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1995 DIGILAW 563 (KAR)

N. G. VASU v. K. G. RAJASHEKARAIAH

1995-11-13

H.N.TILHARI

body1995
H. N. TILHARI, J. ( 1 ) IN this case, an ex parte order of injunction had been granted on 9-3-1995. After passing the ex parte injunction Order, court directed notice be issued of la. I and temporary injunction. Thereafter, it appears from the certified order-sheet that on 6-4-1995, a written statement of objections was filed. ( 2 ) THE case thereafter was fixed for 29-7-1995. Thereafter, an application under Section 151 of the Civil Procedure Code, for short, 'code' for a direction to the police of nelamangala, to compel the defendants not to commit the breach of the injunction Order, by order dated 28-9-1995. On 28-9-1995, the trial court ordered as under:"la. I is filed under Section 151, C. P. C. filed by the plalntiff seeking a direction to nelamangala police to implement the order is allowed and nelamangala police is directed to do the needful as per the order of the court in implementing the ex parte temporary injunction order granted on 9-3-1995". the defendant-revisionists have come up in this revision from the order dated 28-9-1995, under Section 115 of the code. ( 3 ) THE learned counsel for the revisionists submitted that no sufficient opportunity was given to the defendants to file objections to the application. Therefore, the order is illegal. Further, the learned counsel for the revisionists pointed out that this order has already been implemented by the police and his cottage industrial shop has been locked. As such, the learned counsel submits that if there is a breach of injunction Order, specific remedy under order 39, Rule 2-a, is provided and that orders can be passed only after notice to the parties, so, course under Section 151 of the code was not open to the court below. ( 4 ) ON behalf of the plalntiff and defendant 4-opposite parties, the contentions made by the revisionists-defendants had been hotly contested and it was submitted that the present revision is not against the order dated 9-3-1995. The learned counsel for the respondent submitted that after having filed objections to the temporary injunction application, the defendants 1 to 3, did not appear and remained absented. That on 23-9-1995, when the application under Section 151, C. P. C. was moved for direction to the police to assist the court in getting the breach of the order avoided. The learned counsel for the respondent submitted that after having filed objections to the temporary injunction application, the defendants 1 to 3, did not appear and remained absented. That on 23-9-1995, when the application under Section 151, C. P. C. was moved for direction to the police to assist the court in getting the breach of the order avoided. Counsels for defendants 1 to 3 were supplied with the copy of the application and were given time till 28-9-1995 to file the objections if any. That on 28-9-1995, neither defendants 1 to 3 nor did their counsels put in appearance and as such in the matter, to prevent the breach of ex parte injunction Order, there is no recourse open to the court, except, to direct the police to go on spot and stop the breach thereof. Lastly, the learned counsel for the respondent-plalntiff submitted that Provisions of order 39, Rule 2-a, did not bar the exercise of powers under Section 151 of the code and in this connection, he made reference to an unreported judgment of this court in Thimmarayyappa v T. Ganesh and others, decided on 8th april, 1992. ( 5 ) I have applied my mind to the contentions of the learned counsel for both the parties. ( 6 ) THE revisional jurisdiction of this court is confined to the pure question of jurisdiction. As regards the question lastly, urged that, whether this court could have taken recourse under Section 151 of the code, particularly, in view of the Provisions of order 39, Rule 2-a of the code. Firstly, Section 151 of the code is declaratory of the powers which are inherent in the court and it provides that nothing in the code is to be deemed to limit or otherwise affect the inherent powers of the court to make orders in the interest of Justice and to prevent the abuse of the process of the court. ( 7 ) ORDER 39, Rule 2-a provides the specific remedy in the matters of disobedience and breach of injunction orders and provide that the court granting injunction, may order the property of the person, guilty of such breach or disobedience, to be attached and may also order the person to be detained in a civil prison, not exceeding three weeks, unless in the meantime, courts direct his release. Order 39, Rule 2-a is punitive in nature and contains a punitive provision with respect to the cases of breach of injunction orders and their disobedience. But apart from that, the question is, whether and how the breach is to be completely prohibited and whether it is open to the court to take assistance of the police authority or authorities of the state. In that matter, to see that the orders are given effect to. For such a situation no doubt, Section 151 of the code will come into picture and there is no bar created in the code, to the having recourse to pass orders under Section 151 of the code to enforce the operation of the order of temporary injunction. When i so opine, i find support from the decision of this court in M. N. Ramu Alias Ramsetty v Smt. Saraswathamma. ( 8 ) IN Manohar Lal Chopra v Rai Bahadur Rao Raja Seth Hiralal, Their lordships of the Supreme Court lald it down that Section 151 itself says that nothing in the code shall be deemed to limit or otherwise affect the inherent power of the court to make orders necessary for the ends. In the face of such a clear statement, it is not possible to hold that the Provisions of the code control inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the court; it is a power inherent in the court by virtue of its duty to do Justice between the parties before it. Further, when the code itself recognizes the existence of the inherent power of the court, there is no question of implying any powers outside the limits of the code. The Supreme Court further lald it down that inherent powers are to be exercised by the court in very exceptional circumstances for which the code contains no provision. ( 9 ) THEIR lordships further lald it down that inherent powers of the courts to make the courts orders debito justitiae is undoubtedly affirmed by Section 151 of the code, but that jurisdiction cannot be exercised so as to nullify the Provisions of the code. Where the code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. Where the code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. ( 10 ) IT may be taken note of that the inherent powers of the court are in addition to the powers specifically conferred on the court by the code. They are supplementary to those powers for the purpose mentioned in Section 151 of the code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the code. The inherent powers of the court having conferred to render any court of law redundant to operate as supplement and complementary to the powers. ( 11 ) THAT being the position, it cannot be said that courts cannot in a case, where, it is absolutely necessary to have recourse to power under Section 151 of the code. To make effective its orders, in addition to order 39, Rule 2-a, the courts can have recourse to Section 151, to meet a situation which is not specifically covered by the law, provided, interest of Justice requires the exercise of it. In the present case, as to application of the course to Section 151, it can be said that recourse in this case has been taken to Section 151 of the code, in a manner that appears to be illegal, for the reason that firstly, when the application for vacation or setting aside of that temporary injunction order was pending and objections against the ex parte order application was also pending, the court had to dispose of that application and at least, could have said that the objections were not pressed by any body, so, the ex parte, injunction order has been confirmed. That has not been done in this case. Instead, the court appears to have disposed of the application, directed the police to implement the order simpliciter and kept that application for vacation of ex parte order pending, on the other hand, got it implemented by recourse to Section 151. Such a recourse appears to be unwarranted. On the well settled principles in the matter of granting an ex parte Order, i do not want to make any observation on merits at this stage. Such a recourse appears to be unwarranted. On the well settled principles in the matter of granting an ex parte Order, i do not want to make any observation on merits at this stage. ( 12 ) THE revision is liable to be disposed of with the observation to the effect that let the plalntiff's application for ex parte order be disposed of according to law and in case, the objections are disposed of in favour of the revisionists, then, it is the duty of the court to restore back the possession. But, in case, injunction is rejected, then the interim order for police help will remain in abeyance. ( 13 ) WITH these observations, this revision petition is disposed of with a direction to dispose of the application of the plalntiff for ex parte injunction within a period of eight weeks. As I have mentioned earlier, that if the order is passed in favour of the plalntiff, it may be restituted. --- *** --- .