Vareed
Jacob Vs. Sosamma Geevarghese & Ors [2004] Insc 312 (21 April 2004)
S.B.
Sinha.
(@
S.L.P. (CIVIL) NO. 18699 OF 2001) S.B. SINHA, J :
Leave
granted.
The
short question involved in this appeal which arises out of a judgment and order
dated 27.7.2001 in C.R.P. No. 2003 of 1998-B passed by the High Court of Kerala
at Ernakulam is as to whether on restoration of a suit an order of injunction
passed is automatically revived or not.
An
order of injunction can be passed under Order 39, Rules 1 and 2 of the Code of
Civil Procedure. Such an order can also be passed by the Court in exercise of
its inherent jurisdiction in the event the prayer for grant of injunction does
not fall within the scope of Section 94 of the Code of Civil Procedure read
with Order 39, Rules 1 and 2 thereof.
An
order of injunction can be granted by the Court only when there exists any
power therefor. In Morgan Stanley has held that having regard to the scheme of
the Consumer Protection Act, the consumer courts do not have any power to issue
injunction. The jurisdiction to issue an order of injunction, appointment of a
receiver or to pass an order of attachment before attachment would, therefore,
depend upon the scheme of the statute and the powers conferred on the Court
thereby. This may be one of the factors which is required to be taken into
consideration for making a distinction between a supplemental proceedings and
incidental proceedings.
A
court or a tribunal entitled to adjudicate upon an issue arising in a lis
between the parties has the requisite jurisdiction to pass orders which are
incidental thereto so as to enable it to effectively adjudicate the same. Such
a power of a Court or a Tribunal to do all things necessary to effectively
adjudicate upon the lis need not, in other words, be specifically conferred by
the statute; such power being ancillary to the power of the court. It is
adjunct to the court's/tribunal's power of adjudication.
The
Code of Civil Procedure uses different expressions in relation to incidental
proceedings and supplemental proceedings. Incidental proceedings are referred
to in Part III of the Code of Civil Procedure whereas Supplemental Proceedings
are referred to in Part VI thereof.
Is
there any difference between the two types of proceedings? A distinction is to
be borne in mind keeping in view the fact that the incidental proceedings are
in aid to the final proceedings. In other words an order passed in the
incidental proceedings will have a direct bearing on the result of the suit.
Such proceedings which are in aid of the final proceedings cannot, thus, be
held to be at par with supplemental proceedings which may not have anything to
do with the ultimate result of the suit.
Such a
supplemental proceeding is initiated with a view to prevent the ends of justice
from being defeated. The supplemental proceedings may not be taken recourse to
as a routine matter but only when an exigency arises therefor.
The
orders passed in the supplemental proceedings may some time cause hardships to
the other side and, thus, are required to be taken recourse to when a situation
arises therefor and not otherwise. There are well-defined parameters laid down
by the Court from time to time as regards the applicability of the supplemental
proceedings.
Incidental
proceedings are, however, taken recourse to in aid of the ultimate decision of
the suit which would mean that any order passed in terms thereof, subject to
the rules prescribed therefor, would have a bearing on the merit of the matter.
Any order passed in aid of the suit are ancillary powers. Whenever an order is
passed by the Court in exercise of its ancillary power or in the incidental
proceedings, the same may revive on revival of the suit.
But so
far as supplemental proceedings are concerned, the Court may have to pass a
fresh order.
An
order to furnish security to produce any property belonging to a defendant and
to place the same at the disposal of the Court or order the attachment of any
property as also grant of a temporary injunction or appointment of a receiver
are supplemental in nature. The effect of such order may be felt even after
decree is passed. An order of attachment passed under Order 38 of the Code of
Civil Procedure would be operative even after the decree is passed. Such an
order of attachment passed under Order 38 can be taken benefit of by the decree
holder even after a decree is passed. An order of temporary injunction passed
in a suit either may merge with a decree of permanent injunction or may have an
effect even if a decree is passed, as, for example, for the purpose of
determination as regard the status of the parties violating the order of
injunction or the right of a transferee whom have purchased the property in
disobedience of the order of injunction. The orders passed in supplemental
proceedings may have to be treated distinctly as opposed to an order which is
ancillary in nature or which has been passed in the incidental proceedings.
The
question must, therefore, be considered having regard to the aforementioned
legal principles in mind. We may at this juncture notice those decisions
wherein it has been held that the interlocutory order is automatically revived
on restoration of suits.
1956 Patna 271] the Court was concerned with
the revival of an order of stay. It was held, having regard to the scheme of
law laid down in the Code of Civil Procedure that interlocutory orders like one
of 'stay' are nothing but ancillary orders and they are all meant to aid and
supplement the ultimate decision arrived at in the main suit or appeal. Even in
such a situation when there is any other factor on the record or in the order
passed to show to the contrary even an order of stay shall not automatically
revive. This decision, therefore, is an authority for the proposition that the
Code of Civil Procedure lays down two different schemes, one in relation to the
ancillary orders which would aid and supplement the decisions arrived at in the
main appeal and the one which may not have to do anything therewith.
1935 Madras 365] a Full Bench of the Madras
High Court held that even an order of attachment before judgment would
automatically revive on restoration of a suit. In that case, Beesley, CJ
speaking for the Full Bench, however, erroneously proceeded on the basis that
an order of attachment is also an ancillary order and in that view of the
matter held:
"...It
does not seem to me reasonable that the plaintiff in a suit who has got an
attachment before judgment should have again, after the restoration of the suit
after its dismissal for default, to apply to the Court for a fresh attachment
and that having done so the defendant should have to apply to raise the
attachment by producing a surety or sureties. The common sense view of the
matter is that all ancillary orders should be restored on the suit's restoration
without any further orders." The question as to whether an order of
attachment is a supplemental order or not was not at all considered therein.
1968 Mysore
283], a learned Single Judge followed Bankim Chandra and Others (supra) and Tavvala
Veeraswamy (supra) which considered such interlocutory orders to have been
passed in exercise of the Court's ancillary powers.
Narayan
Gupta [(1985) 3 SCC 53], this Court was concerned with a case as regard the
power of the court to extend the time for depositing rent by the defendant.
Interpreting Section 11A of Bihar Buildings (lease, Rent and Eviction) Control
Act, 1947, it was held that the Court had such power; differing with the view
of the High Court as regard interpretation of such a provision as directory in
stead and in place of being mandatory.
However,
an observation had been made that the Learned Trial Judge did grant relief to
the tenant by refusing to strike off the defence on an erroneous view that the
direction did not revive after setting aside of the ex parte order. The said
observation is obiter in nature and in any event, no detailed discussions as
regard the nature of the power of the Court under Section 148 of the Code of
Civil Procedure had been made. The jurisdiction of the court under Section 148
of the Code of Civil Procedure is an ancillary power and not a supplementary
one.
234], Delhi High Court was concerned with an
ancillary power of a court as would appear from the following observations:
"7...It
is, therefore, obvious that on setting the dismissal aside, the court has to
appoint a day for proceeding with the suit and not for trying the suit de novo.
This indicates that the further proceedings in the suit have to start from the
stage and point where they were pending before the suit was dismissed and there
is no requirement of law that upon such restoration the entire proceedings must
be reached again.
Consequently
on the restoration of a dismissed suit, all the previous proceedings and the
interim orders revive and do not require a fresh order to give them vigour."
369], the Court while again dealing with a rent control matter held that when
an order has been passed under Sub- Section (3) of Section 13 of the Act as
existed at the relevant time, no fresh order is required to be passed. was
concerned with an application for amendment of plaint in relation whereto a
contention was raised that the said application could not have been brought
into life as the appeal was dismissed holding:
"...When
restoration of the suit or appeal is allowed, the parties are to be restored to
the same position in which they were situated when the court dismissed the suit
or appeal. Then on restoring the appeal dismissed for default, the ancillary
matters disposed of in consequence of such dismissal must also get restored and
the consequential orders passed on dismissal of the suit or appeal should
automatically get vacated." 67], a Full Bench of the Allahabad High Court
noticing a large number of decisions including some of which have been referred
to hereinbefore held:
"17.
The language of Order 38, R.9 no doubt is capable of both the interpretations
but the well-recognised rule of interpretation is that where the language is
capable of two interpretations and where the section of the Act has received a
judicial construction and the said construction has long been acted on without
any alteration in the statute, the interpretation so recognised and acted on is
to be accepted on the principle of stare decisis because it is the general
maxim that even a point of law has been settled by decision it forms a
precedent which is not afterwards to be departed from. The latter part of the
rule which requires that the attachment shall be removed when the suit is
dismissed is either directory or mandatory. If it is directory the attachment
is removed automatically in spite of no order of the Court. If it is mandatory,
then the duty of the Court is to pass an order and a party cannot be penalised
where the consequences for the dismissal appear to be the witdrawal of the
attachment before judgment. The Lower appellate Court in these circumstances
was right in upholding respondent No. 1's claim based on the transfer in his favour
and rejecting the plaintiff- appellant's contentions." The question before
us, however, had received the attention of the Court as would appear from a
long line of decisions. was held:
"That
temporary injunction came to an end on the passing of the decree, and nothing
has happened to revive or keep alive the order for the temporary injunction. Dwarka
Prasad was not left without his remedy. He might have applied to this Court for
an injunction pending the determination of his appeal.
No
such application has been made to this Court, and therefore, I am of opinion
that Musammat Chunni Kuar was and is entitled to have the money paid out of Cour
to her and to have this appeal allowed with Costs. The view I take is fortified
by the judgment in Hossein (14 W.R. 384)" As far back in 1887, the Allhabad
High Court while considering the provisions of Sections 311 of the Old Code of
Civil Procedure which is in pari materia with Order 38 Rule 5 of the Code of
Civil Procedure, 1908 and referring to contention which is in the following
terms:
"On
the other hand, Mr. Colvin relies upon the last part of s.488 to show that an
attachment before judgment comes to an end "when the suit is
dismissed;" and the learned counsel also lays stress upon the provisions
of s. 490, and argues that the words of that section contemplate that it is
only when a decree is given in favour of the plaintiff that re-attachment in
execution of such decree is dispensed with, implying that such attachment is
necessary where the suit ended in dismissal of the plaintiff's claim. For this
contention the learned counsel also relies upon the ruling of the learned
Prasad where it was held that a temporary injunction under s. 492,
notwithstanding the use of the phrase "till further orders," comes to
an end on the termination of the suit in which such injunction was passed,
although no express order had been made by the Court withdrawing or setting
aside such injunction." Mahmood, J. agreeing with the said contention
observed:
"I
am of opinion that this contention is sound, and that the case last cited,
though relating to temporary injunction, proceeds upon a principle analogous to
attachments before judgment, both being ad interim proceedings which naturally
cease to have any force as soon as the suit itself, in respect of which they
were taken, comes to a close. In other words, an attachment before judgment
under s.488, like a temporary injunction under s.492, becomes functus officio
as soon as the suit terminates." This decision, therefore, is an authority
for two propositions, namely,
(i) an
order of attachment before judgment does not entail an automatic revival upon
restoration of a suit which is dismissed for default; and
(ii) for
that purpose an order of injunction would be treated at par with an order of
attachment before judgment.
Bench
of the Madras High Court by referring such proceeding as a supplemental
proceeding required for grant of extraordinary relief as contra-distinguished
from an ancillary order which is granted in the aid of a proceeding, held:
"10.
An attachment before judgment is in the nature of an interlocutory order.
It is
an extra ordinary relief granted to a plaintiff even before his claim is
adjudicated upon and found to be true and if a suit is dismissed either for
default or on its merits by the trial Court and the attachment before judgment
has therefore to cease, he can certainly have not as much grievance as a person
who has obtained a decree and attached property of the judgment-debtor whose
attach property has been questioned and decided in summary proceedings and
which are made expressly subject to a decision in a regular suit. Moreover, it
cannot also be urged that all interlocutory orders like say those passed on
applications for temporary injunction the operation of which would have to
cease on the dismissal of a suit, would automatically be revived or can be
deemed to be in force without any further orders by an appellate court or by
the same Court after the suit is dismissed. To hold so would lead to obvious
and real difficulties. It is not also as though the plaintiff in such a case
has no remedy. He could always apply to the same Court if a suit which has been
dismissed for default is restored to file or to an appellate court which has
also ample powers to grant an order of attachment before judgment under the
provisions of S. 107(2), Civil P.C. In any event the possibility of hardship
cannot warrant the ignoring of the express provisions of O.38, R.9 by which it
is specifically laid down that an attachment before judgment shall cease by the
dismissal of a suit." It will, therefore, be seen that the Court has in
that case also equated the order of injunction with an order of attachment.
[AIR
1976 All 264] it was held:
"4.
As long ago as 1887 a question of similar nature arose for consideration Dwarka
Prasad (1887 All WN 297). It was observed therein that an attachment before
judgment like a temporary injunction becomes functus officio as soon as the
suit terminates. Again, a question pertaining to attachment before judgment
came up for consideration Mal (1888) ILR 10 All 506. Relying on Chunni Kuar's
case (supra) that principle was reiterated with approval.
The
other High Courts also considered this question in a number of cases.
Finally,
the question was raised in Court as to whether on the dismissal of a suit in
default in atttachment before judgment automatically lapsed and a fresh
attachment was necessary on the restoration of the suit, or whether on the
restoration of the suit the attachment previously made is revived or is
survived. This question was referred to a Full Bench of the Court. The majority
view was that on the dismissal of suit in default the attachment before
judgment automatically ceases and a fresh attachment is necessary on the
restoration of the suit." 94], it was held:
"6.
The only question for consideration in this application is whether on the
setting aside of the order of rejection of the plaint and its remand by the
appellate court, the temporary injunction issued by the trial Court stood
revived? It is well settled law that interlocutory orders which are meant to
aid and supplement the ultimate decision arrived at in the main suit or appeal
would be ancillary order and such order would stand revived automatically on
the restoration of the suit. Orders granting temporary injunction do not aid
and supplement the ultimate decision of the suits. As such they cannot be said
to be ancillary orders." 1981 Patna 102] following Bankim Chandra (supra),
the Patna High Court holding that an order striking off of tenant's defence for
non deposit of rent automatically revived, L.M. Sharma, J. (as learned Chief
Justice of India then was), however, noticed that by restoration of the suit,
the order dated 13.1.1978 whereby an order directing to deposit the arrears of
rent did not revive, stated the law thus:
"The
order in regard to striking off the defence is vitally different from the order
directing the arrears of rent to be deposited. I, therefore, hold that in the
present case, the order dated 6.2.1979 revived automatically on the restoration
of the suit and the view taken by the court below is correct." The
Parliament consciously used two different expressions 'incidental proceedings'
and 'supplemental proceedings' which obviously would carry two different
meanings.
The
expression 'ancillary' means aiding, auxiliary; subordinate; attendant upon;
that which aids or promotes a proceeding regarded as the principal.
The
expression 'supplementary proceeding' on the other hand, would mean a separate
proceeding in an original action, in which the court where the action is
pending is called upon to exercise its jurisdiction in the interest of justice.
The
expression 'incidental' may mean differently in different contexts. While
dealing with a procedural law, it may mean proceedings which are procedural in
nature but when it is used in relation to an agreement or the delegated
legislation, it may mean something more; but the distinction between an
incidental proceeding and a supplemental proceeding being obvious cannot be
ignored.
Indisputably,
the effect of an order passed under different provisions of Section 94 of the
Code of Civil Procedure would be different. They have been so legislated
keeping in view different exigencies of circumstances but it must not be
forgotten that the power thereunder is to be exercised in the interest of
justice. The statutory scheme therefor is that supplemental proceeding should
be taken recourse to only when the interest of justice is required to be
sub-served, although the interlocutory order may not have anything to do with
the ultimate decision of the court.
The
consequences of an order of attachment before judgment as also, an order of
injunction can be grave. By reason of such an order, a right of a party to the lis
may be affected or remained under animated suspension. By reason of an
interlocutory order whether in terms of Order 38, Order 39 or Order 40, a
person's right to transfer a property may remain suspended as a result whereof
he may suffer grave injury. When the suit is dismissed for default, he may
exercise his right. If it is to be held that on restoration of the suit the
order of attachment before judgment or an order, an injunction is automatically
revived, as a result whereof the status of the parties would be in the same
position as on the date of passing of the initial interlocutory order, they may
be proceeded with for violation of the order of injunction or an order of
attachment before judgment. The right of subsequent purchaser may also be
affected. By reason of taking recourse to a supplemental proceedings, the
rights of the parties and in some cases the right of even a third party cannot
be allowed to be taken away.
In
this case, this Court is not concerned with the question as to whether
substantive changes have been made in Order 38 Rule 5 by Code of Civil
Procedure, 1908 vis-`-vis Code of Civil Procedure, 1859. The question is as to
whether the power of the court to pass an order of attachment before judgment
is an ancillary power or a supplemental power. The provisions of Order 38 and
Order 39 have been equated by the court presumably not on the ground that they
provide for different interlocutory reliefs but having regard to the nature of
the proceedings vis-`-vis the reliefs which can ultimately be granted. It would
also not be correct to hold that the attachment proceeding is in effect and substance
different from an order of injunction on the ground that the former is a part
of execution process.
The
provisions of Order 38 Rule 9 of the Code of Civil Procedure, in my considered
opinion, are not of much importance. The rule confers an independent and
substantive statutory right on a defendant to bring it to the notice of the
court that he is in a position to furnish security to meet the claim of the
plaintiff and as such an order of attachment need not continue. The order of
attachment also comes to an end in terms of the aforementioned provision when
the suit is dismissed. The very nature of an order of attachment entails that
in the event of dismissal of suit, the order comes to an end. Such a provision
has been made by the legislature by way of abundant caution. Although it is of
not much importance but we may notice that there exists a conflict of opinion
as regard consequences of an order of attachment upon reversal of a judgment of
dismissal of suit in appeal, namely, as to whether in the event the suit is
decreed by the appellate court, an order of attachment would automatically be
restored or not.
It is
also of some importance that there exists a view that an order of dismissal of
a suit does not render an order of attachment void ab initio as a sale of
property under order of attachment would be invalid even after the date of such
sale and the attachment is withdrawn.
A
converse case may arise when the property is sold after the suit is dismissed
for default and before the same is restored. Is it possible to take a view that
upon restoration of suit the sale of property under attachment before judgment
becomes invalid? The answer to the said question must be rendered in the
negative. By taking recourse to the interpretation of the provisions of the
statute, the court cannot say that although such a sale shall be valid but the
order of attachment shall revive.
Such a
conclusion by reason of a judge-made law may be an illogical one.
A
construction which preserves the rights of the parties pending adjudication
must be allowed to operate vis- `-vis the privilege conferred upon a plaintiff
to obtain an interlocutory order which loses its force by dismissal of suit
and, thus, may not revive, unless expressly directed, on restoration of the suit.
A suit
or a proceeding which is barred by limitation would oust the jurisdiction of
the court to entertain the same. When a proceeding is barred by limitation, it
culminates in a right to the non-suitor. Such a right can be curtailed only by
express terms of a statute. A statute may furthermore provide for extension of
a period of limitation in certain situation. The Code of Civil Procedure is
silent as to the effect of revival of the interlocutory order on restoration of
a suit. This case demonstrates as to how a person for no fault on his part
would suffer prejudice when such a right is being taken away. Such a provision
which would confer jurisdiction of a court to entertain a proceeding which it
otherwise would not have in terms of the Limitation Act, 1963, in my opinion,
should be strictly construed.
From
the decisions rendered by different High Courts, therefore, the law that
emerges is that there exists a distinction between ancillary orders which are
required to be passed by the court in aid of or supplemental to the ultimate
decision of the Court; as contradistinguished to an order passed under Part VI
of the Code of Civil Procedure in terms whereof an order is passed in favour of
a party to the lis which may not have a bearing on the ultimate result of the
suit. An interlocutory order passed in a suit may not also have anything to do
with the relief prayed for by the plaintiff. An order for injunction or
appointment of receiver can be passed even at the instance of the defendant. An
order which has been obtained by the defendant may not revive on restoration of
the suit.
Supplementary
proceedings, thus, envisage that such a power must be specially conferred upon
the Court which are required to be passed in the interest of justice
irrespective of the fact as to whether the same would ultimately have any
bearing with the reliefs claimed in the suit or not. In absence of any
statutory provisions such a power cannot be exercised whereas a power which is
ancillary or incidental, can always be exercised by the Court in aid of and
supplemental to the final order that may be passed.
Furthermore,
a jurisdiction expressly conferred by a statute and an inherent power, subject
to just exceptions, must be treated differently.
I am,
therefore, of the opinion that the interim order of injunction did not revive
on restoration of the suit.
The
Courts, however, would be well-advised keeping in view the controversy to
specifically pass an order when the suit is dismissed for default stating when
interlocutory orders are vacated and on restoration of the suit, if the court
intends to revive such interlocutory orders, an express order to that effect
should be passed.
I
respectfully dissent with the opinion of Hon'ble theChief Justice of India.
I
will, therefore, set aside the impugned order and allow the appeal. No costs.
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