghose and ;Tapan Kumar Banerjee, Advs.
Cases Referred(Cotton Corpn. of India v. United Industrial Bank Ltd.
Excerpt:
- .....aside the order dated 14-8-84 whereby the application under order 39, rule 4 of civil procedure code filed by the opposite parties nos. 2 and 3 was allowed ex pane and the ad interim order of injunction already granted was vacated, and for rehearing the petition under order 39, rule 4 civil procedure code.2. the plaintiff brought the title suit no. 660 of 1984 against the opposite party-defendents and filed an application under order 39, rr. 1 and 2, civil procedure code for temporary injunction restraining the defendant no. 1 (united bank of india) from making payment tp the extent of rs. 52,200/-being the amount of two cheques to the defendant no. 2 (m/s. navin trading corporation) or the defendant no. 3 (b. n. jaiswal) the proprietor of m/s. navin trading corporation) from the.....
Judgment:
ORDER

1. The caveat having been lodged, this revisional application has been heard as a contested application. In this revisional application the plaintiff/petitioner has challenged the order dated 13-3-85 passed by the learned Judge 8th Bench in charge of 12th Bench, City Civil Court, Calcutta, rejecting on the ground of maintainability, the plaintiffs application under Section 151 Civil Procedure Code for setting aside the order dated 14-8-84 whereby the application under Order 39, Rule 4 of Civil Procedure Code filed by the opposite parties Nos. 2 and 3 was allowed ex pane and the ad interim order of injunction already granted was vacated, and for rehearing the petition under Order 39, Rule 4 Civil Procedure Code.

2. The plaintiff brought the Title Suit No. 660 of 1984 against the opposite party-defendents and filed an application under Order 39, Rr. 1 and 2, Civil Procedure Code for temporary injunction restraining the defendant No. 1 (United Bank of India) from making payment tp the extent of Rs. 52,200/-being the amount of two cheques to the defendant No. 2 (M/s. Navin Trading Corporation) or the defendant No. 3 (B. N. Jaiswal) the proprietor of M/s. Navin Trading Corporation) from the current account No. 455 maintained with the defendant No. 1 and also for temporary injunction restraining the defendants Nos. 2 and 3 from collecting or drawing the aforesaid sum from the said account maintained with the defendant No. 1. The trial Court passed the ad interim order of injunction accordingly pending the hearing of the petition for temporary injunction.

3. The defendants Nos. 2 and 3 filed application under Order 39, Rule 4 of Civil Procedure Code for vacating the ad interim order of injunction and the said application was fixed on 14-8-84 for hearing. The plaintiff filed hajira on that date. At about 1-30 p.m. the plaintiff's Advocate along with the plaintiff's representative Mr. Jagadish Sureka on enquiry from the learned Judge 8th Bench in-charge of the 12th Bench, also, came to learn that he would not take up any contested matter of the 12th Bench for hearing and accordingly they left the Court. On 16-4-84 the plaintiffs advocate consulted the causelist to ascertain the date of hearing'but to his surprise came to learn from the cause-list that the petition under Order 39, Rule 4, Civil Procedure Code was allowed ex pane on 14-8-84 because of the absence of the plaintiff without going into the merit of the petition and ad interim order of injunction was vacated. The plaintiff then filed the application under Section 151, Civil Procedure Code which was however rejected by the impugned order on the finding that the application under Section 151, Civil Procedure Code was not maintainable as the order under Order 39. Rule 4, Civil Procedure Code was appealable.

4. Mr. Tarun Chatterjee. appearing for the plaintiff petitioner has submitted that although the order under Order 39, Rule 4, Civil Procedure Code is appealable under Order 43,Rule 1, Civil Procedure Code, still in the absence of material for plaintiff/petitioner's failure to appear before the Court at the time when the matter was called on for hearing and in view of the non-speaking character of the order without basing the order on any material in the record, the remedy by way of appeal though available would have been illusory and that accordingly the application under Section 151, Civil Procedure Code for setting aside the said order and for rehearing the petition under Order 39, Rule 4, Civil Procedure Code was maintainable and that the learned Judge by rejecting the application under Section 151, Civil Procedure Code only on the ground of non-maintainability has failed to exercise the jurisdiction vested in him. Mr. Chatterjee in support of his such submission has relied on the decision in the cases reported in the Law Journals as mentioned hereunder : --

1. : AIR1975Cal80 (FB), (Smt. Bimla Devi v. Aghore Chandra Mallick).

2. : AIR1978Cal160 , (Balaram Ojha v. StarTrading & Investment Ltd.).

3. : AIR1984Cal359 , (Banshidhar Policy v. Kiran Bala Roy).

4. (1984) 2 Cal HN 63, (Ajit Kumar Nandy v. Sholapur Municipal Corporation).

5. AIR 1985 NOC 59 (Orissa), (Puma Chandra Dash v. Smt. Bishnu Priya Mohapatra).

5. Mr. Pradip Kumar Ghose along with Mr. Tapan Kumar Banerjee appearing on behalf of the opposite party-defendant has submitted that the decision in the cases as referred to and relied on by Mr. Chatterjee, learned counsel for the petitioner has enunciated the principles of law without any ambiguity that the inherent power under Section 151, Civil Procedure Code must be exercised subject to statutory provision and that inherent power of the Court cannot override the express provisions of the Code for obtaining the remedy except in a case where the remedy to be obtained by recourse to express provision of the Code of Civil Procedure would be illusory. According to Mr. Ghose, learned counsel for the opposite party-defendant, the principle of law as settled by the aforesaid decisions and also by the decisions in the cases reported in : [1971]1SCR207 , (Nainsingh v. Koonwarjee) and : [1983]3SCR962 , (Cotton Corpn. of India v. United Industrial Bank Ltd.) is that the inherent jurisdiction of the Court must be exercised subject to the rule that if the Civil Procedure Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. Mr. Ghose has further submitted that in the instant case, the remedy by way of appeal against the order under Order 39, Rule 4, Civil Procedure Code could not have been illusory, although the order was not a speaking order, because the materials in the form of petition and objection supported by affidavits in the record would have enabled the appellate Court to give a decision even if the appellate Court would have declined to send back the case on remand for fresh decision on the materials already in the record after setting aside the ex parte order because of the non-speaking character of the order -itself.

6. The order on the application under Order 39, Rule 4, Civil Procedure Code, whether made ex parte or on contest is appealable under Order 43, Rule I, Civil Procedure Code. In the instant case the plaintiff-petitioner obtained the ad interim order of injunction pending the disposal of the application for temporary injunction supported by affidavit filed in Title Suit No. 660 of 1984. The defendant-opposite party filed application under Order 39, Rule 4, C.P.C. supported by affidavit for vacating the ad interim order of injunction. The plaintiff petitioner filed affidavit in opposition. On the date of hearing of the said application under Order 39, Rule 4, C.P.C. the plaintiff and his learned Advocate remained absent, may be for the valid reasons as alleged by the plaintiff-peittioner; but the application under Order 39, Rule 4, C.P.C. was allowed ex parte on the date of hearing i.e. on 14th Aug., 1984 and the ad interim order of injunction was vacated by the Court's order dated 14-8-84. The relevant portion of the order dated 14-8-84 is quoted here :

'The petition under Order 39, Rule 4, C.P.C. of defendants Nos. 2 and 3 is taken up for hearing. Perused the petition. Plaintiff files hazira today and also filed written objection against the petition under Order 39, Rule 4, C.P.C. of defendants 2 and 3.

None appears on behalf of the plaintiff on calls. Heard Ld. advocate for defendants 2 and 3. Considered. The petition under Order 39, Rule 4, C.P.C. is allowed ex parte and the interim order passed on 11-4-84 is hereby vacated.'

7. The plaintiff subsequently came to know of the said ex parte order and being aggrieved filed an application under S. 151, Civil Procedure Code for setting aside the ex parte order and for rehearing the application under Order 39, Rule 4, Civil Procedure Code alleging the grounds for which plaintiff and his Advocate remained absent on call at the time of hearing. The said petition under Section 151, Civil Procedure Code was rejected by the impugned order on the ground that the ex parte order on the petition under Order 39, Rule 4, C.P.C. being appealable, the application under Section 151, C.P.C. was not maintainable.

8. It is the settled principles of law that the inherent power under Section 151, C.p.C. cannot be invoked where there is express provision for the remedy in the Civil Procedure Code. It is also the settled principles of law that where the remedy by way of appeal is illusory, the inherent power under Section 151, C.P.C. can be invoked for obtaining the remedy. Let me consider the principles of law laid down in the decision in the case referred to by the learned counsel on both sides.

9. In the case reported in : [1971]1SCR207 it has been held as quoted here :

'Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the Court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same.'

10. In the case reported in : [1983]3SCR962 it has been held that inherent power under Section 151, C.P.C. must be exercised subject to statutory provision.

11. In the case reported in : AIR1975Cal80 (FB) an application under Order 21, Rule 90, C.P.C. for setting aside the auction sale wasdismissed for default. The petitioner filed an application under Section 151, C.P.C. for setting aside the dismissal order although the said order was appealable. The Full Bench of this High Court held that the application under Section 151, C.P.C. for setting aside the order of dismissal for default of the application under Order 21, Rule 90. C.P.C. was maintainable, as the remedy by way of appeal though available was illusory as the appellate Court which had to go by the record had no material on record to render a decision on the sufficiency of the cause which prevented the petitioner from appearing before the Court at the time of hearing and the appellate Court without first giving the decision on this point could not lead itself to render decision on the second point as to whether the auction-sale should be set aside on the ground of material irregularity or fraud in publishing or conducting the sale whereby the appellant had sustained substantial injury.

12. In the case reported in : AIR1978Cal160 it appears that the defendant of the suit in the trial Court failed to discover on oath the documents in his possession within the period allowed by the Court. On plaintiff s application under Order 11, Rule 21, C.P.C. for striking out the defence for such default of the defendant, the Court struck out the defence by its order. Although the said order is appealable the defendant filed application under Section 151, C.P.C. for setting aside the order striking out the defence. The Division Bench of this High Court held that the remedy by way of appeal though available against such order would have been illusory because there would have been no material on record before the Court on the basis of which the appellate Court could render a decision as to whether the defendant had any justification for his such default and that accordingly the application under Section 151, C.P.C. was held to be maintainable.

13. In the case reported in : AIR1984Cal359 , the matter came up for decision before the Division Bench of this High Court in the following way. Plaintiff (K) filed suit in 1962 against her father (S) and her brother (B) for declaration about her half share in suit premises, for partition and for permanent injunction. (S) in his written statement claimed to be the 16 annas owner of the suit premisesand stated that he had made gift of half share in favour of his son (B) who by separate written statement supported the case of (S). No issue was framed as to whether or not gift was acted upon and was valid. A preliminary decree declaring K's half share was passed on 14-12-66. No finding was recorded as to validity of gift. S died on 22-12-66 leaving as his heirs the widow, two daughters K and M and son B. The appeal filed against the preliminary decree was dismissed on 24-5-77. Meanwhile K on 3-11-71 filed petition claiming 10 annas share i.e. 8 annas under preliminary decree and 2 annas by inheritance and praying for direction to Pleader Commissioner to allot 10 annas share. The trial Court on 3-12-71 passed order directing Pleader Commissioner to allot 10 annas share of suit property to K without notice to B. On 1-7-78, B filed application under Section 151, C.P.C. fqr reconsideration of trial Court's order dated 3-12-71. B's application under Section 151, C.P.C. was dismissed as the order dated 3-12-71 varying defendant's share amounted to decree and the same was appealable. B came to High Court on revision. The Division Bench held that the appeal against the order dated 3-12-71 even if maintainable would be practically illusory when there is no material on record to determine whether S' deed of gift in favour of his son B was valid or invalid and at the time of his death what was the extent of the share of S in the suit property. The Division Bench held also that the trial Court itself had committed a mistake apparent on the face of the record which caused serious prejudice and injury to the defendant B who was not given any notice for being heard before the order of 3-12-71 was passed.

14. In the case reported in (1984) 2 Cal HN 63 it appears that the plaintiff filed the suit in the City Civil Court for a declaration that a decree for Rs. 2,02,776/- passed against him by another Court was void being vitiated by fraud and for injunction. The defendant raised the contention that the suit if properly valued would not be triable in the City Civil Court. The defendant filed an application under Section 11 of the Court-fees Act for enquiry as to the correct valuation of the suit. On the date fixed for hearing of the said application, the plaintiff did not appear. The trial Court found that the suit was not properly valuedand that the valuation would exceed the pecuniary jurisdiction of the Court. The trial Court accordingly ordered the return of the plaint. The Plaintiff filed an application under Section 151, C.P.C. for setting aside the order of return of the plaint, although the order was appealable. The trial Court rejected the said application under Section 151, C.P.C. on the ground of maintainability. In revision, single Bench of this High Court found that the remedy by way of appeal against the order of return of the plaint which was made on the basis of the allegation in the plaint.itself was not illusory and accordingly following the principle of law as laid down in : AIR1975Cal80 (FB), held that the application under Section 151, C.P.C. against the order of return of the plaint was not maintainable.

15. In the case reported in AIR 1985 NOC 59 (Orissa), the full judgment of the single Bench of Orissa High Court with facts and decision is not found. From the short notes it appears that ad interim order of injunction against the defendant was made absolute on defendant's failure to appear on the date fixed for showing cause. Defendant filed application under Section 151, C.P.C. for recalling the ex parte order on the ground that her son who was looking after the case was unable to appear on the date fixed for showing causes, as he went to another place to appear in a criminal case and she herself was bed-ridden with high blood pressure and fever. The single Bench held that the application under Section 151, C.P.C. was maintainable notwithstanding the existence of remedy by way of appeal against the order making the ad interim order of injunction absolute. The reasons behind such decision of the Orissa High Court are not available. It however appears that because of defendant's failure to appear on the date fixed for showing cause there being no material in the record from defendant's side to enable the appellate Court to render any decision on appeal the remedy by way of appeal would have been illusory, and in a case of this nature, the application under Section 151, C.P.C. would be maintainable.

16. The ratio of the aforesaid decisions has clearly established the principle of law that where the remedy by way of appeal though available against the order is illusorybecause of the absence of relevant material in the record, the inherent power of the Court under Section 151, C.P.C. can be invoked for getting the remedy against such order; but the same have not postulated that where such appealable order is not speaking order with reasons therein on the basis of the materials available in the record, the remedy against such non-speaking order can be obtained by invoking the inherent power of the Court under Section 151, C.P.C. without taking steps for getting the remedy by way of appeal specifically provided for such relief in the Civil Procedure Code.

17. In the instant case there is no dispute to the fact that the plaintiff filed objection to defendant's petition under Order 39, Rule 4, C.P.C. for vacating the ad interim order of injunction granted by the Court on plaintiffs petition for temporary injunction Order 39, Rr. 1 and 2 of C.P.C. The matter like this is generally decided on the basis of the petition and objection supported by affidavit with annexures, if any. It appears from the order dated 14-8-84 as already quoted that because of the absence of the plaintiff on call at the time of hearing the petition under Order 39, Rule 4, C.P.C. was allowed ex parte on consideration of the material in the record and the ad interim order of injunction was vacated. There is no gainsaying of the fact that the said ex parte order dated 14-8-84 was not a speaking order coupled with reasons. In view of the existence of materials in the record, the remedy by way of appeal against that ex parte order dated 14-8-84 should not have been illusory. The appellate Court after considering the materials in the record could have sent back the case on remand for fresh decision after setting aside the said ex parte order because of its non-speaking character or could have decided the matter itself under Order 41, Rule 24, C.P.C. on the basis of materials in the record. So in a case of this nature the inherent power of the Court under Section 151, C.P.C. cannot be invoked where the remedy by way of appeal being not illusory was available.

18. The learned Judge in this case rightly did not exercise his jurisdiction under Section 151, C.P.C. on holding by the impugned order that the application under Section 151, C.P.C. was not maintainable. I find no justification to interfere with the order in exercise of my revisional power.

19. The revisional application accordingly fails and is rejected. I make no order as tocosts.


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