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Andhra Pradesh High Court
Judges : S.S.M.QUADRI
H.S.W.Construction Ltd. - Appellant
Versus
Tarapore and Co.Madras - Respondent
Decided On : 01-17-89
CIVIL REVISION - MAINTAINABILITY - INTERIM INJUNCTION GRANTED BY HIGH COURT DURING VACATION - WHETHER REVISION LIES - ANDHRA PRADESH CIVIL COURTS ACT, 1972 (ACT 21 OF 1972), SS. 32, 33 - CODE OF CIVIL PROCEDURE, 1908 (ACT 5 OF 1908), S. 115.
Fact of the Case:
The petitioner, a Government of India undertaking, entered into a contract with the respondent company for construction of civil works in the blast furnace zone of Visakhapatnam Steel Plant. Disputes arose between the parties, which were referred to arbitration. During the arbitration proceedings, the petitioner terminated the contract, which was challenged by the respondent in suits filed in the court of District Munsif, Visakhapatnam seeking injunction not to terminate the contract and other incidental reliefs. The respondent also prayed for temporary injunction against the petitioner restraining it from encashing the bank guarantees. The learned Dist. Munsif granted ex parte interim injunction. While the matter stood thus, the respondent filed C. M. P. No. 16290 to 16294 of 1988 in the High Court during Dasara Vacation of 1988 under Section 33 of the Andhra Pradesh Civil Courts Act, 1972 on 21-10-1988, interim order was granted by the High Court in C. M. P. No. 16292 of 1988 restraining the petitioner from interfering with the removal of the machinery-and material by the respondent. In C. M. P. No. 16293 of 1988 interim injunction was granted restraining the petitioner from awarding the pending works under the said contract pending final measurement of the work and in C. M. P. No. 16294 of 1988 interim injunction was granted restraining the petitioner from encashing the bank guarantees.
Finding of the Court:
1. The order passed by the High Court during vacation is not an order passed by a court subordinate to the High Court, therefore, power under Section 115, C. P. C. cannot be invoked to revise the said order. 2. An appeal lies against an ex parte interim injunction granted under O. 39, R. 1, C. P. C. so revision under Section 115, C. P. C. is not maintainable. 3. No C. R. P. lies against an ex parte interim order as the order does not amount to a "case decided" within the meaning of Section 115, C. P. C. In any event, the order under revision does not suffer from any error of jurisdiction so as to be amenable to the jurisdiction of the High Court under Section 115, C. P. C.
Issues: 1. Whether a civil revision petition filed under S. 115 of the Code of Civil Procedure against an ex parte interim order passed by the High Court during Dasara vacation on an application under S. 33 of the Andhra Pradesh Civil Courts Act, 1972 (for short `the Act) is maintainable? 2. Whether the order passed by the High Court during vacation is an order passed by a court subordinate to the High Court? 3. Whether an appeal lies against an ex parte interim injunction granted under O. 39, R. 1, C. P. C.? 4. Whether a C. R. P. lies against an ex parte interim order as the order does not amount to a "case decided" within the meaning of Section 115, C. P. C.?
Ratio Decidendi: 1. Section 33 of the Andhra Pradesh Civil Courts Act, 1972 empowers the High Court to receive suits, appeals and other proceedings, when the District Court or the Court of Subordinate Judge or the Court of District Munsif to which any suit, or appeal or proceeding lies, is adjourned under S. 31 and when no Vacation Judge is appointed under S. 32 (1) of the Act. 2. The power of the High Court under S. 33 of the Act is not only during summer vacation but also during Pongal and Dassara Vacations. 3. The provisions made in S. 32 of the Act are only for summer vacation. To read sub-sec. (5) of S. 32 in S. 33, it has to be suitably changed to fit in S. 33 and in doing so, the Court will not be interpreting the provisions of the Act but be legislating which is impermissible as it is not the Count to rewrite the provisions of the Act, either by supplying the omissions in or by eliminating the words from the statute which is the exclusive domain of the legislature. 4. Any interim order passed by the High Court during vacation on an application to receive and transmit under S. 33 of the Act remains very much the order of the High Court even after vacation. 5. The trial Court is free to pass appropriate orders after hearing both the parties, in conformity with the order passed by the High Court. 6. Against the order of a single Judge of the High Court revision under S. 115, C. P. C. is not maintainable. 7. An appeal lies against ex parte interim injunction granted under O. 39, R. 1, C. P. C. 8. Ex parte interim orders do not decide any rights or obligations of the parties, nay they are passed pending adjudication of rights or obligations in the interlocutory proceedings. Therefore, the orders in question do not decide the rights of the parties. It cannot, therefore, be said that by orders in question, case has been decided.
Final Decision: Both the revision petitions are not maintainable and they are accordingly dismissed with costs.
( 1 ) AN interesting question as to whether a civil revision petition filed under S. 115 of the Code of Civil Procedure against an ex parte interim order passed by the High Court during Dasara vacation on an application under S. 33 of the Andhra Pradesh Civil Courts Act, 1972 (for short `the Act) is maintainable arises in these petitions.
( 2 ) THE revision petitioner in both the petitions is a Government of India undertaking on 25-10-84, it entered into a contract for construction of civil works in the blast furnace zone of Visakhapatnam Steel Plant with the respondent-Company of value of Rupees seventeen crores and odd. In the execution of the said contract, some disputes arose between the parties, which were referred to arbitrator. When the proceedings were pending before the arbitrator, the petitioner terminated the said contract, which was challenged by the respondent in suits filed in the court of District Munsif, Visakhapatnam seeking injunction not to terminate the contract and other incidental reliefs. The respondent also prayed for temporary injunction against the petitioner restraining it from encashing the bank guarantees. The learned Dist. Munsif granted ex parte interim injunction. While the matter stood thus, the respondent filed C. M. P. No. 16290 to 16294 of 1988 in this court during Dasara Vacation of 1988 under Section 33 of the Andhra Pradesh Civil Courts Act, 1972 on 21-10-1988, interim order was granted by the High Court in C. M. P. No. 16292 of 1988 restraining the petitioner from interfering with the removal of the machinery-and material by the respondent. In C. M. P. No. 16293 of 1988 interim injunction was granted restraining the petitioner from awarding the pending works under the said contract pending final measurement of the work and in C. M. P. No. 16294 of 1988 interim injunction was granted restraining the petitioner from encashing the bank guarantees. After the reopening of the Courts, the C. M. Ps. were transmitted to the court of the Principal Subordinate Judge, Visakhapatnam. C. M. P. No. 16290 of 1988 was renumbered as O. P. No. 456 of 1988, C. M. P. 16293 of 1988 was renumbered as I. A. No. 643/88 in O. P. No. 456/ 88 on the file of the Principal Subordinate Judge, Visakhapatnam, C. M. P. 16292/88 was renumbered as I. A. No. 642/88. C. R. P. 3775/88 is directed against the order dated 21-10-1988 passed by the High Court in C. M. P. 16293 of 1988 (I. A. No. 643 of 1988 on the file of Principal Subordinate Judge, Visakhapatnam) and C. R. P. 3776 of 1988 is directed against the ex parte interim injunction order dated 21-10-1988 passed in C. M. P. No. 16293 of 1988 (I. A. 642 of 1988 on the file of Principal Subordinate Judge, Visakhapatnam ). On 212-1988 these Civil Revision Petitions were admitted and interim orders granted by this court on 21-10-1988 were suspended in C. M. P. Nos. 18508 and 18509 of 1988. The respondents filed petitions praying to vacate the interim suspension granted by the High Court on 2-12-1988. Though the CMPs were posted for hearing, both the learned counsel for the parties. represented that the arguments in the CMPs. are the same as in the C. R. Ps. and requested that the CRPs. themselves may be disposed of. Accordingly, the C. R. Ps. are being disposed of.
( 3 ) SRI Subrahmanyam the learned counsel for the respondent raised a preliminary objection with regard to, the maintainability of the CRPs. Under Section 115, C. P. C. the learned counsel challenged the maintainability of the CRPs. on the following grounds : (A) The order passed by the learned single Judge of the High Court on 21-10-1988 in the CMPs. is not an order passed by a court subordinate to the High Court, therefore, power under Section 115, C. P. C. cannot be invoked to revise the said order. (B) An appeal lies against an ex parte interim injunction granted under O. 39, R. 1, C. P. C. so revision under Section 115, C. P. C. is not maintainable. (C) No C. R. P. lies against an ex part
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