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1976 DIGILAW 32 (BOM)

Tardeo Airconditioned Market Bldg Co-op. Society Ltd. and others v. Satyanaran G. Vyas

1976-02-02

R.M.KANTAWALA

body1976
Judgment R.M. KANTAWALA, J.:---The petitioners have filed this revision application against the order passed by the learned Judge of the Court of Small Causes at Bombay restraining them from prosecuting or taking any steps in a case pending before the Officer on Special Duty of the Registrar, Co-operative Societies, Bombay. The respondent has filed a suit for a declaratory relief that he is a tenant and other consequential reliefs. In this suit an ad interim injunction was granted by the learned Judge restraining the defendants (i.e. the petitioners) from prosecuting or taking any steps in the proceedings pending before the Officer on Special Duty under the Co-operative Societies Act and it is against this order that the present revision application is filed. 2. Mr. Naik, on behalf of the petitioner contended that the Court of Small Causes at Bombay has no jurisdiction to interfere with the proceedings pending before the Officer on Special Duty and the learned Judge was in error in granting the ad interim injunction especially when in such an application even interim injunction cannot be granted. On the other hand, Mr. Vyas on behalf of the respondent has contended that the revision application is not maintainable and he has relied upon a decision of my brother Naik J. (Mrs. Silvane v. Mohomedbhoy J.M. Rowjee)1, Civil Revision Application No. 491 of 1959, decided on 19/21-7-1960, Naik J., (Bom). He submitted that as an interim injunction granted by a single Judge of the Court of Small Causes at Bombay is subject to appeal before a Bench of that Court, the revision application is not maintainable. He has also drawn my attention to the fact that this is merely an ad interim injunction and this Court should not interfere at this stage. 3. Powers of revision of this Court can be exercised in a case which has been decided by a Court subordinate to the High Court and in which no appeal lies thereto provided there is an error of jurisdiction as contemplated by section 115 of the Code of Civil Procedure. It is urged by Mr. Vyas that against an order of ad interim injunction granted by the learned Judge an appeal lies to the Bench of the Court of Small Causes at Bombay and therefore a revision application is not competent. Upon a true construction of section 115 of the Code such a contention cannot be accepted. It is urged by Mr. Vyas that against an order of ad interim injunction granted by the learned Judge an appeal lies to the Bench of the Court of Small Causes at Bombay and therefore a revision application is not competent. Upon a true construction of section 115 of the Code such a contention cannot be accepted. Under that section the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto. The question to be considered is, is it a case where an appeal lies to the High Court? Neither against an ad interim order or the final order that may be passed by the Bench an appeal will lie to the High Court. The word "thereto" pre-supposes that it must be a case in which an appeal does not lie to the High Court and against an order of ad interim injunction whether confirmed or reversed by the Bench no appeal will lie to the High Court. Therefore, this contention of Mr. Vyas cannot be accepted. 4. Mr. Vyas, however, referred to the decision of my brother Naik, J. in (Mrs. Silvane v. Mohomedbhoy J.M. Rowjee)1, Civil Revision Application No. 491/1959, dt. 19/21-7-1960, Naik J., (Bom). Actually the question of interpretation of section 115 of the Code has not been considered by the learned Judge. The only question that was canvassed before the learned Judge was that the impugned order was subject to appeal to a Bench of the Court of Small Causes and that point was conceded by the Counsel for the petitioner. However, in that case the question of interpretation of section 115 of the Code was not gone into and the Court had no occasion to consider whether appeal would lie to the High Court at any stage. Actually such a question is almost concluded by a decision of the Supreme Court in the case of (S.S. Khanna v. P.J. Dillon)2, A.I.R. 1964 S.C. 497. Actually such a question is almost concluded by a decision of the Supreme Court in the case of (S.S. Khanna v. P.J. Dillon)2, A.I.R. 1964 S.C. 497. It is there held that if 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. The ratio of this decision of the Supreme Court clearly shows that if neither against the order of ad interim injunction nor an order that may be passed by the Bench of the Court of Small Causes an appeal lies to the High Court powers of revision under section 115 can always be exercised. The contention of Mr. Vyas is therefore directly negatived by this decision. 5. It has been decided in more than one case of this Court that the Court of Small Causes at Bombay has no jurisdiction to grant an interim injunction restraining a party before it from proceeding with a case pending before the Officer on Special Duty under the Co-operative Societies Act. Undoubtedly in the present case the petitioners have come at the stage of ad interim injunction, but if upon final hearing of the application interim injunction cannot be granted, then it is quite evident that the learned Judge ought not to have granted the ad interim injunction. That such is the clear position in law appears from the judgment of Vaidya, J. in (Udyog Mandir Premises Co-operative Society Ltd. v. M/s. Contessa Knit Wear)3, 76 Bom.L.R. 735. If an interim injunction cannot be granted a fortiori an interim injunction cannot be granted. 6. In the result, the revision application is allowed. The Rule is made absolute. The ad interim injunction granted by the trial Court is vacated. There will be no order as to costs. -----