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Ram Kissen Joydoyal Vs. Pooran Mull and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in56Ind.Cas.571
AppellantRam Kissen Joydoyal
RespondentPooran Mull and ors.
Cases ReferredO. v. Great Northern Railway
Excerpt:
specific relief act (i of 1877), section 54 - injunction, suit for--injunction, when can be granted--appeal--new point, whether can be raised at hearing. - .....koer v. kedar nath 15 ind. cas. 427 : 39 c. 704 : 16 c.w.n. 838. the suit is in essence one for a perpetual injunction and the prayers for declaration are merely anciliary thereto. thus the fundamental question for determination is, whether the court was competent to grant the injunction sought for by the plaintiffs. 4. now as was pointed out by sir arthur wilson in the case of tituram mukerji v. cohen 33 c. 203 : 32 i.a. 185 : 2 c.l.j. 408 : 9 c.w.n. 1073 : 15 m.l.j. 379 : 7 bom.l.s. 920 : 3 a.l.j. 59 : 8 sar.p.c.j. 908 (p.c.), 'the right to an injunction, depend?, in india, upon statute and is governed by the provisions of the specific belief act.' we must, therefore, examine the provisions of chapters ix and x of the act. chapter ix it headed 'of injunction generally.' section 52,.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal by the defendant in a suit for a perpetual injunction to restrain arbitration proceedings before the Bengal Chamber of Commerce Tribunal of Arbitration. The plaintiffs instituted this suit for declaration that they did not enter into the contract No. 128 with the defendant dated the 13th December 1916, that the contract is not binding on them and that they are accordingly entitled to an injunction to restrain the defendants from proceedings to arbitration pursuant to the usual arbitration clause contained in the contract. The defendants traversed all the material allegations in their written statement. The only issue raised in the Court below was whether the plaintiffs were liable on the contract. Mr. Justice Greaves, on the evidence adduced, came to the conclusion that the plaintiffs did not enter into the contract and that the same was not binding on them; he accordingly granted an injunction restraining the defendant from proceeding with the arbitration before the Bengal Chamber of Commerce.

2. On the present appeal, it has been argued that the plaintiffs, on the face of the plaint, were not entitled to the relief claimed by them. This point was not taken in the Court below and does not appear to have been raised in the memorandum of appeal presented to this Court. On behalf of the respondents, it has been argued that the point should not be allowed to be raised for the first time here. We cannot accede to this contention, because although the question cannot strictly be deemed as one of jurisdiction in the sense of competency of the Court to entertain the suit, still the objection goes to the root of the matter and raises the question whether the Court was competent to grant the relief claimed by the plaintiffs. If the Court was not competent to grant the injunction claimed by the plaintiffs, it is manifest that the decree for injunction should not be allowed to stand, merely because the point was overlooked and neither raised in the Court below nor mentioned in the memorandum of appeal presented to this Court. That the Court of Appeal cannot avoid the decision of a pure question of law of this character, which does not depend on the determination of a question of fact, and, which, besides, disputes the authority of the Court to make an order of a certain description, is clear from the decisions of the Judicial Committee in Meenakshinaidoo v, Subramaniya Sastri 14 I.A. 160 : 11 M. 26 : 5 Sar. P.C.J. 54 : 11 Ind. Jur. 393 : 4 Ind. Dec. (N.S.) 18 and Connecticut Fire Insurance v. Kavanagh (1892) A.C. 473 at p. 480 : 61 L.J.P.C. 50 : 67 L.T. 508 : 57 J.P. 21.

3. In the plaint the plaintiffs asked for the following reliefs: 'For a declaration that the plaintiffs did not enter into the said alleged contract and the same is not binding on them, for a declaration that there was no submission to arbitration by the plaintiffs and for an injunction restraining the defendant firm, its servants and agents from proceeding with the said arbitration before the Bengal Chamber of Commerce Tribunal of Arbitration.' It is plain that this is not a suit for a mere declaration of title without consequential relief, within the meaning of Section 42 of the Specific Relief Act. Consequently, no question arises as to the scope of that section, as explained in the judgment of Sir Lawrance Jenkins, C.J., in the case of Deokali Koer v. Kedar Nath 15 Ind. cas. 427 : 39 C. 704 : 16 C.W.N. 838. The suit is in essence one for a perpetual injunction and the prayers for declaration are merely anciliary thereto. Thus the fundamental question for determination is, whether the Court was competent to grant the injunction sought for by the plaintiffs.

4. Now as was pointed out by Sir Arthur Wilson in the case of Tituram Mukerji v. Cohen 33 C. 203 : 32 I.A. 185 : 2 C.L.J. 408 : 9 C.W.N. 1073 : 15 M.L.J. 379 : 7 Bom.L.S. 920 : 3 A.L.J. 59 : 8 Sar.P.C.J. 908 (P.C.), 'The right to an injunction, depend?, in India, upon Statute and is governed by the provisions of the Specific Belief Act.' We must, therefore, examine the provisions of Chapters IX and X of the Act. Chapter IX it headed 'Of Injunction generally.' Section 52, the first of the sections contained in Chapter IX, states that preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual, Section 53 next defines the injunctions as of two classes. The second paragraph, which is devoted to perpetual injunctions, lays down that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit. The defendant is thereby perpetually enjoined from the assertion of a right or from the commission of an Act, which would be contrary to the rights of the plaintiff. This provision consequently defines the mode in which a perpetual injunction can be granted and its restraining effect on the defendant when it has been granted. The next Chapter is headed 'Of perpetual injunctions' and opens with section - 54, which defines when perpetual injunctions can be granted. The first paragraph of the section lays down that, subject to the other provisions contained in, referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication, the next two paragraphs deal with two distinct classes of cases, namely, first, the case when the obligation arises from contract, and secondly, the case when the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of, property. In the former class of cases, the principle is formulated that the Court shall be guided by the rules and provisions contained in the Second Chapter of the Statute. In the latter class of cases, it is stated that the Court may grant a perpetual injunction in five specific categories of events. Mr. Bose, for the respondents, has not seriously contended that the prayer for injunction in the present litigation can be brought within the scope of Section 54. This is fairly clear from the opening and controlling paragraph of the section, which provides that in order to entitle a litigant to a perpetual injunction, he must establish that the injunction is required to prevent a breach of an obligation. The term 'obligation' is defined in Section 3 to include every duty enforceable by law, so that when a legal duty is imposed on one person in respect to another, that other is invested with the corresponding legal right. The first paragraph of the section thus establishes the broad and general rule that given the breach of an existing legal right which is vested in the applicant, the breach thereof may be restrained by injunction. This is an elementary principle, for as Lord Kingsdowri said in Imperial Gas Light and Coke CO. v. Broadbent (1859) 7 H.L.C. 600 at p. 612 : 29 L.J.Ch. 377 : 5 Jur. (N.S.) 1319 : 11 E.R. 239 : 115 R.R. 295 when a plaintiff applies for an injunction to restrain a violation of an alleged right, if the existence of the right be disputed, he must establish that right before he gets the injunction to prevent the recurrence of its violation. We accordingly invited the learned Counsel for the respondents to formulate the precise obligation of which there had been a breach in the case before us. But he was unable to show that there was any legal right in the plaintiffs which had been violated or bad been threatened with violation by the defendant. Consequently, it is plain that no injunction can be claimed under Section 54. Mr. Bose was thereupon con-strained to invoke the aid of the second paragraph of Section 53; he argued in substance that the right to an injunction must be determined by reference to the provisions of Section 53 and that the provisions of Section 54 should be treated as merely illustrative, We are of opinion that there is no foundation for this contention. Sections 54 and 56 must be read together, as supplementing each other. The former defines the circumstance under which perpetual injunctions may be granted; the latter enumerates the cases where an injunction must not be granted. It would, in our opinion, be an erroneous construction of the Statute to hold that the right to an injunction should be determined independently of the provisions of sections 54 and 56, by reference to the terms of Section 58. As we have already stated, the injunction in this case cannot be claimed under the provisions of Section 54. We are further of opinion that the injunction claimed should not be granted in view of the provision of Clause (i) of Section 56, which lays down that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding (except in case of breach of trust). In the case before :as, the respondents allege that they did not enter into the alleged contract. If that case is well-founded, the arbitration proceedings before the Bengal Chamber of Commerce, even if they result in an award, can only terminate in an award which would be a nullity and could not possibly affect the rights of the plaintiffs; if the arbitrators make an award in favour of the defendant (which itself is doubtful), the plaintiffs will have ample opportunity to protect themselves by an appropriate proceeding, We are clearly of opinion, on all these grounds, that the injunction claimed cannot be granted.

5. Reference was made on behalf of the appellant to the decision in North London Railway CO. v. Great Northern Railway CO. (1883) 11 Q.B.D. 30 : 52 L.J.Q.B. 880 : 48 L.T. 695 : 31 W.R. 495, which was followed by Rankin, J., in Sardarmull Jessraj v. Agar Chand Mahata & CO. 52 Ind. Cas. 588 : 23 C.W.N. 811 in support of the view that when the contract is denied, the Court will not grant an interlocutory injunction to restrain arbitration proceedings which, according to the applicant, would be null and futile. On behalf of the respondents, reliance was placed on the earlier decisions of Sir George Jessel in the cases of Beddow v. Beddow (1878) 9 Ch. D. 89 : 47 L.J. Ch. 588 : 38 W.R. 570, Malmesbury Railway Co. v. Budi (1876) 2 Ch. D. 113 : 45 L.J. Ch. 271 and Aslatt v. Corporation of Southampton (1881) 16 Ch. D. 143 : 50 L.J.Ch. 31 : 43 L.T. 464 : 29 W.R. 117 : 45 J.P. 111, which were all reviewed in the case of North London Railway CO. v. Great Northern Railway CO. (1883) 11 Q.B.D. 30 : 52 L.J.Q.B. 880 : 48 L.T. 695 : 31 W.R. 495. It is not necessary for us to deal with these cases, bacause, as we have already pointed out, the authority of the Court to grant an injunction in the present case depends on the true construction of the provisions of the Specific Relief Act.

6. The result is that this appeal must be allowed and the suit dismissed. We direst that the plaintiffs-respondents do pay to the defendant-appellant the costs of this appeal as also the costs of hearing for two days in the trial Court.

Fletcher, J.

7. I agree.


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