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1990 DIGILAW 82 (MAD)

S. Swamidass v. Robert Bruce

1990-01-22

ABDUL HADI

body1990
Judgment :- 1. This civil revision petition is against the order dated 23-12-1989 in I.A. 652 of 1989 (in the Transfer Petition T.CP. No. 170 of 1989) on the file of the District Court, Nagarcoil, refusing to give extension of interim injunction earlier granted in I.A.I 121 of 1989 in O.S. 676 of 1989 on the file of the Additional District Munsif court, Kizhithurai, till the disposal of the said I.A. 1121 of 1989. 2. The said I.A. 652 of 1989 has been filed under S. 151 C.P.C. O.S. 676 of 1986 was filed by the petitioner against six persons, including the first defendant-Bishop and the second defendant C.S.I. Church, Mangarai, represented by the third defendant-Pastor, for permanent injunction restraining the first defendant from dissolving the ad hoc committee of Mangarai C.S.I. Church appointed on 11.2.1988 until the election to the said Church takes place. In the said suit, in I.A. 1034 of 1989 similar temporary injunction was granted on 24.10.1989 and is still in force. However, it appears on 21.10.1989 itself the Church Board had appointed a new ad hoc committee consisting of the present respondents for holding election to the said Mangarai Church. This is seen from the letter dated 2.11.1989 of the Church Board to one of the respondents herein. 3. So, the petitioner herein filed I.A. 1120 of 1989 in the said suit for impleading the said new ad hoc committee members respondents herein as defendants 7 to 10 in the suit, and LA. No. 1121 of 1989 for interim injunction restraining the said proposed defendants 7 to 10 from interfering with the abovesaid existing ad hoc committee (who are some of the defendants in the suit) in conducting the election for the said Church committee. The said interim injunction was given on 3.11.1989 and it was also extended on 27.11.1989 to be in force till 30.11.1989. It is represented by the counsel for the petitioner that arguments on both sides were beard in the said LA. and on 27.11.1989 the said I.A. 1121 of 1989 was posted to 30.11.1989, for reply arguments by the petitioners counsel. The other LA. No. 1130 of 1989 for impleading was also pending. 4. It is represented by the counsel for the petitioner that arguments on both sides were beard in the said LA. and on 27.11.1989 the said I.A. 1121 of 1989 was posted to 30.11.1989, for reply arguments by the petitioners counsel. The other LA. No. 1130 of 1989 for impleading was also pending. 4. While so, on 29.11.1989, just one day prior to 30-11-1989 the abovesaid O.P. 170 of 1989 has been filed by the said proposed parties in the District Court, Nagarcoil for transfer of the above suit and certain other suits to another Court and the said proposed parties also obtained stay of further proceedings in O.S. 676 of 1989. Thereafter, the petitioners herein filed the present I.A. 652 of 1989 in the said T.O.P. for the above referred extension of the said interim injunction given in I.A. 1121 of 1989. Against the refusal to the said extension, the present revision petition has been filed. 5. The only ground on which the court below has refused extension is that no injunction could be granted against the persons who are not parties to the suit, relying on the passage, “an injunction can be issued only against a party to the suit and not against either a Court or a stranger to the suit, found in Chitaleys “Civil Procedure Code”, 9th Edn. 4th Volume page 618. The Court below, without going into the merits, refused to grant the extension of injunction on the sole technical ground that the re spondents had not yet become parties to the suit, but only a petition was pending for imleading them. 6. The learned counsel for the petitioner submitted that the abovesaid technical objection was erroneous and that further the Court below overlooked the fact that the transfer petition was filed just to prevent the trial Court from passing the final orders in LA. No. 1121 of 1989 and the fact that the first defendant, despite the abovesaid earlier injunction granted on 24.10.1989 in LA. 1034 of 1989 violated it by appointing a new ad hoc committee consisting of the respondents herein. With reference to th e abovesaid technical objections, he pointed out that the extension sought for was under S. 151 C.P.C. and that the court always has got inherent powers to grant injunction even where the circumstances were not covered by O. 39, Rr. With reference to th e abovesaid technical objections, he pointed out that the extension sought for was under S. 151 C.P.C. and that the court always has got inherent powers to grant injunction even where the circumstances were not covered by O. 39, Rr. 1 or 2 C.P.C. under which provision alone, if at all, injunction could be granted only against any of the parties to the suit. Further, he cited the following passage from Halsburys Laws of England, 4th Edn. Volume 24, paragraph 1045— “Where a person was threatening to aid and abet the defendant in committing a breach of an injunction, the court granted an injunction restraining him personally from so doing, without his being made a party” (emphasis is mine,)”. He also cited the decision in Nasir Ahmed v. Latif Ahmed 1 . There, in a pending suit, for dissolution of partnership, a receiver was appointed. The partnership firm had earlier leased out the firmshabnam factory to a lessee. The said lessee did not pay the rent and the court gave an injunction against the lessee preventing him from making withdrawal of money from his Bank. The lessees contended that the said injunction against him was without jurisdiction. In such a situation it was held that the Court was competent to pass the said order against the lessee. The le arned counsel also drew my attention to the passage in Woodroffes “The law relating to Injunction th Ed. (1988) page 27 to the effect that injunction could be passed also against persons who are within the reach of the Court eventhough they may not be parties. Further, the learned counsel also submitted that though respondents had not yet been made parties, there is a petition pending for making them parties, and when it is ordered it would relate back to the date of its filing, viz, 3.11.1989 and so there can be no impediment in passing an injunction against them, while the said I.A. 1129 of 1989 for impleading them is pending. There is considerable force in the argument of the said counsel. There is considerable force in the argument of the said counsel. I also find that it has been held in Manoharlal v. Seth Hiralal and others 1 , that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of O. 39 C.P.C. if the Court is of opinion that interest of justice requires the issue of such injunctions. 7. Further, if at all only under O 39 Rr. 1 or 2, C.P.C it can be said that injunction cannot be granted against a person, who is not a party to the suit. But, even there, I find the following passage in the Commentary under O. 39 R. 1 of Mullahs C.P.C. 13th Edn, Volume II page 1515:— “No injunction can be granted under this Rule against a person who is not a party to the suit. But this Rule is subject to certain exceptions, e.g. injunction can be given against a purchaser under the decree, against a tenant who had taken a lease from the receiver appointed by the Court.” Any way the respondents should have waited tor the passing of the final decree in I.A. 1121 of 1989 on 30.11.1989, and thereafter if necessary could have filed the abovesaid transfer petition. If they had done so, all these subsequent complications could have been avoided. In this connection, I even wanted to see a copy of the affidavit filed in support of the transfer petition to find out whether in the said affidavit, the respondents have disclosed the orders passed in the said I.A. 1121 of 1989, and the stage at which it stood then. But none of the counsel before me could provide the said copy. At any rate, the filing of I.A. 652 of 1989 by the petitioner herein became necessary only because of the abovesaid transfer petition and the grant of stay of further proceedings in the suit by the District Court on 29.11.1989, while the trial court had granted injunction upto 30.11.1989 and had posted the relevant I.A. for passing final orders relating to the injunction granted, to 30.11.1989. In such a situation, the District Court should have necessarily considered I.A. 652 of 1989, for extension of the said injunction, on merits and ought not to have dismissed it on the abovesaid technical ground, which cannot be sustained in law. 8. In such a situation, the District Court should have necessarily considered I.A. 652 of 1989, for extension of the said injunction, on merits and ought not to have dismissed it on the abovesaid technical ground, which cannot be sustained in law. 8. No doubt, the learned counsel for the respondents contended that in a similar action initiated by another person against the above said Church authorities for similar reliefs, the court has refused any such reliefs on the ground that the ad hoc committee appointed on 11-2-1988 was not functioning and that the said ruling was also confirmed by this Court in C.R.P. 2348 of 1989. Further, he also contended that even before 24 10.1989 when the original injunction was given against the first defendant-Bishop of the Church in question, the Church Board had already appointed a new Advocates Appeared: hoc committee on 21.10.1989, itself, and that hence the order of injunction dated 24.10.1989, that too, against the first defendant and not against the Church-Board will have no effect and that therefore no question of violation of the order dated 24.10.1989 would arise. But, I need not go into these questions relating to the merits. Since I find that the technical ground, on which the District Court has refused extension of injunction, is not sustainable in law, I allow this civil revision petition, set aside the order of the learned District Judge and remit the matter back to him for fresh disposal on merits, allowing both the parties to make their respective contentions, before him. The learned District Judge, in view of the urgency is directed to dispose of the said I.A. within two weeks from the date of the receipt of this order. 9. In view of the above said order passed in the main Civil Revision Petition interim injunction prayed for in C.M.P. 568 of 1990 is granted until final orders are passed in I.A. 652 of 1989 by the District Court, Nagarcoil.