N.C. Talukdar, J.
1. This Rule is at the instance of the Plaintiff-Petitioner and is directed against on order dated the 5th October, 1972 passed by Shri D. Dutta Gupta, Munsif, 5th Court, Alipore, District 24-Parganas rejecting the petitioner's prayer for ad interim injunction at that stage in conection with his application for injunction filed under Order 39, Rules 1 and 2, Civil P. C. in Title Suit No. 195 of 1972.
2. The facts leading on to the Rule are rather chequered but can be put in a short compass. The case of the Plaintiff/Petitioner inter alia is that he was appointed as an Assistant Store Keeper in the Engineering Department under the Electric Lamp . issued a letter dated the 27th March, 1972 stating, inter alia, that the plaintiff was transferred from the Engineering Department to the Packing Department (Lamp Factory) with effect from the 20th March, 1972 and was directed to report to the Factory Manager immediately on receipt of the letter; and that being aggrieved by the said order dated the 27th March, 1972, as being mala fide, illegal and against the principles of natural justice, the Plaintiff-Petitioner filed Title Suit No. 105 of 1972 on the 30th March, 1972 in the Court of the learned Munsif, 5th Court, Alipore, District 24-Parganas praying, inter alia, for a declaration that the order dated the 27th March. 1972 is illegal, mala fide and not binding upon the plaintiff. An application for injunction was also moved before the learned Munsif on the 30th March, 1972 praying for a stay of operation of the order dated 27-3-1972 but the learned Munsif rejected the same. Being aggrieved thereby, the petitioner moved a revisional application before this Court and obtained a Rule as also an interim order. The Rule ultimately was heard by Mr. Justice Chittatosh Mookerjee who by his order dated the 6th June, 1972 disposed of the Rule with certain directions that the order was not to take effect for two weeks. This constitutes the first chapter. On remand the learned Munsif heard the matter in the presence of both the parties on the 17th June, 1972 and ultimately dismissed the application for temporary injunction by his order dated the 21st June, 1972. A revisional application followed against the same and Mr. Justice A. P. Das by his order dated the 27th March, 1972 discharged the Rule being C. R. 2003 of 1972 and further rejected the prayer made on behalf of the petitioner for staying the operation of the order for 15 days. This closed the second chapter. Subsequent thereto, a notice dated the 23rd June, 1972 was served on the petitioner calling upon him to show cause to the charges levelled against him as to why disciplinary action should not be taken against him and pending the enquiry he was suspended from service with immediate effect till the enquiry and the final orders in the matter. On the 5th October, 1972 the Plaintiff-Petitioner filed an application under Order 39. Rules 1 and 2. Code of Civil Procedure supported by an affidavit for an order of injunction restraining the Defendant from giving effect to the order of suspension dated 23rd June, 1972 and to allow the pelitioner to work at his old post. A prayer was also made for an ad interim injunction to the said effect till the disposal of the suit. The defendants having prayed for time to file their objection the learned lawyer for the Plaintiff-Petitioner prayed for an order for interim injunction in the meanwhile. The learned Munsif by his order dated the 5th October, 1972 refused the prayer for interim injunction at that stage and called upon the Defendants to file objections by the 16th November, 1972. The Plaintiff-Petitioner moved against the said order and obtained the present Rule along with an interim order as prayed for.
3. Mr. B. K. Roychoudhury, Advocate (with Mr. Narayandas Das, Advocate), appearing in support of the Rule, made a three-fold submission. He contended firstly that the learned Munsif has acted illegally and With material irregularity in the exercise of his jurisdiction on the question of irreparable injury; and secondly, that he further erred in his approach to the question of balance of convenience of the parties, prejudicing thereby the Plaintiff-Petitioner. Tbe third and last submission of Mr. Roychoudhury is that injunction is an equitable relief and the learned Munsif should have allowed the prayer for ad interim injunction on the grounds of justice in favour of the plaintiff-petitioner, who is a harassed employee in pursuit of justice and who cannot be suspended by the defendants-opposite parties, who have even no rules and regulations of service in the absence whereof their action has been arbitrary. In any event, without the order for interim injunction, the substantive application for injunction filed by the plaintiff-petitioner under Order 39, Rules 1 and 2, Civil P. C. would be infructuous.
4. Mr. Noni Coomar Chakravarty, Advocate (with Mr. Sailendra Bhusan Buxi, Advocate), appearing on behalf of the defendants-opposite parties, joined issue. He raised a preliminary objection relating to the maintainability of the present Rule under Section 115, Code of Civil Procedure, besides giving his replies to the three-fold submission made by Mr. Roychoudhury on behalf of the plaintiff-petitioner, and raising two other contentions, on behalf of the defendants-opposite parties to oppose the Rule. An affidavit-in-opposition affirmed on the 31st January, 1973 and an affidavit-in-reply thereto affirmed on the 5th February, 1973 were filed on behalf of the parties. Several cases were also cited by the learned Advocates appearing on behalf of the respective parties and the same would be considered in the proper context.
5. I will take up for consideration the preliminary objection raised by Mr. Chakra-vorty in the first instance as it goes to the very root of the case. The order dated the 5th October, 1972, passed by the learned Munsif. is an order refusing a prayer for ad interim injunction and as such is undoubtedly appealable. The cloud raised at one stage over the point as to whether an appeal would lie before a Revisional application is maintainable has since been removed by the imprimatur of judicial decisions and without multiplying the number, a reference may be made in the first instance to a Division Bench decision of this Court in the case of Saraju Prasad Singh v. Gantraprosad Shah reported in : AIR1951Cal446 wherein Mr. Justice Roxburgh and Mr. Justice K. C. Chunder held that the ad interim injunction passed in that case was clearly made under Order 39, Rule 2 and was appealable under Order 43. Rule 1. Civil P. C. A more recent decision of this Court in the case of Motilal Singh v. Shib Chandra Bose reported in (1971) 75 Cal WN 233 lends assurance to the said proposition. Mr. Justice Salil Kumar Datta delivering the judgment of the Court observed that the order refusing an ad interim injunction is a final order and is appealable under Order 43, Rule 1. Mr. Roychoudhury however submitted that the Rule cannot be discharged on that point because the dominant test for consideration in such case is as to whether an appeal against the order did lie to the High Court or to the Court below. Tf it did lie to the Hiph Court, it came in terms within the mischief of the provision of Section 115 of the Code of Civil Procedure but otherwise not and the point for consideration in the second group of cases would be whether the ends of justice compelled consideration in cases where the appeal in the Court below was skipped over. Mr. Roychoudhury relied on the case of Major S. S. Khanna v. Brig. F. J. Dillon, : 4SCR409 . Mr. Justice Shah for himself and Mr. Justice A. K. Sarkar fas His Lordship then was) delivering the majority judgment observed that--
'Tf an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction, but where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded.'
In a more recent decision of the Calcutta High Court in the case of Rashbchari Dutta V. Panchanan De reported in : AIR1967Cal627 , Mr. Justice P. N. Mookerjee and Mr. Justice A. K. Dutt followed the aforesaid observations of the Supreme Court and held ultimately that 'the expression 'no appeal lies thereto' in Section 115 must be interpreted to mean and include only those cases, where no appeal, either directly or indirectly, lies to the High Court. In other words, the revi-gional power under Section 115 of the Code cannot be exercised by the High Court in cases where an appeal lies to it. either in the form of a first appeal or a second appeal, but, in other cases, where the matter cannot be brought up on appeal to that Court, either directly or indirectly, that is, either by way of a first or first miscellaneous appeal or a second or second miscellaneous appeal, its revisional power will not be excluded merely because there may be an appeal to some other Court.' This sums up the position in law with regard to a revisional application filed in the High Court, skipping over an appeal which otherwise did lie before the Court below. I will refer in this connection also to another case. viz. Maharaja Sashi Kanta Acharyya Bahadur v. Nasirbad Loan Office Co. reported in 63 Cal LJ 105 -- (AIR 1936 Cal 786) wherein Mr. Justice R. C. Mitter observed at p. 107 as follows:
'In my judgment the revisional power Tinder Section 115 is a bar only when an appeal lies to this Court. The fact that an appeal lay to the lower appellate Court will not take away the powers of this Court to revise the order of the munsif.'
Mr. Justice Mitter ultimately proceeded to dispose of the Rule on the well-settled principles of Ubi Jus Ibi remedium (where there is a right there is a remedy). I respectfully agree with the said observations and I hold that the present application cannot be thrown out merely on the ground that an appeal was not preferred before the learned District Judge, 24-Parpanas. I must observe however that Mr. Chakravarty also, in his fairness, did not ultimately press his preliminary objection in view of the unequivocal observations of the Supreme Court. The preliminary point is accordingly disposed of.
6. I will now turn to the three-fold submission raised by Mr. Roychoudhury in support of the Rule and the replies made thereto by Mr. Chakravarty. As to the first point raised by Mr. Roychoudhury, it is pertinent to consider the definition of 'irreparable injury' in the backdrop of the law of injunctions. It has been observed by Joyce in 'The Doctrines and Principles of the Law of Injunctions' that 'an injunction is a writ remedial, issuing by the order of a Court of JEquity, in those cases where the plaintiff is entitled to equitable relief'. A person who sought the aid of a Court of Equity is required to satisfy the Court that its interference is necessary to protect him from irreparable, or at least serious injury, before the legal rights could be established at the trial. It is observed in Spelling's 'Injunction and other Extraordinary Remedies' (2nd Edn), Vol. 1, Chapter I, Section 13 that 'in its technical sense, an injury is irreparable eilher that no legal remedy furnishes full compensation or adequate redress, owing to the inherent ineffectiveness of such legal remedy, or that, owing to the delay incident to the prosecution of an action at law to final judgment and obtaining service thereon, such judgment and process would prove fruitless of beneficial results.' A reference may also be made to Halsbury's 'Laws of England' (3rd Edn.) Vol. 21, Section 739, wherein it is stated that 'by the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages'. In the well-known case of Begg. Dunlop & Co. v. Satish Chandra Chatterjee reported in 23 Cal WN 677 = (AIR 1920 Cal 276) the Division Bench relied on the observations by Kerr on Injunction, 5th Edn., p. 19 and observed that 'by the term 'irreparable injury' however it is not meant thnt there must be no physical possibility of repairing the injury; all that is meant is that the injury would be a material one, and one not adequately reparable by damages.' Mr. Chakravarty submitted that there is no question of any irreparable injury being caused to the plaintiff-petitioner in the facts and circumstances of the case and that the transfer of the petitioner from the Engineering Department is only a transfer from one assignment to another. For ascertaining the true import of the term irreparable injury, n reference may also be made to the observations of Lord Coleridge, C. J. in the case of Mogul Steamship Co. v. M'Gregor, Gow and Co. reported in (1885) 15 QBD 476 that 'it may be that they will suffer some damages: it may be that they will for a time have a difficulty in carrying on their China trade or may have to carry it at a loss. But injury of that sort differs altogether from the injury which is called 'irreparable', to prevent which injunctions have heretofore been granted in the Court of Chancery, and are now allowed to issue from this Court.' I respectfully agree and on an anxious consideration of the materials on the record up-till now it is difficult for me to hold that the refusal of ad interim injunction at this stage before hearing the substantive application for injunction on proper materials would cause irreparable injury to the plaintiff-petitioner. The first contention of Mr. Roychoudhury accordingly fails. The second branch of Mr. Roychoudhury's submissions does not stand on any better footing. The balance of convenience should not ultimately be an imbalance. It is an essential ingredient of the triple test required for granting injunction viz., prima facie case, balance of convenience and irreparable injury or loss. The learned Munsif, as Mr. Chakravarty rightly submitted, did not reject the substantive application for injunction but he merely granted time to the defendants to file the requisite objection and fixed a date for it. He only refused the prayer for ad interim injunction in the meanwhile. An order for ad interim injunction at the said stage will merely hold up the pending proceedings and thereby delay and defeat justice. The balance of convenience at the stage reached is not ultimately in favour of the plaintiff-petitioner and therefore the second contention raised in this behalf by Mr. Roychoudhury also fails. The third dimension of Mr. Roychoudhury's arguments is that the facts and circumstances of the present case bring to light a veritable odyssey on the part of 'a harassed employee in pursuit of justice. More so, when the defendants opposite parties have got no rules and regulations of service in the absence whereof their action has been arbitrary as they have no right to suspend the plaintiff-petitioner when the matter was pending and that also in his absence. Mr. Chakravarty joined issue and relied on the averments made in the affidavit-in-opposition affirmed on the 31st January, 1973. The point for my consideration in this Rule is whether the order refusing the ad interim injunction at this stage is a tenable one. The ultimate determination on merits would only be made by the learned Munsif when he disposes of the substantive application for injunction under Order 39, Rules 1 and 2, Civil P. C. The principles on which the Court acts in such contingencies have been bid down by the various authorities and have also received an imprimatur of judicial decisions which have been referred to before. Sir John Woodrnffe in his 'The Law Relating to Injunctions' (Tagore Law Lectures, 1897) observed in Chapter TIT, Section 35 that 'the power to issue an ex parte injunction no doubt exists but the greatest care should be employed in its exercise'. It has also been observed in Halsbury's 'Laws of England' (3rd Edn.) Vol. 21, Section 763 that 'in cases of interlocutory injunctions in aid of the plaintiff's plaintiff's right, all that the Court usually has to consider is whether the case is so clear and free from objection on equitable grounds that it ought to interfere ............ without waiting for the right to be finally established.' It is of course difficult to lay down any general rule and the ultimate consideration depends on a variety of circumstanccs. I would also refer to Section 815 wherein it has been observed by Halsbury that 'an injunction will not, in general be granted without notice' and that 'the granting of ex parte injunction is the exercise of a very extraordinary jurisdiction.' Mr. Chakravorty has further contended in this context that in the facts and circumstances of the case, it cannot be held that the learned Munsif in passing the order impugned had acted in the exercise of his jurisdiction, 'illegally or with material irregularity' as alleged or at all. In this context he referred to the case of Keshab Chandra Datta v. Ballygunge Estate Pvt. Ltd. reported in : AIR1972Cal221 wherein the Division Bench laid down at p. 222 that 'unless the error is a jurisdictional error, either of law or of fact, while exercising our powers under Section 115 of the Code, we cannot interfere with the order passed by him.' The principles in this context are now well-settled. The observations of Sir Barnes Peacock in the case of Rajah Amir Hassan Khan v. Sheo Baksh Singh reported in (1884) 11 Ind App 237 that 'whether they decided rightly or wrongly, they had jurisdiction to decide the case; and even they decided wrongly they did not exercise their jurisdiction illegally or with material irregularity', have been approved of in a series of decisions later on. Sir John Beaumont did so in two cases, namely, in the cases of N. S. Venkatagiri Ayyangar v. Religious Endowment Board, Madras reported in 76 Ind App 67 = (AIR 1949 PC 156) and Joy Chand Lal Babu v. Kamalksha Chaudhury reported in 76 Ind App 131 at p. 139 = (AIR 1949 PC 239). The cloud if any has finally been removed by the observations of Mr. Justice Mahajan (as his Lordship then was) in the case of Keshardeo Chamaria v. Radha Kishan Chamaria reported in : 4SCR136 that the words 'illegally' and 'material irregularity' do not refer to the decisions arrived at but to the manner in which it has reached. The errors contemplated relate to material defects of procedure and not to errors of either law of fact after the formalities which the law prescribes have been complied with. Mr. Chakravorty further submitted that the present annlication is not also maintainable under Article 227 of the Constitution of India, the provisions whereof are more circumscribed, He referred to the case of the Maharashtra State Road Transport Corporation v. Babu Goverdhan Regular Motor Service Warora reported in : 2SCR319 wherein it was observed by Mr. Justice Vaidialingam delivering the judgment of the Court at p. 1929 that 'under Article 226 the High Court has power to quash an order when the error committed by a Tribunal or authority is one of law and that is apparent on the face of the record. Similarly the powers of judicial supervision of a High Court under Article 227 of the Constitution are not greater than those under Article 226 and must be limited to seeing that the Tribunal functions within its authority.' I agree with Mr. Chakravorty and I hold that in the facts and circumstances of the case the present application does not come within the ambit of Section 115(c). Civil P. C. or under Article 227 of the Constitution of India. On an anxious consideration of the facts and circumstances of the present case. I ultimately hold that the refusal to grant an ad interim order by the learned Munsif at the stage reached before a consideration of the substantive application for injunction, has not been unwarranted and untenable. The third and last dimension also of Mr. Roychoudhury's contention accordingly fails.
7. Besides his replies, as above, to the grounds urged by Mr. Roychoudhury in support of the Rule, Mr. Noni Coomar Chakravarty also raised two other points in opposing the Rule. The first dimension of his contention in this context is that the suit filed by the plaintiff-petitioner in the Court below, being Title Suit No. 195 of 1972, is not maintainable in law, inasmuch as on ultimate analysis, the subject-matter of the dispute, relates to contracts of personal service. Mr. Chakravorty in this connection referred to the case of Executive Committee of U. P. State Warehousing Corporation Lucknow v. Chandra Kiran Tyagi, reported in : (1970)ILLJ32SC . Mr. Justice Vaidialingam delivering the judgment of the Court observed at p. 1251 that 'A contract for personal service will not be enforced by an order for specific performance nor will it be open for a servant to refuse to accept the repudiation of a contract of service by his master and say that the contract has never been terminated. The remedy of the employee is a claim for damages for wrongful dismissal or for breach of contract.' His Lordship further held that 'This is the normal rule and that was applied in Barbar's case 1958 (1) All ER 322.' Mr. Chakravarty further referred to the case of Indian Air Lines Corporation v. Sukhdeo Rai, reported in : (1971)ILLJ496SC , wherein Mr. Justice Shelat delivering the judgment of the Court observed at p. 1833 that 'but all rules and regulations made by authorities in pursuance of a power under a statute do not necessarily have the force of law ............ If validly made such a bye-law has the force of law within the sphere of its legitimate operation.' The Supreme Court proceeded to observe that 'The regulations contain the terms and conditions which govern the relationship between the corporation and its employees. Though made under the power conferred by the statute, they merely embody the terms and conditions of service in the Corporation but do not constitute a statutory restriction as to the kind of contracts which the Corporation can make with its servants or the grounds on which it can terminate them.' It was ultimately held that the case before the Supreme Court accordingly did not fall under any of the three well-recognised exceptions and therefore the respondent was only entitled to damages and not to the declaration that the dismissal was null and void. A further reference was made by Mr. Chakravarty to the case of Vidya Ram Misra V. The Managing Committee, Shri Jai Narain College reported in : (1972)ILLJ442SC . Mr. Justice K. K. Mathew delivering the judgment Of the Supreme Court observed at p. 1455 that 'to put it in other words, the terms and conditions of service mentioned in Statute 151 have proprio vigore no force of law. They become terms and conditions of service only by virtue of their being incorporated in the contract. Without the contract, they have no vitality and can confer no legal rights.' It was further observed that 'Statute 151 does not lay down any procedure for removal of a teacher to be incorporated in the contract, so, Clause 5 of the contract can, in no event, have even a statutory flavour and for its breach, the appellant's remedy lay elsewhere.' On a consideration of the facts and circumstances of the present case and in view of the averments made in the plaint, the dispute according to Mr. Chakrabartti ultimately related to a contract of personal service and accordingly the application for injunction itself was not maintainable. Mr. Roychoudhury joined issue and submitted that the facts are distinguishable and the present suit is quite maintainable in law. He further submitted that this is a new point not raised in the Court below by the defendants-opposite parties. A decision on this point is however not necessary in view of the ultimate order going to be passed and it is left open for being decided by the learned Munsif in accordance with law.
8. The second dimension of Mr. Chakravarty's contention is based on the findings arrived at by the learned Munsif in his order dated 5th October, 1972 to the effect that the prayer for injunction as filed by the plaintiff is based on a different cause of action which should have been made the subject-matter of a separate suit. The steps of reasoning of Mr. Chakravarty in this behalf are that the cause of action which forms the subject-matter of the prayer for ad interim injunction is different from that forming the subject-matter of the Title Suit No. 195 of 1972; that a reference to the record would make it abundantly clear that the suit instituted had challenged the order of transfer from one department to another and the prayer for injunction which is only an ancillary one referred to the same; that the present prayer for interim injunction is to restrain the defendant-opposite parties from giving effect to the order of suspension dated the 23rd June, 1972 that was passed much after the 30th March, 1972 when the present suit was instituted. Mr. Roychoudhury ap-pearinc on behalf of the plaintiff-petitioner contended however that the present application for injunction does come within the ambit of an ancillary order subsequent to the order of transfer and as such it is a relevant one for which a separate suit need not be instituted. There are cases in support of both the views including that of Rai Charan Mandal v. Biswa Nath Mandal reported in 20 Cal LJ 107 -- (AIR 1915 Cal 103) where Sir Asutosh Mookerjee delivering the judgment of the Division Bench observed that 'A suit is to be tried in all its stages on the cause of action as it existed at the date of its commencement. An exception to this rule, namely, that a Court may take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions, is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties.' The determination again on this point is not necessary in view of the findings already arrived at before and I leave it open for decision by the learned Munsif at the time of disposing of the substantive application for injunction under Order 39, Rules 1 and 2, Civil P. C. I make it only clear that I have made no observations on the merits.
9. In the result, I discharge the Rule; uphold the order dated 5th October, 1972 passed by Shri D. Dutta Gupta, Munsif, 5th Court, Alipore in Title Suit No. 105 of 1972, rejecting the prayer for ad interim injunction made on behalf of the plaintiff-petitioner; and T direct that the petition under Order 39, Rules 1 and 2 shall be disposed of expeditiously and in accordance with law, giving an opportunity to the defendants to file their objection within three days of the date of receipt of notice of the arrival of the records in the Court below and to the plaintiff, to file his reply thereto, if any, within two days thereafter; and dispose of the application for injunction within seven days after the said period.
10. There shall be no order as to costs.
11. The order shall go down expeditiously.