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1978 DIGILAW 179 (MP)

Prem Syndicate v. Rao Nihalkaran

1978-03-02

G.L.OZA

body1978
Short Note : This revision petition has been filed by the defendant-petitioner against an order of temporary injunction granted by the 4th Civil Judge Class II, Indore on 13-9-1974 and maintained on appeal by the Additional District Judge, Indore on 14-4-1975. 2. Learned counsel appearing for the petitioner contended that a temporary injunction could not be granted in the case of this kind where an order under section 168 of the M.P. Land Revenue Code is passed and has become final and no appeal was preferred by the non-applicant No. 1. It was also contended that the jurisdiction under section 168 of the Code is an exclusive jurisdiction in view of section 257(k) of the Code and the result of injunction is that execution of this order passed by a competent tribunal is being stayed by grant of temporary injunction. This, according to learned counsel, would not fall within the ambit of O.39, R.1 of CPC as it could not be said that this amounts to any injury to the plaintiff. He, therefore, contended that injunction, granted could not be maintained. 3. Learned counsel appearing for the non-applicant No.1 contended that even if the Court below has taken an erroneous view of law, errors of law could not be corrected in a revision petition under section 115 of the Code of Civil Procedure and in support of his contention learned counsel placed reliance on decisions reported in M/s. D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup Singh and others, AIR 1971 SC 2324 and N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras, AIR 1949 PC 156 . 4. Learned counsel appearing for the non-applicant No.1 also conceded that in view of the language of O.39, R.1 of CPC it will not be possible for him to contend that a temporary injunction could be granted within the jurisdiction, of the Court under O.39, R.1 of CPC; but he contended that injunction was granted under section 151 of CPC. 4. Learned counsel appearing for the non-applicant No.1 also conceded that in view of the language of O.39, R.1 of CPC it will not be possible for him to contend that a temporary injunction could be granted within the jurisdiction, of the Court under O.39, R.1 of CPC; but he contended that injunction was granted under section 151 of CPC. Held : It is clear that by temporary injunction which was granted to the non-applicant No. 1 what has been stopped is the execution of an order passed by a competent Tribunal having exclusive jurisdiction and the order of the Tribunal has become final as it was not challenged in any appeal or revision and under these circumstances the Courts below have not applied their minds to the provisions contained in O.39, R.1 of CPC or the provisions of section 151 of CPC to determine as to whether there could be a case of any injury in which injunction could be granted. 5. Looking to the language of rule 1 of Order 39, CPC learned counsel for the non-applicant No.1 frankly conceded that it would not be possible to justify the order under O.39, CPC. As apparently it is not a case of disposition wrongfully or causing any injury because what the petitioner is seeking is the execution of an order passed by a competent authority exercising exclusive jurisdiction. 6. Under section 151 of CPC the inherent powers of the Civil Court are saved but it does not confer any power to a Court to do what order-wise it is not competent to do in view of specific provisions of law. The language of section 151 of CPC is very clear. It talks of passing such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is not the case of the non-applicant No. 1 that the execution of the order passed by the Sub-Divisional Officer is an abuse of the process of the Court and it could not be contended that stopping the execution of a valid order passed by a competent authority exercising jurisdiction would be in the interest of justice. Apparently therefore, the order of injunction passed in the case could not be justified within the language of section 151 of the CPC. 7. Apparently therefore, the order of injunction passed in the case could not be justified within the language of section 151 of the CPC. 7. Admittedly, it is not the case of the plaintiff-non-applicant No.1 challenging the order of the Sub-Divisional Officer as being an invalid order or an order amounting to abuse of the process of the law. In fact the basis of the suit is declaration of title and no relief in the nature of any declaration about the order passed by the Sub-Divisional Officer is sought. 8. Learned counsel appearing for the non-applicants placed reliance on the decisions reported in AIR 1949 PC 156 and AIR 1971 SC 2324 . In AIR 1949 PC 156 their Lordships observed that an error of law could not be corrected in exercise of jurisdiction under section 115 of the CPC and in AIR 1971 SC 2324 their Lordships of the Supreme Court also enunciated the scope of Section 115 of CPC, and held:- "The position thus seems to be firmly established that while exercising the jurisdiction under section 115 it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite, clearly do not cover the present case. It was not contended, as indeed it was, not possible to contend that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings, for specific performance at the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words 'illegally' and with material irregularity' as used in this clause do not cover either errors of fact or of law, they do not refer to the decision arrived at but merely to the manner in which it is reached. Clause (c) also does not seem to apply to the case in hand. The words 'illegally' and with material irregularity' as used in this clause do not cover either errors of fact or of law, they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated this clause may, in our view, relate either to breach of some Provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under section 115 of the Code Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal." In this judgment their Lordships while considering clause (c) of section 115 of the CPC observed that "illegality" and “with material irregularity" as used in this clause do not cover either errors of fact or of law, they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our opinion, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision", and there observations are material so far as the present case is concerned. It could not be disputed that the Court below did not consider as to whether the Court below had jurisdiction under Order 39, rule 1 of CPC to grant an injunction. Apart from it, it did not consider even as to what wilt be the injury when an order passed by a competent authority exercising exclusive jurisdiction is enforced. It could not be disputed that the Court below did not consider as to whether the Court below had jurisdiction under Order 39, rule 1 of CPC to grant an injunction. Apart from it, it did not consider even as to what wilt be the injury when an order passed by a competent authority exercising exclusive jurisdiction is enforced. This positively pertains to the manner in which the Courts below approached the case and it, therefore, could not be disputed that both the Courts below have committed material irregularity in exercise of jurisdiction.