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1980 DIGILAW 42 (ALL)

Raj Bahadur Chand v. Pragati Sheel Shiksha Samiti

1980-01-08

SATISH CHANDRA

body1980
JUDGMENT : Satish Chandra, CJ. This is a Defendant's application la revision, it is directed against an order granting an ad interim injunction restraining the Defendant-applicant from interfering with the management and teaching of an educational school run by the Plaintiff. 2. The Plaintiff-opposite party instituted a suit for permanent injunction to restrain the Defendant from interfering in the management and teaching activities of the school. He applied for an ad-interim injunction. The trial court held that the Plaintiff has established a prima facie case but the balance of convenience was in favour of the Defendant, it accordingly refused the prayer for an ad-interim injunction. The Plaintiff went up in appeal. The finding that the Plaintiff had established a prima facie case was confirmed but the lower appellate court held that the balance of convenience was also in favour of the Plaintiff. On this view, the appeal was allowed. The trial court's order was set aside and an interim injunction was granted. Aggrieved, the Defendant has come up to this Court is revision. 3. The finding that the Plaintiff has established a prima facie case and that the balance of convenience was in his favour are findings on questions of fact and I am not satisfied that these findings are vitiated by any jurisdictional error. 4. Learned Counsel for the applicant submitted that the U.P. Civil Laws (Reforms and Amendment) Act, 1976 amended Order 39 CPC. 4. Learned Counsel for the applicant submitted that the U.P. Civil Laws (Reforms and Amendment) Act, 1976 amended Order 39 CPC. it added the following proviso to Sub-rule (2) of Rule 2 of Order 39;- Provided that no such injunction shall be granted- (a) where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963 (Act 47 of 1963) or (b) to stay the operation of an order for transfer, suspension, reduction (sic) service of, or taking charge from any employee including any employee of the Government, or (c) to stay, any disciplinary proceeding pending or intended or, the effect of any adverse entry, against any employee of the Government, or (d) to affect the internal management or affairs, of, any educational institution including a University, or a society, or (e) to restrain any election, or (f) to restrain, any auction intended to be made or, the effect of any auction made by the Government, or (g) to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished, or (h) in any matter where a reference can be made to the Chancellor of a University under any enactment for the time being in force and any order for injunction granted in contravention of these provisions shall be void. 5. Section 36 of the Amending Act stated that a civil suit or proceeding to which the CPC applies, pending on the date of the commencement of this. Act shall be disposed of in accordance with the provisions of the said Code as amended by this Act. 6. It is thus evident that the amendments introduced in the Code by Act No. 57 of 1976 are retrospective in operation inasmuch as they govern pending suits. The Amending Act came into force on January 1, 1977. The proviso added to Order 39, Rule 2(2) deprived the civil courts of the jurisdiction to grant ad-interim injunction orders in cases specified in the proviso. Learned Counsel invoked Clause (d) of the aforesaid proviso. Under Clause (d), no order of in junction can be granted to affect the internal management or the affairs of an educational institution. The proviso added to Order 39, Rule 2(2) deprived the civil courts of the jurisdiction to grant ad-interim injunction orders in cases specified in the proviso. Learned Counsel invoked Clause (d) of the aforesaid proviso. Under Clause (d), no order of in junction can be granted to affect the internal management or the affairs of an educational institution. This clause applies to the instant case because the injunction granted by the lower appellate court was in respect of the internal management or affairs of an educational institution. 7. In reply, learned Counsel for the Plaintiff-opposite party urged that the proceedings for ad-interim injunction under Order 39 CPC could not be said to be pending on the date of the commencement of the Act within meaning of Section 36 of the Amending Act. The lower appellate court allowed the appeal on October 25, 1976 prior to the coming into force of the Amending Act, on January 1, 1977, when the Amending Act came into force, no proceedings was pending. The present revision was filed in this Court on January 31, 1977 after the amendment had come into force. In my opinion, the revision was directed against the order granting an adinterim injunction, which were proceedings to which the Code applies. It is liable to be disposed of in accordance with the Code as amended by Act No. 57 of 1976. 8. In Garikapatti Veeraya Vs. N. Subbiah Choudhury, AIR 1957 SC 540 , it has been settled that appeal is a continuation of the suit. It involves rehearing by the appellate court of the original proceedings. 9. In Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74 the Supreme Court has held that the revisional jurisdiction exercised u/s 115 CPC is part of the appellate jurisdiction of the High Court, as a superior court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is appellate (sic) sion of a subordinate court, is an appeal within the ordinary acceptation of the term . . . . 10. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is appellate (sic) sion of a subordinate court, is an appeal within the ordinary acceptation of the term . . . . 10. Similarly in Raja of Ramnand v. Kamid Rowthen AIR 1926 PC 22 , a civil revision petition was considered to be an appropriate form of appeal from the judgment in a suit of small causes nature, The Supreme Court emphasized two things which were required to constitute appellate jurisdiction, they were the existence of the relation of superior and inferior court and the power on the part of the former to review decision of the latter, Section 115 CPC circumscribes the limits of that jurisdiction, but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It has power to review a decision of an inferior court. 11. The position, therefore, is that a revision is part of the appellate jurisdiction. Just as an appeal is a continuation and rehearing of a suit so will a revision be. 12. In this view, a proceeding for an ad-interim injunction governed by Order 39 CPC will be deemed pending on the commencement of Act No. 57 of 1976 when an application in revision is instituted in the High Court directed against an order of the lower appellate court, It is true that the lower appellate court passed the order on October 25, 1976 when it had jurisdiction to pass interim injunction of this kind, But, when the revision was filed is the High Court cm January 31, 1977, the proceedings for the grant of an ad-interim injunction governed by Order 39 CPC became pending. In any event, Order 39 CPC as amended by Act No. 57 of 1976 was in force on January 31, 1977 when the present revision was filed and was liable to be taken into consideration. The reason is that Section 36 expressly makes the amendments applicable to pending proceedings. The legislative intent is clear that the amendments were to apply to pending proceedings. Ex- hypothesi, they will apply to proceedings which commenced after the coming into force of the Amending Act No. 57 of 1976 though they arise out of appellate orders passed prior to the coming into force of the Amending Act. 13. The legislative intent is clear that the amendments were to apply to pending proceedings. Ex- hypothesi, they will apply to proceedings which commenced after the coming into force of the Amending Act No. 57 of 1976 though they arise out of appellate orders passed prior to the coming into force of the Amending Act. 13. In Shanker Ram Chandra Abhyankar's case (supra) and Commissioner of Income Tax, Bombay Vs. Amritlal Bhogilal and Co., AIR 1958 SC 868 the Supreme Court further settled that an order of the inferior court merges in the order of the superior court even though passed in the exercise of revisional jurisdiction u/s 115 CPC. In this view it is the High Court's order which alone will remain operative, the order of the lower court having merged in it. It is hence all the more necessary that the High Court's order be in accordance with law. 14. Under the amended Order 39 Rule 2(2), the court has no power to grant an ad-interim injunction to affect the management of an educational institution. In this view, this Court cannot affirm such an ad-interim injunction. 15. In the result, the revision succeeds and is allowed. The impugned order passed by the lower appellate court is set aside and the order of the trial court restored. In the circumstances, the parties will bear their own costs.