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2000 DIGILAW 122 (JK)

Mohd. Shafi Shah v. Oriental Textiles Corp.

2000-06-02

G.D.SHARMA

body2000
1. This revision petition is directed against the order dated: 25-03-2000 passed by the learned City Judge, Srinagar whereby the petitioners herein were restrained from damaging or alienating the suit property in any form till next date of hearing i.e. 4-4-2000. Notices were issued to the petitioners herein to show cause why the order be not made absolute pending consideration on the application for restoration of the suit to its original number which was dismissed in default. This order was passed in application made by the respondents herein before the trial court purporated to be made under section 94 read with Order 39 Rule 1 and section 151 CPC. The relevant facts of the case in brief are that petitioners herein had filed the suit on K-half of the owner of the demised premises namely K.V. Pestonji for ejectment of the respondents and was pending disposal in the court of learned District Judge, Srinagar. The respondents herein had also filed a suit for perpetual injunction against the petitioners herein. Vide order dated 13-6-1998, the District Judge had ordered the trial of both these suits together. The averments made in the above said application are that vide order dated: 17-3-1999, the learned District Judge behind the back of the respondents transferred tie case of perpetual injunction for trial to the com of City Judge, Srinagar. As the respondents had no knowledge of the pendency of the case to the transferee court (trial court) so they could not enter appearance on the dates fixed for hearing Resultantly, the suit was dismissed in default on 25-9-1999. When the respondents came to know about the dismissal of the suit, they on 24-11-1999 filed the application for its restoration which was accompanied by an application made under section 5 of the Limitation Act, whereunder the delay in filing the said application was prayed to be condoned. The petitioners were served with the notices, and they filed their objections on 11-12-1999. The case was fixed for arguments, which were heard on the same day and the case was posted for orders on 24-12-1999. From 24-12-1999, the case was adjourned to 25-02-2000. The order could not be drawn on that day because of abnormal law and order situation prevailing in the Valley, and the case was adjourned for 4-4-2000. The case was fixed for arguments, which were heard on the same day and the case was posted for orders on 24-12-1999. From 24-12-1999, the case was adjourned to 25-02-2000. The order could not be drawn on that day because of abnormal law and order situation prevailing in the Valley, and the case was adjourned for 4-4-2000. The parties were present on 4-4-2000 and the trial court again recorded in the minutes of the proceedings that because of abnormal prevailing disturbed conditions, the order could not be passed. The next date fixed in the case was 6-5-2000. The respondents apprehended mischief to the demised property and on 25-3-2000 the above said application was made with the allegations that the petitioners herein had set in the process of demolition of the adjoining building giving rise to the apprehension that it was a play employed to dispossess the respondents from the demised premises after getting them razed to the ground. It was contended that the respondents being tenants had statutory right of protection from being evicted without following the prescribed procedure under the J&K Houses and Shops Rent Control Act. That proceeding had to stay under the provisions of the J&K Migrant Immovable Property (Preservation, Protection and Restraint) on Distress Sales Act, 1997. Then right to hold the demised premises peacefully was being threatened so they sought the protection of the Court. On the existence of these peculiar circumstances the trial court dispensed with the service of notice to the petitioners and passed the impugned order. To the show cause notice, the petitioners herein appeared on 4-4-2000. On this date, no proceedings could be initiated because of general strike being observed. In the presence of the parties, the case was adjourned for 6-5-2000 and the operation of the impugned order was extended upto that date. The petitioners herein instead of showing cause to the show cause notice challenged the order on 1-6-2000 by filing this revision petition. The order has been challenged inter-alia on the ground:- 1. There was no suit pending before the trial court on 25-3-2000 when the impugned order was passed and thus the order is without jurisdiction; 2. The impugned order could only be passed under Order 39 Rule 1 CPC and the application should have been supported by an affidavit. The order has been challenged inter-alia on the ground:- 1. There was no suit pending before the trial court on 25-3-2000 when the impugned order was passed and thus the order is without jurisdiction; 2. The impugned order could only be passed under Order 39 Rule 1 CPC and the application should have been supported by an affidavit. Further-more, the application under Order 39 Rule 1 CPC could be made only when the main suit was pending before the Court. As hi the present case no suit was pending so the impugned order could not be passed. 3. The order has been passed without giving any notice to the petitioners and thus there is a violation of Order 39 Rule 1 CPC. Heard the arguments. 2. The counsel appearing for the petitioners has reiterated the grounds taken in the revision petition in his arguments and laid stress that this is an ex-parte order passed against them in violation of the mandates of law. The apex court has laid the guidelines in the case of Mogan Stanley Mutual Fund Vs. Dartick Dass� (1994 (4) SCC 225) for the issuance of ex-parte injunction which can only be granted under exceptional circumstances. The apex court has laid the guidelines in the case of Mogan Stanley Mutual Fund Vs. Dartick Dass� (1994 (4) SCC 225) for the issuance of ex-parte injunction which can only be granted under exceptional circumstances. The learned counsel has quoted para 36 of the said judgment, which enumerates the factors which should weight with the court in the grant of ex-partie injunction and these are: a. whether irreparable or serious mischief will ensure to the plaintiff; b. whether the refusal of ex-parte injunction would involve greater injustice than the grant of it would involve; c. the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented; d. the court will consider whether the plaintiff had acquired for some time and in such circumstances it will not grant ex-parte injunction; e. the court would expect a party applying for ex-partie injunction to show utmost good faith in making the application; f. even if granted, the ex-parte injunction would be for a limited period of time; g. General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court.� The learned counsel has also contended that provisions of section 141 CPC is not attracted because there were no proceedings pending before the Court and in support of this plea he has cited AIR 1965 A.P. 17. He has stated that proceedings under Order 9 Rule 13 CPC are not continuation of the suit and in support of this contention he has cited AIR 1960 Cal. 203. 3. In rebuttal the counsel appearing for the respondents has contended that the trial court had the power to issue temporary injunction even in the circumstances not covered by Order 39 CPC by virtue of its duty to do justice between the parties before it. He has referred section 94 CPC and stressed that there is no such expression used therein which expressly prohibits the issuance of temporary injunction in circumstances not covered by Order 39 CPC or any rules made under the Code. In support of this contention he has cited the case of Manchar Lal Chopra Vs. Rai Bahaudar Rai Raja Setfa Hiralal� (AIR 1962 SC 527). In support of this contention he has cited the case of Manchar Lal Chopra Vs. Rai Bahaudar Rai Raja Setfa Hiralal� (AIR 1962 SC 527). It is advantageous to reproduce the observations made by the apex court in para 18 (page 532) where it has been stressed that inherent jurisdiction of the court to make orders ex-debitor 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:- We are of the opinion that the later view is correct that the courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX CPC. There is no such expression in section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by order XXIX or by any rule made under the Code. It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression ˜if it is so prescribed™ is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of section 94 were not in the Code, the court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Courts exercising that jurisdiction and the court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.� The counsel has also cited the case of T. Panneersslvam Vs. A. Baylis� (AIR 1986 Mad. 284). A. Baylis� (AIR 1986 Mad. 284). In that case suit for specific performance was dismissed for default. Application for restoration of the suit was made. Plaintiff had sought interim order restoring defendant from alienating property till disposal of restoration application It was held that order 39 Rule 1 cannot invoked, as there was no suit pending during the pendency of the restoration application, yet the Court could grant interim injunction under section 151 CPC in the interest of justice. The learned Single Judge of this court in the case of Allam Bhat Vs Rasool Bhat and Others� (AIR 1967 J&K 13) has held that once a suit is dismissed for default ant a restoration application is pending, temporary injunction cannot be granted as there is no suit pending before the Court. However, the Court must before exercising its powers under section 151 CPC satisfy itself that the claimant who seeks an injunction has established a stronger case than he will have to do in an application under order 39 of the CPC. In other words, the inherent power of the court to issued temporary injunction under section 151 CPC was recognized. 4. After adverting to the facts of the present case it is to be determined whether the trial court has exercised the inherent jurisdiction under section 151 CPC to do justice between the parties or not. The petitioners herein were restrained only till the next date of hearing not to cause any damage or alienate the suit property in any form. The petitioners herein instead of showing cause to the notice on the date fixed for hearing filed the revision petition and have urged to exercise parental supervisory jurisdiction. On the appointed date i.e. 4-4-2000, the petitioners had appeared and in their presence, the next date fixed in the case was 6-5-2000. The operation of the impugned order was extended only upto 6-5-2000 and the record reveals that it was not extended beyond that date. On facts it is found that the life of the impugned order had expired but the learned counsel of the petitioners has vehemently urged to set aside the order on the plea that it lacked jurisdiction. The operation of the impugned order was extended only upto 6-5-2000 and the record reveals that it was not extended beyond that date. On facts it is found that the life of the impugned order had expired but the learned counsel of the petitioners has vehemently urged to set aside the order on the plea that it lacked jurisdiction. The facts have disclosed that this order was passed by the trial court in its exercise vested under law in order to preserve the suit property and the order has not been passed under the provisions of order 39 Rule 1 CPC. The contentions raised by the learned counsel of the petitioners are found factually and legally incorrect and no ground has been established to interfere with the impugned order which otherwise has also out-lived its life and the revision petition becoming infructuous is dismissed. The trial court is directed to decide the restoration application in accordance with law as expeditiously as possible and the counsel for the parties are directed to appear before the trial court on June 08, 2000. The office is directed to send back the record.