Manohar Lal Chopra Vs. Rai Bahadur Rao
Raja Seth Hiralal  INSC 323 (16 November 1961)
DAYAL, RAGHUBAR WANCHOO, K.N.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1962 AIR 527 1962 SCR Supl. (1) 450
CITATOR INFO :
F 1965 SC1144 (6) R 1966 SC1899 (5) F 1983
SC1272 (21) R 1986 SC 421 (34)
Civil Procedure-Inherent powers of courts-
Temporary Injunction-Restraining party from proceeding with suit in another
State-Legality and propriety of-Code of Civil Procedure, 1908 (V of 1908), ss.
94(c) 151:O. 39 r. 1.
M filed a suit at Asansol against H for
recovery of money. Later, H filed a counter suit at Indore against M for
recovery of money. In the Asansol suit one of the defences raised by H was that
the Asansol court had no jurisdiction to entertain the suit. H applied to the
Asansol court to stay the suit but the court refused the prayer.
An appeal to the Calcutta High Court against
the refusal to stay was dismissed with the direction that the preliminary issue
of jurisdiction should be disposed of by the trial court immediately.
Thereupon, H applied to the Indore court for
an injunction to restrain M from proceeding with the Asansol suit pending the
disposal of the Indore suit and the court purporting to act under O. 39 Code of
Civil Procedure granted the injunction. M appealed to the Madhya Bharat High
Court which dismissed the appeal holding that though O. 39 was not applicable
to the case the order of injunction could be made under the inherent powers of
the court under s. 151 Code of Civil Procedure.
^ Held, that the order of injunction was
wrongly granted and should be vacated.
Per, Wanchoo, Das Gupta, and Dayal,JJ.-The
Civil courts had inherent power to issue temporary injunctions in cases which
were not covered by the provisions of O. 39 Civil Procedure Code. The
provisions of the Code were not 451 exhaustive. There was no prohibition in s.
94 against the grant of a temporay injunction in circumstances not covered by
O. 39. But inherent powers were not to be exercised when their exercise was in
conflict with the express provisions of the Code or was against the intention
of the legislature. Such powers were to be exercised in very exceptional
circumstances. A plaintiff of a suit in another jurisdiction could only be
restrained from proceeding with his suit if the suit was vexatious and useless.
It was not so in the present case. It was proper that the issue as to
jurisdiction should be decided by the Asansol court as directed by the Calcutta
High Court. The Indore court could not decide this issue. Beside, it was open
to the Asansol court to ignore the order of the Indore court and to proceed
with the suit. This would place M in an impossible position. An order of a
court should not lead to such a result.
Varadacharlu v. Narsimha Charlu, A.I.R. 1926
Mad.258; Govindarajalu v. Imperial Bank of India, A.I.R. 1932 Mad. 180 ;
Karuppayya v. Ponnuswami, A.I.R. 1933 Mad. 500(2); Murugesa Mudali v. Angamuthu
Madali, A.I.R. 1938 Mad. 190 and Subramanian v. Seetarama, A.I.R. 1940 Mad.
104, not approved.
Dhaneshwar Nath v. Ghanshyam Dhar, A.I.R.
1940 All.185, Firm Richchha Ram v. Firm
Baldeo Sahai, A.I.R. 1940 All.241, Bhagat Singh v. Jagbir Sawhney, A.I.R. 1941
Cal. 670 and Chinese Tannery Owners' Association v. Makhan Lal, A.I.R. 1952
Cal. 550, approved.
Padam Sen v. State of U.P.  1 S. C. R.
884, Cohen v. Rothfield, L. R.  1 K. B.
410 and Hyman v. Helm, L. R.(1883) 24 Ch. D. 531, relied on.
Per, Shah, J.-Civil courts have no inherent
power to issue injunctions in case not covered by O. 39, rr. 1 and 2 Code of
Civil Procedure. The power of civil courts, other than Chartered High Courts,
to issue injunctions must be found within the terms of s. 94 and O. 39, rr. 1
and 2. Where an express provision is made to meet a particular situation the
Code must be observed and departure therefrom is not permissible. Where the
Code deals expressly with a particular matter the provision should normally be
regarded as exhaustive.
Padam Sen v. State of U. P.  1 S. C. R.
884, relied upon.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 346 of 1958.
452 Appeal by special leave from the judgment
and order dated May 10, 1955, of the former Madhya Bharat High Court in Misc.
Appeal No. 26 of 1954.
S. N. Andley, Rameshwar Nath and P. L. Vohra,
for the appellant.
S. T. Desai, K. B. Bhatt and B. R. L. Iyengar,
for the respondent.
1961. November 16. The Judgment of Wanchoo,
Das Gupta and Dayal,JJ., was delivered by Dayal J.
Shah J., delivered a separate Judgment.
RAGHUBUR DAYAL, J.-The appellant and the
respondent entered into a partnership at Indore for working coal mines at
Kajora gram (District Burdwan) and manufacture of cement etc., in the name and
style of 'Diamond Industries'. The head office of the partnership was at Indore.
The partnership was dissolved by a deed of dissolution dated August 22, 1945.
Under the terms of this deed, the appellant made himself liable to render full,
correct and true account of all the moneys advanced by the respondent and also
to render accounts of the said partnership and its business, and was held
entitled to 1/4th of Rs. 4,00,000/- solely contributed by the respondent toward
the capital of the partnership. He was, however, not entitled to get this
amount unless and until he had rendered the accounts and they had been checked
The second proviso at the end of the
convenants in the deed of dissolution reads:
"Provided however and it is agreed by
and between the parties that as the parties entered into the partnership
agreement at Indore (Holker State) all disputes and differences whether
regarding money or as to the relationship or as to their rights and liabilities
of the parties hereto in respect of the 453 partnership hereby dissolved or in
respect of question arising by and under this document shall be decided
amicably or in court at Indore and at nowhere else." On September 29,
1945, a registered letter on behalf of the respondent was sent to the
appellant. This required the appellant to explain to and satisfy the respondent
at Indore as to the accounts of the said colliery within three months of the
receipt of the notice. It was said in the notice that the accounts submitted by
the appellant had not been properly kept and that many entries appeared to be
wilfully falsified, evidently with malafide intentions and that there appeared
in the account books various false and fictitious entries causing wrongful loss
to the respondent and wrongful gain to the appellant. The appellant sent a
reply to this notice on December 5, 1935, and denied the various allegations,
and requested the respondent to meet him at Asansol or Kajoraram on any day
suitable to him, within ten days from the receipt of that letter.
On August 18, 1948, the appellant instituted
Suit M. S. No. 33 of 1948 in the Court of the Subordinate Judge at Asansol
against the respondent for the recovery of Rs. 1,00,000/- on account of his
share in the capital and assests of the partnership firm 'Diamond Industries'
and Rs. 18,000/- as interest for detention of the money or as damages or
compensation for wrongful withholding of the payment. In the plaint he
mentioned about the respondent's notice and his reply and to a second letter on
behalf of the respondent and his own reply thereto. A copy of the deed of
dissolution, according to the statement in paragraph 13 of the plaint, was
filed along with it.
On October 27, 1948, respondent filed a
petition under s. 34 of the Arbitration Act in the Asansol Court praying for
the stay of the suit in 454 view of the arbitration agreement in the original
deed of partnership. This application was rejected on August 20, 1949.
Meanwhile, on January 3, 1949, the respondent
filed Civil Original Suit No. 71 of 1949 in the Court of the District Judge,
Indore, against the appellant, and prayed for a decree for Rs. 1,90,519-0-6
against the appellant and further interest on the footing of settled accounts
and in the alternative for a direction to the appellant to render true and full
accounts of the partnership.
On November 28, 1949, the respondent filed
his written statement in the Asansol Court.
Paragraphs 19 and 21 of the written statement
"19. With reference to paragraph 21 of
the plaint, the defendant denies that the plaintiff has any cause of action
against the defendant or that the alleged cause of action, the existence of
which is denied, arose at Kajora Colliery. The defendant craves reference to
the said deed of dissolution whereby the plaintiff and the defendant agreed to
have disputes, if any, tried in the Court at Indore. In the circumstances, the
defendant submits that this Court has no jurisdiction to try and entertain this
21. The suit is vexatious, speculative,
oppressive and is instituted malafide and should be dismissed with costs."
Issues were struck on February 4, 1950. The first two issues are:
"1. Has this Court jurisdiction to
entertain and try this suit?
2. Has the plaintiff rendered and
satisfactorily explained the accounts of the partnership in terms of the deed
of dissolution of partnership ?" 455 In December 1951, the respondent
applied in the Court at Asansol for the stay of that suit in the exercise of
its inherent powers. The application was rejected on August 9, 1952. The
learned Sub-Judge held:
"No act done or proceedings taken as of
right in due course of law is 'an abuse of the process of the Court' simply
because such proceeding is likely to embarass the other party." He
therefore held that there could be no scope for acting under s. 151, Code of
Civil Procedure, as s. 10 of that Code had no application to the suit, it
having been instituted earlier than the suit at Indore. The High Court of
Calcutta confirmed this order on May 7, 1953, and said:
"We do not think that, in the
circumstance of these cases and on the materials on record, those orders ought
to be revised. We would not make any other observation lest it might prejudice
any of the parties." The High Court further gave the following direction:
"As the preliminary issue No.1 in the
two Asansol suits have been pending for over two years, it is only desirable
that the said issues should be heard out at once. We would, accordingly, direct
that the hearing of the said issues should be taken up by the learned
Subordinate Judge as expeditiously as possible and the learned Subordinate
Judge will take immediate steps in that direction." Now we may refer to
what took place in the Indore suit till then. On April 28, 1950, the appellant
applied to the Indore Court for staying that suit under ss. 10 and 151 Code of
456 The application was opposed by the
respondent on three grounds. The first ground was that according to the term in
the deed of dissolution, that Court alone could decide the disputes. The second
was that under the provisions of the Civil Procedure Code in force in Madhya
Bharat, the court at Asansol was not an internal Court and that the suit filed
in Asansol Court could not have the effect of staying the proceedings of that
The third was that the two suits were of
different nature, their subject matter and relief claimed being different. The
application for stay was rejected on July 5, 1951. The Court mainly relied on
the provisions of the Second proviso in the deed of dissolution. The High Court
of Madhya Bharat confirmed that order on August 20, 1953.
The position then, after August 20, 1953, was
that the proceedings in both the suits were to continue, and that the Asansol
Court had been directed to hear the issue of jurisdiction at an early date.
It was in these circumstances that the
respondent applied under s. 151, Code of Civil Procedure on September 14, 1953,
to the Indore Court, for restraining the appellant from continuing the
proceedings in the suit filed by him in the Court at Asansol. The respondent
alleged that the appellant filed the suit at Asansol in order to put him to
trouble, heavy expenses and wastage of time in going to Asansol and that he was
taking steps for the continuance of the suit filed in the Court of the
Subordinate Judge of Asansol. The appellant contested this application and
stated that he was within his rights to institute the suit at Asansol, that
that Court was competent to try it and that the point had been decided by
overruling the objections raised by the respondent and that the respondent's
objection for the stay or 457 proceedings in the Court at Asansol had been
rejected by that Court. He denied that his object in instituting the suit was
to cause trouble and heavy expenses to the respondent.
It may be mentioned that the respondent did
not state in his application that his application for the stay of the suit at
Asansol had been finally dismissed by the High Court of Calcutta and that that
Court had directed the trial Court to decide the issue of jurisdiction at an
early date. The appellant, too, in his objection, did not specifically state
that the order rejecting the respondentsí stay application had been confirmed
by the High Court at Calcutta and that that Court had directed for an early
hearing of the issue of jurisdiction.
The learned Additional District Judge,
Indore, issues interim injunction under O. XXXIX, Code of Civil Procedure, to
the appellant restraining him from proceeding with his Asansol suit pending
decision of the Indore suit, as the appellant was proceeding with the suit at
Asansol in spite of the rejection of his application for the stay of the suit
at Indore, and , as the appellant wanted to violate the provision in the deed
of dissolution about the Indore Court being the proper forum for deciding the
dispute between the parties. Against this order, the appellant went in appeal
to the High Court of Judicature at Madhya Bharat, contending that the
Additional District Judge erred in holding that he was competent to issue such
an interim injunction to the appellant under O. XXXIX of the Code of Civil
Procedure and that it was a fit case for the issue of such an injunction and
that, considering the provisions of O. XXXIX, the order was without
The High Court dismissed the appeal by its
order dated May 10, 1955. The learned Judges agreed with the contention that O.
XXXIX, r. 1 did not 458 apply to the facts of the case. They, however, held
that the order of injunction could be issued in the exercise of the inherent
powers of the Court under s. 151, C.P.C. It is against this order that the
appellant has preferred this appeal, by special leave.
On behalf of the appellant, two main
questions have been raised for consideration. The first is that the Court could
not exercise its inherent powers when there were specific provisions in the
Code of Civil Procedure for the issue of interim injunctions, they being s. 94
and O.XXXIX. The other question is whether the Court, in the exercise of its
inherent jurisdiction, exercised its discretion properly, keeping in mind the
facts of the case. The third point which came up for discussion at the hearing
related to the legal effect of the second proviso in the deed of dissolution on
the maintainability of the suit in the Court at Asansol.
We do not propose of express any opinion on
this question of jurisdiction as it is the subject matter of an issue in the
suit at Asansol and also in the suit at Indore and because that issue had not
yet been decided in any of the two suits.
On the first question it is argued for the
appellant that the provisions of cl. (c) of s. 94, Code of Civil Procedure make
it clear that interim injunctions can be issued only if a provisions for their
issue is made under the rules, as they provide that a Court may, if it is so
prescribed, grant temporary injunctions in order to prevent the ends of justice
from being defeated, that the word 'prescribed', according to s. 2, means
'prescribed by rules' and that rr. 1 and 2 of O.XXXIX lay down certain
circumstances in which a temporary injunction may be issued.
There is difference of opinion between the
High Court on this point. One view is that a Court 459 cannot issue an order of
temporary injunction if the circumstances do not fall within the provisions of
Order XXXIX of the Code:
Varadacharlu v. Narsimha Charlu (1),
Govindarajulu v. Imperial Bank of India (2), Karuppayya v.
Ponnuswami (3), Murugesa Mudali v. Angamuthu
Mudali (4) and Subramanian v. Seetarama (5). The other view is that a Court can
issue an interin injunction under circumstances which are not covered by Order
XXXIX of the Code, if the Court is of opinion that the interests of justice
require the issue of such interin injunction:
Dhaneshwar Nath v. Ghanshyam Dhar (6), Firm
Bichchha Ram v. Firm Baldeo Sahai (7),Bhagat Singh v. jagbir Sawhney (8) and
Chinese Tannery owners' Association v. Makhan Lal (9). We are of opinion that
the latter view is correct and that the Courts have inherent jurisdiction to
issue temporary injunctions in circumstances which are not covered by the
provisions of O.XXXIX, Code of Civil Procedure. There is no such expression in
94 which expressly prohibits the issue of a
temporary injunction in circumstances not covered by O. XXXIX or by any rules
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 s. 94 460 were not there 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 Court's 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 s. 94 of the Code have their effect and not in taking
away the right of the Court to exercise its inherent powers.
There is nothing in O. XXXIX, rr. 1 and 2,
which provide specifically that a temporary injunction is not to be issued in
cases which are not mentioned in those rules. The rules only provide that in
circumstances mentioned in them the Court may grant a temporary injunction.
Further, the provisions of s. 151 of the Code
make it clear that the inherent powers are not controlled by the provisions of
the Code. Section 151 reads:
"Nothing in this Code shall be deemed to
limit or otherwise affect the inherent power of the Court to make such orders
as may be necessary for the ends of the justice or to prevent abuse of the
process of the Court." A similar question about the powers of the Court to
issue a commission in the exercise of its powers under s. 151 of the Code in
circumstances not covered by s. 75 and Order XXVI, arose in Padam Sen v. The
State of Uttar Pradesh (1) and this Court held that the Court can issue a
commission in such circumstances. It observed at page 887 thus:
"The inherent powers of the Court are in
addition to the powers specifically conferred on 461 the Court by the Code.
They are complementary to those powers and therefore it must be held that the
Court is free to exercise them for the purpose mentioned in s. 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 or against the intentions of the
Legislature." These observations clearly mean that the inherent powers are
not in any way controlled by the provisions of the Code as has been
specifically stated in 151 itself. But those powers are not to be exercised
when their exercise may be in conflict with what had been expressly provided in
the Code or against the intentions of the Legislature. This restriction, for
practical purposes, on the exercise of these powers is not because these powers
are controlled by the provisions of the Code but because it should be presumed
that the procedure specifically provided by the Legislature for orders in
certain circumstances is dictated by the interests of justices.
In the above case, this Court did not uphold
the order of the Civil Court, not coming under the provisions of order XXVI,
appointing a commissioner for seizing the account books of the plaintiff on the
application of the defandants.
The order was held to be defective not
because the Court had no power to appoint a commissioner in circumstances not
covered by s. 75 and O. XXVI, but because the power was exercised not with
respect to matters of procedure but with respect to a matter affecting the
substantive rights of the plaintiff. This is clear from the further
observations made at page 887. This Court said:
"The question for determination is
whether the impugned order of the Additional Munsif appointing Shri Raghubir
Pershad Commissioner for seizing the plaintiff's books of account 462 can be
said to be an order which is passed by the Court in the exercise of its
inherent powers. The inherent powers saved by s. 151 of the Code are with
respect to the procedure to be followed by the Court in deciding the cause
before it. These powers are not powers over the substantive rights which any
litigant possesses. Specific powers have to be conferred on the Courts for
passing such orders which would affect such rights of a party. Such powers
cannot come within the scope of inherent powers of the Court in matters of
procedure, which powers have their source in the Court possessing all the
essential powers to regulate its practice and procedure." The case
reported as Maqbul Ahmad Pratap Narain Singh does not lay down that the
inherent powers of the Court are controlled by the provisions of the Code. It
simply holds that the statutory discretion possessed by a Court in some limited
respects under an Act does not imply that the Court possesses a general
discretion to dispense with the provisions of that Act. In that case, an
application for the preparation of a final decree was presented by the
decree-holder beyond the period of limitation prescribed for the presentation
of such an application. It was however contended that the Court possessed some
sort of judicial discretion which would enable it to relieve the decree-holder
from the operation of the Limitation Act in a case of hardship. To rebut this
contention, it was said at page 87:
"It is enough to say that there is no
authority to support the proposition contended for. In their Lordships' opinion
it is impossible to hold that, in a matter which is governed by Act, an Act
which in some limited respects gives the Court a statutory discretion, there
can be 463 implied in the Court, outside the limits of the Act, a general
discretion to dispense with its provisions. It is to be noted that this view is
supported by the fact that s. 3 of the Act is peremptory and that the duty of
the Court is to notice the Act and give effect to it, even though it is not
referred to in the pleadings".
These observations have no bearing on the
question of the Court's exercising its inherent powers under s. 151 of the
Code. The section 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 of justice. In the face of such a clear statement, it is not
possible to hold that the provisions of the Code control the 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.
We therefore repel the first contention
raised for the appellant.
On the second question, we are of opinion
that in view of the facts of the case, the Courts below were in error in
issuing a temporary injunction to the appellant restraining him from proceeding
with the suit in the Asansol Court.
The inherent powers are to be exercised by
the Court in very exceptional circumstances, for which the Code lays down no
The question of issuing an order to a party
restraining him from proceeding with any other suit in a regularly constituted
Court of law deserves 464 great care and consideration and such an order is not
to be made unless absolutely essential for the ends of justice.
In this connection, reference may usefully be
made to what was said in Cohen v. Rothfield (1) and which case appears to have
influenced the decision of the Courts in this country in the matter of issuing
such injunction orders.
Scrutton, L. J., said at page 413:
"Where it is proposed to stay an action
on the ground that another is pending, and the action to be stayed is not in
the Court asked to make the order, the same result is obtained by restraining
the person who is bringing the second action from proceedings with it. But, as
the effect is to interfere with proceedings in another jurisdiction, this power
should be exercised with great caution to avoid even the appearance of undue
interference with another Court".
And again, at page 415:
"While, therefore, there is jurisdiction
to restrain a defendant from suing abroad, it is a jurisdiction very rarely
exercised, and to be resorted to with great care and on ample evidence produced
by the applicant that the action abroad is really vexatious and useless."
The principle enunciated for a plaintiff in a earlier instituted suit to
successfully urge a restraint order against a subsequent suit instituted by the
defendant, is stated thus in this case, at page 415:
"It appears to me that unless the
applicant satisfies the Court that no advantage can be gained by the defendant
by proceeding with the action in which he is plaintiff in another part of the
King's dominions, the Court should not stop him from proceeding 465 with the
only proceedings which he, as plaintiff, can control. The principle has been
repeatedly acted upon." The injunction order in dispute is not based on
any such principle. In fact, in the present case, it is the defendant of the
previously instituted suit that has obtained the injunction order against the
plaintiff of the previously instituted suit.
The considerations which would make a suit
vexatious are well explained in Hyman v. Helm (1).
In that case, the defendant, in an action
before the Chancery Division of the High Court brought an action against the
plaintiffs in San Francisco.
The plaintiffs, is an action in England,
prayed to the Court to restrain the defendants from proceeding further with the
action in San Francisco. It was contended that it was vexatious for the
defendants to bring the action in San Francisco as the witnesses to the action
were residents of England, the contract between the parties was an English
contract and that its fulfillment took place is England. In repelling the
contention that the defendants' subsequent action in San Francisco was
vexatious, Brett, M. R., said at page 537:
"If that makes an action vexatious it
would be a ground for the interference of the Court, although there were no
action in England at all, the ground for alleging the action in San Francisco
to be vexatious being that it is brought in an inconvenient place.
But that is not the sort of vexation on which
an English Court can act.
It seems to me that where a party claims this
interference of the Court to stop another action between the same parties, it
lies upon him to shew to the Court that the multiplicity of actions is
vexatious, and that the whole burden of proof lies upon him.
He does not satisfy that burden of proof by
merely she- 466 wing that there is a multiplicity of actions, he must go
further. If two actions are brought by the same plaintiff against the same
defendant in England for the same cause of action, then, as was said in Mchonry
v. Lewis (22 Ch. D. 397) and the case of the Peruvian Guano Company v.
Bockwoldt (23 Ch.
D. 225), prima facie that is vexatious, and
therefore the party who complains of such a multiplicity of actions had made
out a prima facie case for the interference of the Court.
Where there is an action by a plaintiff in
England, and a crossaction by a defendant in England, whether the same prima
facie case of vaxation arises is a much more difficult point to decide and I am
not prepared to say that it does." It should be noticed that this question
for an action being vexatious was being considered with respect to the
subsequent action brought by the defendant in the previously instituted suit
and when the restraint order was sought by the plaintiff of the earlier suit.
In the case before us, it is the plaintiff of the subsequent suit who seeks to
restrain the plaintiff of the earlier suit from proceeding with his suit. This
cannot be justified on general principles when the previous suit has been
instituted in a competent Court.
The reasons which weighed with the Court
below for maintaining the order of injunction may be given in its own words as
"In the plaint filed in the Asansol
Court the defendant has based his claim on the deed of dissolution dated 22,
1945, but has avoided all references to the provisions regarding the agreement
to place the disputes before the Indore Courts. It was an action taken by the
present defendant in anticipation of the present suit and was taken in flagrant
breach 467 of the terms of the contract. In my opinion, the defendant's action
constitutes misuse and abuse of the process of the Court." The appellant attached
the deed of dissolution to the plaint he filed at Asansol. Of course, he did
not state specifically in the plaint about the proviso with respect to the
forum for the decision of the dispute. Even if he had mentioned the term, that
would have made no difference to the Asansol Court entertaining the suit, as it
is not disputed in these proceedings that both the Indore and Asansol Courts
could try the suit in spite of the agreement. The appellant's institution of
the suit at Asansol cannot be said to be in anticipation of the suit at Indore,
which followed it by a few months. There is nothing on the record to indicate
that the appellant knew, at the time of his instituting the suit, that the
respondent was contemplating the institution of a suit at Indore.
The notices which the respondent gave to the
appellant were in December 1945. The suit was filed at Asansol in August 1948,
more than two years and a half after the exchange of correspondence referred to
in the plaint filed at Asansol.
In fact, it is the conduct of the respondent
in applying for the injunction in September 1953, knowing full well of the
order of the Calcutta High Court confirming the order refusing stay of the
Asansol suit and directing that Court to proceed with the decision of the issue
of jurisdiction at an early date, which can be said to amount to an abuse of
the process of the Court.
It was really in the respondent's interest if
he was sure of his ground that the issue of jurisdiction be decided by the
Asansol Court expeditiously, as ordered by the Calcutta High Court in May 1953.
If the Asansol Court had clearly no jurisdiction to try the suit in view of the
terms of the deed of dissolution, the decision of that issue 468 would have
finished the Asansol suit for ever. He, however, appears to have avoided a
decision of that issue from that Court and, instead of submitting to the order
of the Calcutta High Court, put in this application for injunction. It is not
understandable why the appellant did not clearly state in his objection to the
application what the High Court of Calcutta had ordered. That might have led
the consideration of the question by the Indore Court in a different
It is not right to base an order of
injunction, under s. 151 of the Code, restraining the plaintiff from proceeding
with his suit at Asansol, on the consideration that the terms of the deed of
dissolution between the parties make it a valid contract and the institution of
the suit at Asansol is in breach of it. The question of jurisdiction of the Asansol
Court over the subject matter of the suit before it will be decided by that
Court. The Indore Court cannot decide that question. Further, it is not for the
Indore Court to see that the appellant observes the terms of the contract and
does not file the suit in any other Court. It is only in proper proceedings
when the Court considers alleged breach of contract and gives redress for it.
For the purposes of the present appeal, we
assume that the jurisdiction of the Asansol Court is not ousted by the provisions
of the proviso in the deed of dissolution, even though that proviso expresses
the choice of the parties for having their disputes decided in the Court at
Indore. The appellant therefore could choose the forum in which to file his
suit. He chose the Court at Asansol, for his suit. The mere fact that Court is
situate at a long distance from the place of residence of the respondent is not
sufficient to establish that the suit has been filed in that Court in order to
put the respondent to trouble and harassment and to unnecessary expense.
469 It cannot be denied that it is for the
Court to control the proceedings of the suit before it and not for a party, and
that therefore, an injunction to a party with respect to his taking part in the
proceedings of the suit would be putting that party in a very inconvenient
It has been said that the Asansol Court would
not act in a way which may put the appellant in a difficult position and will
show a spirit of cooperation with the Indore Court. Orders of Court are not
ordinarily based on such considerations when there be the least chance for the
other Court not to think in that way. The narration of facts will indicate how
each Court has been acting on its own view of the legal position and the conduct
of the parties.
There have been case in the past, though few,
in which the Court took no notice of such injunction orders to the party in a
suit before them. They are: Menon v. Parvathi Ammal(1), Harbhagat Kaur v.
Kirpal Singh (2) and Shiv Charan Lal v. Phool Chand (3). In the last case, the
Agra Court issued an injunction against the plaintiff of a suit at Delhi
restraining him from proceeding with that suit. The Delhi Court, holding that
the order of the Agra Court did not bind it, decided to proceed with the suit.
This action was supported by the High Court. Kapur J., observed at page 248:
"On the facts as have been proved it
does appear rather extra-ordinary that a previously instituted suit should be
sought to be stayed by adopting this rather extraordinary procedure." It
is admitted that the Indore Court could not have issued an induction or
direction to the Asansol Court not to proceed with the suit. The effect of
issuing an injunction to the plaintiff of the 470 suit at Asansol, indirectly
achieves the object which an injunction to the Court would have done.
A court ought not to achieve indirectly what
it cannot do directly. The plaintiff, who has been restrained, is expected to
bring the restraint order to the notice of the Court. If that Court, as
expected by the Indore Court, respects the injunction order against the
appellant and does not proceed with the suit, the injunction order issued to
the appellant who is the plaintiff in that suit is as effective an order for
arresting the progress of that suit as an injunction order to the Court would
have been. If the Court insists on proceeding with the suit, the plaintiff will
have either to disobey the restraint order or will run the risk of his suit
being dismissed for want of prosecution. Either of these results is a
consequence which an order of the Court should not ordinarily lead to.
The suit at Indore which had been instituted
later, could be stayed in view of s. 10 of the Code. The provisions of that
section are clear, definite and mandatory. A Court in which a subsequent suit
has been filed is prohibited from proceeding with the trial of that suit in
certain specified circumstances. When there is a special provision in the Code
of Civil Procedure for dealing with the contingencies of two such suits being
instituted, recourse to the inherent powers under s. 151 is not justified. The
provisions of s. 10 do not become inapplicable on a Court holding that the
previously instituted suit is a vexatious suit or has been instituted in
violation of the terms of the contract. It does not appear correct to say, as
has been said in Ram Bahadur v.
Devidayal Ltd. (1) that the Legislature did
not contemplate the provisions of s. 10 to apply when the previously instituted
suit be held to be instituted in those circumstances. The provisions of s. 35A
indicate that the Legislature was aware of false or vexatious claims or
defences 471 being made, in suits, and accordingly provided for compensatory
cost. The Legislature could have therefore provided for the non-application of
the provisions of s. 10 in those circumstances, but it did not. Further, s. 22
of the Code provides for the transfer of a suit to another Court when a suit
which could be instituted in any one of two or more Courts is instituted in one
of such Courts. In view of the provisions of this section, it was open to the
respondent to apply for the transfer of the suit at Asansol to the Indore Court
and, if the suit had been transferred to the Indore Court, the two suits could
have been tried together. It is clear, therefore, that the Legislature had
contemplated the contingency of two suits with respect to similar reliefs being
instituted and of the institution of a suit in one Court when it could also be
instituted in another Court and it be preferable, for certain reasons, that the
suit be tried in that other Court.
In view of the various considerations stated
above, we are of opinion that the order under appeal cannot be sustained and
cannot be said to be an order necessary in the interests of justice or to
prevent the abuse of the process of the Court. We therefore allow the appeal
with costs, and set aside the order restraining the appellant from proceeding
with the suit at Asansol.
SHAH, J.-I have perused the judgment
delivered by Mr. Justice Dayal. I agree with the conclusion that the appeal
must succeed but I am unable to hold that civil courts generally have inherent
jurisdiction in cases not covered by rr. 1 and 2 of O. 39, Civil Procedure Code
to issue temporary injunctions restraining parties to the proceedings before
them from doing certain acts.
The powers of courts, other than the
Chartertd High Courts, in the exercise of their ordinary original Civil
jurisdiction to issue temporary injunctions are defined by the terms of s. 94(1)(c)
and 472 O. 39, Civil Procedure Code. A temporary injunction may issue if it is
so prescribed by rules in the Code. The provisions relating to the issue of
temporary injunctions are to be found in O. 39 rr. 1 and 2: a temporary
injunction may be issued only in those cases which come strictly within those
rules, and normally the civil courts have no power to issue injunctions by
transgressing the limits prescribed by the rule.
It is true that the High Courts constituted
under Charters and exercising ordinary original jurisdiction do exercise
inherent jurisdiction to issue an injunction to restrain parties in a suit
before them from proceedings with a suit in another court, but that is because
the Chartered High Courts claim to have inherited this jurisdiction from the
Supreme Courts of which they were successors. This jurisdiction would be saved
by s. 9 of the Charter Act (24 and 25 Vict. c. 104) of 1861, and in the Code of
Civil Procedure, 1908 it is expressly provided by s. 4. But the power of the
civil courts other than the Chartered High Courts must be found within s. 94
and O. 39 rr. 1 and 2 of the Civil Procedure Code.
The Code of Civil Procedure is undoubtedly
not exhaustive: it does not lay down rules for guidance in respect of all
situations nor does it seek to provide rules for decision of all conceivable
cases which may arise. The civil courts are authorised to pass such orders(as
may be necessary for the ends of justice, or to prevent abuse of the process of
court, but where an express provision is made to meet a particular situation
the Code must be observed, an departure there from is not permissible. As
observed in L. R.
62 I. A. 80 (Maqbul Ahmed v. Onkar Pratab)
"It is impossible to hold that in a matter which is governed by an Act,
which in some limited respects gives the court a statutory discretion, there
can be implied in 473 court, outside the limits of the Act a general discretion
to dispense with the provisions of the Act." Inherent jurisdiction of the
court to make order ex debito justitiae is undoubtedly affirmed by s. 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.
Power to issue an injunction is restricted by
s. 94 and O. 39, and it is not open to the civil court which is not a Chartered
High Court to exercise that power ignoring the restriction imposed there by, in
purported exercise of its inherent jurisdiction. The decision of this Court in
Padam Sen v. The State of Uttar Pradesh(1) does not assist the case of the
appellant. In Padam Sen's case this Court was called upon is a original appeal
to consider whether an order of a Munsiff appointing a commissioner for seizing
certain account books of the plaintiff in a suit pending before the Munsiff was
an order authorised by law. It was the case for the prosecution that the
appellants offered a bribe to the commissioner as consideration for being
allowed to tamper with entries therein, and thereby the appellants committed an
offence punishable under s. 165A of the Indian Penal Code. This Court held that
the commissioner appointed by the civil court in exercise of powers under O. 26
C. P. Code did not hold any office as a public servant and the appointment by
the Munsiff being without jurisdiction, the commissioner could not be deemed to
be a public servant. In dealing with the argument of counsel for the appellants
that the civil court had inherent powers to appoint a commissioner in exercise
of authority under s. 151 Civil Procedure Code for purposes which do not fall
474 within the provisions of s. 75 and O. 26 Civil Procedure Code, the Court
"Section 75 of the Code empowers the
Court to issue a commission, subject to conditions and limitations which may be
prescribed, for four purposes, viz., for examining any person, for making or
adjusting accounts and for making a partition. Order XXVI lays down rules
relating to the issue of commissions and allied matters. Mr. Chatterjee,
learned counsel of the appellants, has submitted that the powers of a Court
must be found within the four corners of the Code and that when the Code has
expressly dealt with the subject matter of commissions in s. 75 the Court
cannot invoke its inherent powers under s. 151 and thereby add to its powers.
On the other hand, it is submitted for the State, that the Code is not
exhaustive and the Court, in the exercise of its inherent powers, can adopt any
procedure not prohibited by the Code expressly or by necessary implication if
the Court considers it necessary for the ends of justice or to prevent abuse of
the process of the Court.
x x x x x x x x The inherent powers of the
Court are in addition to the powers specifically conferred on the Court by the
Code. They are complementary to those powers and therefore it must be held that
the Court is free to exercise them for the purposes mentioned in s. 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 or against the intentions of the
It is also well recognized that the inherent
power is not to be exercised in a manner which will be 475 contrary or
different from the procedure expressly provided in the Code." The Court in
that case held that in exercise of the powers under s. 151 of the Code of Civil
Procedure, 1908 the Court cannot issue a commission for seizing books of
account of plaintiff-a purpose for which a commission is not authorized to be
issued by s. 75.
The principle of the case is destructive of
the submission of the appellants. Section 75 empowers the Court to issue a
commission for purposes specified therein: even though it is not so expressly
stated that there is no power to appoint a commissioner for other purposes, a
prohibition to that effect is, in the view of the Court in Padam Sen's case,
implicit in s. 76. By parity of reasoning, if the power to issue injunctions
may be exercised, if it is prescribed by rules in the Orders in Schedule I, it
must he deemed to be not exercisable in any other manner or for purposes other
than those set out in O. 39 rr. 1 and 2.