STATE OF WEST BENGAL v. Pranjiban Dey — 1975 DIGILAW 230 (CAL)

JUDGMENT 1. THIS is an appeal from the judgment of Mr. Justice A. N. Sen, delivered on June 16, 1975 on an application under Article 226 of the Constitution. The respondents in this appeal had asked for a writ in the nature of Mandamus directing the State of West Bengal and others and each of them to forbear from making any or further construction of buildings and/or shop rooms in the gardens aid open space in the market known as Dr. B. C. Roy Market as indicated in the copy of the plan annexed to the petition. The respondents had also asked for a Writ in the nature of Mandamus commanding the state of West Bengal and other and each of them not to erect or construct any building or shop rooms in any portion of the market and to give any lease or licence or permission to any additional traders or businessmen who were not carrying on business therein. The respondents had also asked for a Writ in the nature of Prohibition. 2. THE case of the respondents is that they have taken lease of shop rooms in the market on the basis of certain representations. These representations were made to them orally. The representation would be established by the copy of the plan they had annexed to their petition, a copy of the plan has been on display in the market premises for more than twenty years. In the trial court the respondents obtained a Rule nisi and an interim order of injunction restraining the State of West Bengal and others from proceeding to make any further construction pending the rule. When the rule came up for hearing, on a proper consideration of relevant materials, a. N. Sen, J. was of opinion that the respondents should be relegated to a suit for establishing their claim particularly for establishing the representations alleged to have been made to them by the Executive Engineer of the Government on behalf of the authorities concerned. The learned judge was further satisfied on the materials on record that the respondents should be given a reasonable opportunity to file a suit for establishing their claim. In this view of the matter the learned judge became inclined to extend the interim order of injunction for a period of three months from June 16, 1975. The learned judge was further satisfied on the materials on record that the respondents should be given a reasonable opportunity to file a suit for establishing their claim. In this view of the matter the learned judge became inclined to extend the interim order of injunction for a period of three months from June 16, 1975. The reason for extending the interim order for three months was that the respondents would serve in the meantime a notice under sec. 80 of the Code of Civil Procedure before filing a suit. The learned judge has observed further that if before the suit is instituted, construction is completed, a good deal of unnecessary complications will arise and the case of the respondents may, to a great extent be prejudiced in case they ultimately succeed in the suit. There may be questions of demolition of structures involving various complications and a good deal of inconvenience to the parties. 3. TAKING all these factors into consideration the learned trial judge passed an order that the interim order of injunction already granted would continue for a period of three months. He, however, discharged the rule that was issued. 4. THE main controversy before us is whether after discharging the rule without going into the merits of the case, the learned judge had jurisdiction to continue the interim injunction for a period of three months in order that the respondents could institute a proper suit in, the appropriate court after giving notice under Sec. 80 of the code of Civil Procedure. On behalf of the appellants strong reliance has been placed on the supreme Court judgment in the State of Orissa v. Madan Gopal Rungta, reported in A. I. R. 1952 S. C. 12. In that case the respondent presented a petition praying for a Mandamus against the appellants. Without expressing any opinion on the rival contentions of the parties, the High Court said that there was a case to be tried and since "at the moment" the respondents had no adequate alternative remedy having regard to Sec. 80 of the Code of Civil Procedure, they would suffer irreparable damage without an interim injunction. Accordingly, the petition was disposed of by granting an interim stay of three months to enable the respondents to give the requisite notice under Sec. 80 and to file a suit. Accordingly, the petition was disposed of by granting an interim stay of three months to enable the respondents to give the requisite notice under Sec. 80 and to file a suit. A subsequent order passed by the Court made it clear that except for giving the respondents some interim measure of relief for a period during which they ware without a remedy "we are not inclined to accept the petition and issue a Writ in the nature of Mandamus". The supreme Court set aside the orders of the High Court, because ". . . . . . the existence of a right is the foundation of the exorcise of jurisdiction of the Court under this article. " (i. e. Art. 226. The Supreme Court says : "in our opinion, Article 226 cannot be used for the purpose of giving. interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of s. 80 of the Civil procedure Code, and in our opinion that is not within the scope of Article 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available tie the party on final determination of his rights in a suit or proceeding. If the court was of opinion that there was in other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case off. its merits and come to a decision as to whether the petitioner succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a Writ of Mandamus or any other directions of a like nature and pending such determination it might have made a suitable interim order for maintaining the Status Quo ante. " (Vide pages 13 and 14 of the Report. 5. COUNSEL for the appellants has urged before us that this decision of the Supreme Court was a bar to the order which has been passed by Mr. Justice A. N. Sen. The learned trial judge had not gone into the merits of the case He discharged the rule but at the same time to enable the respondents to file a suit, he gave an interim relief as the only and final relief which was not permissible. Justice A. N. Sen. The learned trial judge had not gone into the merits of the case He discharged the rule but at the same time to enable the respondents to file a suit, he gave an interim relief as the only and final relief which was not permissible. It has been submitted to us that following the above supreme Court judgment, the interim injunction granted by Mr. Justice Sen should be vacated. 6. AS against this contention of counsel for the appellants Mr. A. N. Bose appearing for the respondents has urged that the Supreme Court decision in Madan Gopal Rungta's case is not binding on the Calcutta High Court. Learned counsel's point is that the calcutta High Court being a Chartered high Court has inherited by reason of successive enactments various powers of the Court of Equity in England. Our attention was drawn to the relevant provisions of the following enactments : - (a) The Regulating Act, 1773, (b) The Charter dated the 26th march; 1774, (c) The Act establishing High Court in 1861, (d) The Letters Patent dated the 14th May, 1862, (e) The Fresh Letters Patent dated the 28th December, 1865, (f) The Government of India (Consolidating) Act, 1915, (g) The Government of India Act 1935 and (h) Articles 225. 396 and 372 of the Constitution. The whole purpose of inviting us to consider these provisions was to convince us that this High Court has powers which the Orissa High Court did not possess. This High Court, it is urged having inherited the powers enjoyed by the Court of Equity before the judicature Act, 1873, can grant interim relies even though the action itself is dismissed. 7. THE leading case on which Mr. Bose relied is the case of Polini v. Gray, reported in 12 Ch. Div. 438. A decree was made in three suits for the administration of the personal estate of an intestate. The decree directed the usual enquiry as to her next of kin. A certificate was made finding five persons who were residents abroad to be next of kin. An order was made for distribution of the fund in Court amongst these five persons. S, who had not been a party to the proceeding, applied by motion to stay the distribution of the fund, alleging herself to be the next of kin. A certificate was made finding five persons who were residents abroad to be next of kin. An order was made for distribution of the fund in Court amongst these five persons. S, who had not been a party to the proceeding, applied by motion to stay the distribution of the fund, alleging herself to be the next of kin. The Vice Chancellor suspended the giving out of the order and directed his Chief Clerk to enquire whether S had made out a prima facie case. The chief Clerk finding she had not made out a prima facie case, the Vice Chancellor directed the order to be given effect to without prejudice to any independent proceeding by S. Four of the five shares were at once transferred to four persons found entitled. The fifth remained in Court. Two of the shares which had been transferred were sold out. The proceeds were received by the vendors. S then commenced an action. In this action she obtained an order granting an injunction to restrain in dealing with the three shares which had not been sold and directing an enquiry who were the next of kin and this order was subsequently directed to be taken as made in the three suits as well as in the action. The Chief Clerk again found the family of the aforesaid five persons to be the next of kin. The action and summons to vary the certificate were heard before the Vice Chancellor who dismissed the summons and the action but continued the injunction in the three cases until further orders. S appealed and the Court of Appeal affirmed the decision of the Vice Chancellor dismissing her bill but S being about to appeal to the House of Lords, it was held that as, if S ultimately succeeded in the House of Lords, her success would be useless unless the fund was protected in the mean time, the injunction ought to be continued pending the appeal. 8. IN this case, therefore, the litigant lost before the Court of Appeal on merits. The litigant wanted to prefer an appeal to the House of lords. The Court of Appeal felt that if the appeal to the House of Lords succeeded and in the mean time the assets were lost the appellant would suffer irreparable loss. 8. IN this case, therefore, the litigant lost before the Court of Appeal on merits. The litigant wanted to prefer an appeal to the House of lords. The Court of Appeal felt that if the appeal to the House of Lords succeeded and in the mean time the assets were lost the appellant would suffer irreparable loss. In those circumstances the Court of Appeal granted an injunction, the purpose whereof was the maintenance of the status quo pending the appeal to the House of lords. Mr. A. N. Bose, counsel for the respondents, has argued before us that the learned trial judge in the instant case was within his rights to exercise a similar power. If an injunction can be granted pending an appeal to the House of Lords, an injunction can also be granted pending the filing of a suit in an appropriate court. On principle according to Mr. Bose, there is no difference between the two. Mr. Bose has placed very strong reliance on certain observations of Lord Justice cotton in Poplins case. At page 446 lord Justice Cotton says :- "i see no difference in principle between staying the distribution of fund to which this Court has held the plaintiff not to be entitled, and staying the execution of an order by which the Court has decided that a plaintiff is entitled to a fund. In that case, as in this case, the court pending an appeal to the house of Lords, suspends what is declared to be the right of one of the litigant parties. On what principle does it do so? It does so on this ground, that when there is an appeal about to be prosecuted the litigation is to be considered as not at an end, end that being so, if there is a reasonable ground of appeal, and if not making the order to stay the execution of the decree or the distribution of the funds would make the appeal nugatory, that is to say, would deprive the appellant, if successful, of the results of the appeal, then it is the duty of the Court to interfere and suspend the right of the party, who, so far as the litigation has gone, has established his rights. That applies, in my opinion, just as much to the case where the action has been dismissed as to the case where a decree has been made establishing the Plaintiff's title. " 9. MR. Bose's contention is that the power of granting injunction which was exercised in Polini's case was a power enjoyed by a Court of Equity before the Judicature Act of 1873. He relies on a passage in Kerr on Injunctions - 6th Edition at pages 29-30. The learned author states: "the Court may, however, extend the operation of the injunction for a given time if there is danger of irreparable mischief being done in the meantime and to enable the defendant to appeal; and the Court may, on a proper case being made out, restrain by injunction all dealings with a fund pending an appeal to the house of Lords although the Court has decided against the title of the plaintiff and dismissed the action. " 10. IT does not appear to us that the power that was exercised in Polini's case was a power enjoyed by the old Court of Equity. This would be apparent from the judgment of Jessel M. R. which was the leading judgment in Polini's case. The Master of Rolls has observed at page 443 : "the plaintiffs allege that the appeal will be nugatory if the fund is paid out to the Defendants, and that if the plaintiffs should ultimately succeed in the House of lords, that success will be useless to them unless an interim order is made for preserving the fund. I say if they so contend, and assuming that contention to be correct in fact the question is, whether this court has jurisdiction to prevent such a consequence. It appears to me on principle that the Court ought to possess that jurisdiction because the principle which underlies all orders for the preservation of property pending litigation is this, that the successful party in the litigation, that is, the ultimately successful party, is to reap the fruits of that litigation and not obtain merely a barren success. That principle, as it appears to me applies as much to the Court of first instance before the first trial and to the Court of Appeal before second trial as to the Court of last instance before the hearing of the final appeal. That principle, as it appears to me applies as much to the Court of first instance before the first trial and to the Court of Appeal before second trial as to the Court of last instance before the hearing of the final appeal. The rule under the Judicature Act is Rule 3 of order LII, which is this : "it shall be lawful for the Court or judge upon the application of any party to an action and upon such terms as may seem just to make any order for the detention, preservation, or inspection of any property being the subject of such action. " Jessel M. R., has made it clear that the power to grant an injunction for maintenance of status quo pending an appeal is a power derived from the judicature Act - Rule 3 of Order LII. In Kerr on Injunction also, 6th edition, at page 654 it is stated: "by R. S. C. Ord. L, R. 3, power is giver, to the Court or a Judge, upon the application of any party to a cause or matter, and upon such terms as may seem just, to make any order for the detention, preservation, or inspection of any property being the subject of such cause or matter. . . . . . . :" in the next paragraph it is observed : "under this rule the Court has restrained a party from dealing with a fund pending an appeal. " 11. THE case cited under the above observations is the case of Polini v. Gray. This shows that a power of this nature could be exercised under R. S. C ord. L, x. 3. It cannot, therefore, be said that this is a power derived, from the old Court Equity. In any event the significance of this argument loses its force after the Judicature Act of 1873. 12. THE case of Polini v. Gray was followed in Orion Property Trust Ltd. v. Du Cane Court, reported in 1c32 a. E. R. 466, as well as in Erin ford properties Ltd. v. Cheshire County council, 1974-2 All E. R. 448. We are not discussing in details the principles enunciated in these two cases because they are the same as those in Polini v. Gray. We are not discussing in details the principles enunciated in these two cases because they are the same as those in Polini v. Gray. We are, therefore, of opinion that in the matter of granting injunctions or interim orders pending an appeal this Court does not, by virtue of its long history, enjoy any powers which the Orissa High Court does not enjoy. 13. COUNSEL for the respondents has also tried to distinguish the Orissa case which went to the Supreme Court and this case on another ground. He says that in the Orissa case even a rule nisi why not issued. In our case a rule nisi was issued as the Court was satisfied that the petitioners had made out a prima, facie case and after the rule was issued the learned Trial Judge took into consideration all the relevant materials and came to the conclusion that the proper procedure for deciding the controversy between the parties, was a suit instituted in an appropriate court. We do not think this distinction is of any consequence. In both the cases the applications under Article 226 were dismissed and the Courts passed orders for maintenance of status quo to give opportunities to the applicants to file suits after service of notice under section 80 of the Civil Procedure code. 14. IN our country an order of injunction may be granted under different provisions of the Code of Civil Procedure. Firstly, Under Sec, 94 (c) and (e) in order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, (i. e. under the Rules. (1) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold. (2) make such interlocutory orders as may appear to the Court to be just and convenient. Secondly the power of injunction has been codified in Order 39, Rule 1 (b) in this form : "order 39 (1) - Where in any suit it is proved by affidavit or otherwise -. . . . . . . . (2) make such interlocutory orders as may appear to the Court to be just and convenient. Secondly the power of injunction has been codified in Order 39, Rule 1 (b) in this form : "order 39 (1) - Where in any suit it is proved by affidavit or otherwise -. . . . . . . . (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a. temporary injunction to rest-aim such act, or make such other order for the purpose of staying and ore venting the wasting, damaging, alienation, sale, removal or disposition, of the property as the Court thinks fit until the disposal of the suit or until further orders. " Then again under Order 41, rule 5 (2) "when an application is made for stay of execution of an appeasable decree before the expiration of tine time allowed for appealing there from the Court which passes the decree may on sufficient cause being shown order the execution to be stayed. " 15. LASTLY, there is the power of granting injunction given to every court in the exercise of its inherent power under Sec. 151 of the Code of civil Procedure. 16. IN the case of Nund Kishore singh v. Ram Golam Sahu (16 C. L. J. 508), a Division Bench consisting of sir Asutosh Mukherjee and Mr. Justice holm wood went into the question of the court's inherent power of granting injunctions. Mr. Justice Mukherjee was of the view that a Court had inherent power to stay proceedings pursuant to its own order in view of an intended appeal even though there was no express statutory provision in that behalf. His Lordship has said further that the High Court is competent to make an order for stay of proceedings in execution of its decree in view of an application by the judgment-debtor to the Judicial Committee for special leave to appeal to His Majesty in Council. The stay, however, can be granted only for a limited time, and on terms. Holm wood J. has said that the stay of proceedings in execution of decree, which the law does not expressly authorise, is not to be allowed except on very good grounds shown to the satisfaction of the court. The stay, however, can be granted only for a limited time, and on terms. Holm wood J. has said that the stay of proceedings in execution of decree, which the law does not expressly authorise, is not to be allowed except on very good grounds shown to the satisfaction of the court. It has been held in this case that Sec. 151 of the Code of Civil Procedure does not lay down any new principal, but merely declares that the court has inherent power to make such orders as might be necessary for the ends of justice or to prevent abuse of the process of the Court. This inherent power is not capriciously or arbitrarily exercised; it is exercised ex debito Justitiae to do that real and substantial justice for the administration of which alone the Court exists. This case was decided as early as 1912 17. IT is apparent, therefore, that high Court in India always Lave the power of granting interim injunction in the exercise ox inherent jurisdiction under Sec. 151 of the Code. In this respect there is no difference between the power the Calcutta high Court and the power of the Orissa High Court 18. IN the instant case A. N. Sen J. may be right in thinking that he should continue the interim injunction for throe months for preservation of the property to enable the respondents to file a suit in a proper court, but unfortunately in view of the Supreme Court judgment in Madan Gopal Rungtas case it appears to us that that course was not open to the learned Judge. Mr. A. N. Bose referred us to the Supreme Court decision in Umeg singh. and Ors. vs. State of Bombay and ore. A. I. R. 1955 S. C. 540. Several petitions were the subject matters of this appeal. We are. however, concerned with petition No. 364 of 1954 which has been dealt with at pages 548 and 549 of the report. In paragraphs 20, 21 and 22 the observations of the supreme Court are opposite for our purpose. These paragraph- are as follow : " (20) These allegation and counter-alienations do not however carry the matter any further. We are. however, concerned with petition No. 364 of 1954 which has been dealt with at pages 548 and 549 of the report. In paragraphs 20, 21 and 22 the observations of the supreme Court are opposite for our purpose. These paragraph- are as follow : " (20) These allegation and counter-alienations do not however carry the matter any further. In order to exclude Moti Moree and the petitioner from the operation of the Impugned Act it will be necessary for the petitioner to establish satisfactorily that Moti moree is not a Jagir within the definition thereof given in the impugned Act. Even though the allegations of the petitioner go far enough to make it probable that moti Moree was nether held by the petitioner and his ancestors under a grant or was not recognized as a grant by the Ruler of the erstwhile State of Idar that would not be enough 1o enable us to grant him the relief prayed for by him. The question requires to be a completely thrashed out and adjudicated upon by a Court of Law after going into the evidence adduced before it by both the parties. The learned Attorney General appearing for the State of Bombay has therefore submitted that this question should be enquired into by a proper tribunal and the petitioner should be referred to a civil suit in order to establish his rights. (21) We accordingly feel that the petition No. 364 of 1954 should be adjourned till after the disposal of a civil suit to be filed by the petitioner in the proper Court for a declaration that Moti Moree is not a Jagir within the definition of the term as given in the impugned act and for consequential relief. The learned Counsel for the petitioner has given us to understand that e formal notice under Section 80 of the C. P. C. in this behalf has already been served by the petitioner on the State of Bombay. We therefore order that the petitioner do file the necessary suit within 3 months from this date and this petition do stand adjourned till after the hearing and final disposal of that suit. The stay granted by this Court in this petition will continue in the meanwhile. We therefore order that the petitioner do file the necessary suit within 3 months from this date and this petition do stand adjourned till after the hearing and final disposal of that suit. The stay granted by this Court in this petition will continue in the meanwhile. We may record here that the learned Attorney-General on behalf of the State of Bombay has also given his undertaking not to take any steps against the petitioner in the meanwhile. (22. Petition No. 364 of 1954 will stand adjourned 'sine die' till after the disposal of the civil suit to be filed by the petitioner as above indicated. If no such suit is filed within the aforesaid period this petition will also stand dismissed. * * * 19. MR. Bose has emphatically urged that the Supreme Court in the later decision in Umeg Singh's case has given a go-by to its previous stand in madan Gopal Rungta's case. In Umeg singh's case the Supreme Court kept a writ petition pending till after the disposal of the civil suit to be filed by the petitioner. The Supreme Court also ordered that the Stay granted by the court in the petition will continue in the meanwhile. He invited us to follow the Supreme Court's decision in umeg Singh's case in preference to the decision in Madan Gopal Rungta's case. 20. WE are unable to agree with mr. Bose. Firstly, it appears that in umeg Singh's case the Attorney-General submitted that the question should be enquired into by a proper tribunal and the petitioner should be referred to a civil suit in order to establish his right. Secondly, the Attorney-General on behalf of the State of Bombay gave an undertaking not to take any steps against the petitioner in the mean-while. It is, in these circumstances that the Supreme Court ultimately decided to keep the entire matter including the injunction pending till the disposal of the suit. Moreover, in Madan Gopal Rungta's case the principle on which the court cannot grant an injunction after discharge of the Rule has been discussed. No such principle has been discussed in Umeg singh's case. Finally, we want to point out that Madan Gopal Rungta's case was again considered by the Supreme court in State of Orissa vs. Ram Chandra Dev A. I. R. 1964 S. C. 685. No such principle has been discussed in Umeg singh's case. Finally, we want to point out that Madan Gopal Rungta's case was again considered by the Supreme court in State of Orissa vs. Ram Chandra Dev A. I. R. 1964 S. C. 685. This was also a case of the Orissa High Court in which the High Court took more or less the same course. At page 688 paragraph 10 Gajendragadkar J. delivering the judgment has observed : "it is somewhat remarkable that a similar problem had been posed for the decision of this Court in 1952 by a similar order passed by the Orissa High Court itself. In state of Orissa vs. Madan Gopal rungta, 1952 S. C. R. 28: (A. I. R. 1952 S. C. 12) mining leases granted by the Ruler of Keonjhar between 1941 and 1947 had been terminated by the Orissa Government and the grantees had been given temporary permits to work the mines in 1949. Thereafter, the said temporary permits were cancelled and the grantees were directed to remove their estates appertaining to the respective mines within a fortnight. As a result of this order passed against them, the grantees moved the High Court under Art. 226 and the High Court issued a writ of mandamus restraining the government of Orissa from interfering with the possession of the grantees in regard to the mines in question. This writ was issued to enable the grantees to file a suit alter notice under S. 80 C. P. C. The order directed the Government of orissa not to disturb the possession of the grantees till three months from the date of the order, or one week after the institution of the grantee's contemplated suit, whichever is earlier. On the happening of the event there contemplated the orders were to cease to be operative. In dealing with the validity of these orders, this Court observed that it was outside the jurisdiction of the High Court under art. 226 to issue a writ solely for the purpose of granting an interim relief to the party who moved the High Court under Art. 226. In dealing with the validity of these orders, this Court observed that it was outside the jurisdiction of the High Court under art. 226 to issue a writ solely for the purpose of granting an interim relief to the party who moved the High Court under Art. 226. It is in that connection that this Court observed that an interim relief can be granted only in aid of and as auxiliary to the main relief which may be available to the party on final determination of his rights in a suit or proceedings under Art. 226. It would thus be noticed that when the Orissa High Court purported to issue a writ under Art. 226 in favour of the grantees of the mining leases issued in their favour by the Ruler of Keonjhar and gave them adequate relief by issuing a writ without deciding the question of title, this Court corrected the error and set aside the High Court's orders. In our opinion, what the High Court has done in the present cases is substantially similar to what had been done in the case of Madan Gopal Rungta, (A. I. R. 1952 S. C. 12)". 21. IN 1964, therefore, the Supreme Court once again affirmed the principle that an interim relief can be granted only in aid of and as auxiliary to the main relief which may be available to the party on final determination of his rights in a proceeding under Art. 226 and not otherwise. In the instant case the relief that was granted by the learned trial Judge was not in aid of or auxiliary to the main relief that the petitioners were entitled to in the application Under article 226. In these circumstances, in view of the Supreme Court's decision in Madan Gopal Rungat's case and in Ram Chandra Dev's case, we have to set aside the order of the learned trial Judge. In the result, this appeal is allowed. The judgment and order appealed from in respect of he injunction are set aside. There would be no order as to costs. By consent of parties the connected appeal is reacted as in the day's list and both the application and the appeal are disposed of as above. Appeal allowed.