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Himachal Pradesh High Court · body

2024 DIGILAW 294 (HP)

Synergy Technologies v. Alvium Life Sciences

2024-04-29

SATYEN VAIDYA

body2024
JUDGMENT : Satyen Vaidya, J. Aggrieved against order dated 16.06.2023 passed by learned Senior Civil Judge, Kasauli, District Solan, H.P. in CMA No. 168/6 of 2023 in Civil Suit No. 35 of 2023, petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India. 2. Original suit No. 35 of 2023 titled as M/s Alvium Life Sciences vs. The Senior Electrical Engineer and others is pending before learned Senior Civil Judge, Kasauli. The prayer made in the original suit is as under:- “a) Pass a decree for issuance of directions to respondent no.1 for installing and energizing electricity connection in the name of plaintiff at the premises situated at First Floor, Khasra Nos. 329 and 335, Village Naryal, Parwanoo, Tehsil Kasauli, District Solan, Himachal Pradesh.” 3. Respondent No.1 herein/plaintiff has sought the above decree on the premise that it is a tenant of petitioner herein in respect of a premises situated at First Floor, Khasra No.329 and 335, Village Naryal, Parwanoo, Tehsil Kasauli, District Solan, H.P. The premises have been taken on rent for the purpose of running an office and a factory. Mr. Pulkit Abrol is the proprietor of petitioner herein, who works abroad. In the absence of Mr. Pulkit Abrol, his father Mr. Susheel Abrol caused hindrance in installation of electricity connection in the tenanted premises of respondent No.1/plaintiff. 4. Respondent No.1/plaintiff did not implead either the petitioner herein or Shri Susheel Abrol as defendant, however, on the application for impleadment filed by petitioner herein, it has been ordered to be impleaded as defendant No.4. 5. For the sake of convenience, the parties hereafter shall be referred to by the same status as they hold before learned trial court. 6. Defendants No.1 to 3 have filed their written statement. Defendant No.4, who was impleaded on 12.05.2023, was yet to file its written statement till the date of passing of impugned order dated 16.06.2023. In stead, defendant No.4 had filed an application under Order 7, Rule 11 of the Code of Civil Procedure for seeking rejection of plaint. 7. The suit was initially filed by the plaintiff without seeking any interim relief. The fact of the matter is that no application for any interim relief was filed by the plaintiff along with the suit. 8. 7. The suit was initially filed by the plaintiff without seeking any interim relief. The fact of the matter is that no application for any interim relief was filed by the plaintiff along with the suit. 8. On 16.06.2023, plaintiff filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure seeking directions against defendant No.1 to install electricity connection in the name of plaintiff at premises situated at First Floor, Khasra Nos.329 and 335, Village Naryal, Parwanoo, Tehsil Kasauli, District Solan, H.P. The application was registered as CMA No. 168/6 of 2023. 9. Since, the main suit was also listed on 16.06.2023, the learned counsel for the defendants were supplied with the copies of the application in the Court itself. 10. On 16.06.2023 itself learned trial Court passed the impugned order in CMA No. 168/6 of 2023 directing defendants No.1 and 2 to install electricity connection forthwith in the premises situated at First Floor, Khasra Nos. 329 and 335, Village Naryal, Parwanoo, Tehsil Kasauli, District Solan, H.P. The defendants were also directed to file their replies to CMA No. 168/6 of 2023. 11. Defendant No.4 has assailed the impugned order on the ground that the learned trial Court had acted in undue haste by directing the installation of electricity connection in the premises alleged to be tenanted by the plaintiff. It has also been contended that the impugned order has been passed without even affording reasonable opportunity to the defendants to oppose the application. 12. I have heard the learned counsel for the parties and have also gone through the record carefully. 13. Undisputably, the impugned order dated 16.06.2023 has been passed on the same day when CMA No. 168/6 of 2023 was instituted in the Court. It is evident from the impugned order that a prayer was made on behalf of defendant No.4 to grant time for filing reply. Without affording any opportunity to defendant No.4 and for that matter to any other defendant, learned trial Court proceeded to pass the impugned order in mandatory form on the same day. 14. Learned senior counsel representing the plaintiff contended that defendant No.4 has remedy to assail the impugned order by filing an appeal under Order 43, Rule 1(r) of the Code of Civil Procedure, therefore, the instant petition under Article 227 of the Constitution was not maintainable. 14. Learned senior counsel representing the plaintiff contended that defendant No.4 has remedy to assail the impugned order by filing an appeal under Order 43, Rule 1(r) of the Code of Civil Procedure, therefore, the instant petition under Article 227 of the Constitution was not maintainable. He placed reliance on a judgment passed by the Hon'ble Supreme Court in A. Venkatasubbiah Naidu v. S. Chellappan, (2000)7 SCC 695 in which in has been held as under:- “9. Sri Sivasubramaniam, learned Senior Counsel contended that the High Court should not have entertained a petition under Article 227 of the Constitution when the respondent had two remedies statutorily available to him. First is that the respondent could have approached the trial court for vacating, if not for any modification, of the interim ex-parte order passed. Second is that an appeal could have been preferred by him against the said order. It is open to respondent to opt either of the two remedies, contended the Senior Counsel....... XXXXXXXXXXX 13. It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be applicable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. XXXXXXXXXXX 21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule. 22. Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition. 23. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition. 23. In the light of the direction issued by the High Court that the trial court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law, we may further add that till such orders are passed by the trial court, status-quo as it prevailed immediately preceding the institution of the suit would be maintained by the parties.” 15. Reliance has also been placed upon later judgment passed by the Hon'ble Supreme Court in Virudhunagar Hindu Nadargal Dharma Parbalana Sabai and Ors. v. Tuticorin Educational Society and Ors., (2019)9 SCC 538 in which it has been held as under:- “11. Secondly, the High Court ought to have seen that when a remedy of appeal under section 104 (1) (i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu Vs. S. Chellappan & Ors. (2000)7 SCC 695 , this Court held that “though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy”. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi judicial authorities and tribunals. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3-member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai (2003)6 SCC 675 , pointed out in Radhey Shyam Vs. Chhabi Nath, (2015) 3 SCC (Civ.)67 that “orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. 13. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” 16. Noticeably, the challenge by way of instant petition has been made to the impugned order, not on the merits, but on the ground of undue haste shown by the learned trial Court in passing the impugned order without even affording an opportunity of being heard to the defendants, which defendant No.4 has alleged to be a case of serious impropriety in adherence to judicial procedure. In A. Venkatasubbiah Naidu's case (supra), Hon'ble Supreme Court has clearly observed that no hurdle can be put against the exercise of the constitutional powers of the High Court. In A. Venkatasubbiah Naidu's case (supra), Hon'ble Supreme Court has clearly observed that no hurdle can be put against the exercise of the constitutional powers of the High Court. It is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. It was so held in the back drop of facts when a petition had been filed under Article 227 of the Constitution before the High Court against an interim ex-parte order of injunction passed by the learned trial Court in original suit. 17. In Tuticorin Euducational Society's case (supra), the Hon'ble Supreme Court reiterated the aforesaid observations made in A. Venkatasubbiah Naidu's case (supra) and thereafter has held as under:- “13. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” 18. In that case also the challenge before the High Court under Article 227 of the Constitution was on the merits of the findings returned by the Court in original suit while granting interim relief. 19. As noticed above, in the case in hand, the jurisdiction of this Court has been invoked alleging serious impropriety in the procedure adopted by the learned tiral Court in judicial proceedings. 20. Article 227 of the Constitution reads as under:- “227. Power of superintendence over all courts by the High Court. (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provisions, the High Court may-- (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (2) Without prejudice to the generality of the foregoing provisions, the High Court may-- (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision or any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.” 21. The scope of jurisdiction of High Court under Article 227 of the Constitution has been expounded by the Hon'ble Supreme Court as under: (i) In Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524 , it has been held as under:- “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.” (ii). In Radhey Shyam & Another vs. Chhabi Nath and others, (2009)5 SCC 166, the Hon'ble Supreme Court rendered the following exposition of law:- “31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. In Radhey Shyam & Another vs. Chhabi Nath and others, (2009)5 SCC 166, the Hon'ble Supreme Court rendered the following exposition of law:- “31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.” (iii). In Garment Craft vs. Prakash Chand Goel, (2022)4 SCC 181 , it has been held as under:- “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 22. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 22. Thus, from the above stated exposition of law, it is clear that though this Court has restrictive and limited jurisdiction to interfere under Article 227 of the Constitution of India, yet even after such restriction, the same can be extended to set right the grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice. Such power can also be used in appropriate cases where there is no material to justify the findings or findings are so perverse that no reasonable person can possibly come to a conclusion that a Court has arrived at. Additionally, the aforesaid jurisdiction can also be exercised to ensure that there is no miscarriage of justice. 23. Keeping in view the aforesaid dictum in mind, I have no hesitation to say that the present is a fit case for interference by exercise of jurisdiction under Article 227 of the Constitution. 24. Learned trial Court did not afford any of the defendants any opportunity to contest the prayer made in the application bearing CMA No. 168/6 of 2023. Despite the fact that a prayer has been made on behalf of defendant No.4 to file reply, learned trial Court proceeded to pass the impugned order on the same date. The bare minimum time was not granted to defendant No.4 to file its reply. On the date of passing of impugned order, the stand of defendant No.4 to the extent that it was opposing the prayer of the plaintiff in original suit was clearly evident before the learned trial Court. Defendant No.4 had already been impleaded as defendant No.4 on its application in which it had clearly been stated that there was a dispute inter se the plaintiff and defendant No.4 with respect to validity of tenancy claimed by plaintiff. 25. Rule 3, Order 39 of the Code of Civil Procedure reads as under:- “3. Before granting injunction, Court to direct notice to opposite party. 25. Rule 3, Order 39 of the Code of Civil Procedure reads as under:- “3. Before granting injunction, Court to direct notice to opposite party. The Court shall in all case, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party: Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant- (a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with- (i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies, and (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.” 26. Thus, it is mandatory for the Court to direct notice of the application filed under Rules 1 and 2 of Order 39 to be given to the opposite party except where it appears to the Court that object of granting injunction would be defeated by delay. The notice mandated under Rule 3 (supra) cannot be a mere formality. It has to be reasonable notice and the opposite party is entitled to make itself response within reasonable period. In the instant case, not only that reasonable time was not afforded to the opposite party to oppose the prayer made in the application for interim relief, learned trial Court hastened to pass an interim order in mandatory form which in fact is peri-materia to the prayer as made in the main suit. The plaint was instituted on 06.04.2023 and along with the plaint there was no application for interim relief. On 16.06.2023, the application for interim relief was filed and as noticed above, prayer in interim form was also the same as was prayed in the main suit. The plaint was instituted on 06.04.2023 and along with the plaint there was no application for interim relief. On 16.06.2023, the application for interim relief was filed and as noticed above, prayer in interim form was also the same as was prayed in the main suit. The impugned order does not record any reason as to what urgency was seen by the learned trial Court in passing the impugned order on the same day on which the application was filed. Thus, there is serious non compliance of Rule 3, Order 39 of the Code of Civil Procedure and the manner in which learned trial Court has conducted itself definitely is not confirming to the basis principles of judicial procedure and propriety. The impugned order, for the reasons stated hereinabove, cannot be sustained. 27. That being so, the plaintiff cannot be allowed the benefit arising out of the order which is patently improper. In result, the petition is allowed and the impugned order dated 16.,06.2023 passed by the learned Senior Civil Judge, Kasauli in CMA No. 168/6 of 2023 in Civil Suit No. 35 of 2023 is set aside with direction to the parties to maintain status quo ante as on the date of passing of the impugned order with respect to the installation of electricity connection in the premises situated at First Floor, Khasra Nos. 329 and 335, Village Naryal, Parwanoo, Tehsil Kasauli, District Solan, H.P. Defendants No.1 and 2 are directed to initiate necessary steps for maintaining status quo ante as on 16.06.2023. Learned trial Court is directed to decide CMA No. 168/6 of 2023 afresh in light of observations made hereinabove. 28. Parties are directed to appear before the learned trial Court on 15th May, 2024. Records be sent back forthwith.