An injunction cannot be granted to restrain a person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought, or from instituting or prosecuting any proceeding in a criminal matter.

1. THIS First Miscellaneous Appeal is at the instance of the defendants in a suit for declaration and permanent injunction and is directed against Order No. 2 dated 15th January, 2009 passed by the learned Judge, Eighth bench, City Civil Court at Calcutta, thereby granting an ad interim order of injunction restraining the present appellants from giving effect to the notice dated 7th January, 2009 given by them to the plaintiff till 16th February, 2009 after issuing a notice to show cause why the prayer of the plaintiff for temporary injunction should not be granted.

2. THE defendants, instead of showing the cause, or filing any application under order 39, Rule 4 of the Code of Civil Procedure, have straightway come up with this appeal challenging the grant of ad interim order of injunction. Mr. Chatterjee, the learned advocate appearing on behalf of the appellants, at the very outset, accepted the position of law that his clients without showing any cause to the notice issued by the learned Trial Judge having decided to prefer the present appeal, within the limited scope of this appeal, his clients are not entitled to agitate their own defence against the pleading of the plaintiff or the case made out in the application for temporary injunction. Mr. Chatterjee submits that at this stage, his clients are, for the sake of argument, prepared to accept all the statements contained in the application for injunction and in the plaint to be true and their contention is that even if those allegations are true, the learned Trial Judge erred in law in granting an ad interim order of injunction restraining his clients from giving effect to the notice issued by them.

3. MR. Chatterjee, places before us a copy of the plaint showing that the plaintiff in the suit prayed for declaration that the notice dated January 7, 2009 issued by his clients was null and void and for injunction restraining his clients from giving any effect to the said notice. By referring to the said notice, which is annexed to the application for injunction. Mr. Chatterjee points out that by the said notice, his clients merely alleged that the purported agreement between the parties is a forged document and threatened the plaintiff that his clients would file appropriate civil and criminal proceedings against the plaintiff for creation of such forged document unless the said document was withdrawn. According to Mr. Chatterjee, by virtue of ad interim order of injunction granted by the learned Trial Judge, his clients are restrained from even initiating any civil or criminal proceeding against the plaintiff for the alleged forgery. Mr. Chatterjee contends that an injunction restraining a person from initiating criminal proceeding or even filing civil suit in a Court not subordinate to it is prohibited under Section 41 of the Specific Relief Act. Mr. Chatterjee, therefore, submits that on the face of the allegations contained in the plaint, the learned Trial Judge ought to have held that the prayer for temporary injunction could not be granted as the law did not permit grant of such injunction.

4. MR. Banerjee, the learned senior advocate appearing on behalf of the respondent, on the other hand, has vehemently opposed the aforesaid contention of Mr. Chatterjee and submitted that already his client has resorted to the proceeding of arbitration pursuant to such agreement and the appellants had appeared before Arbitrator and, therefore, the question, whether the said agreement is a forged or not, should be decided before the Arbitrator and not by any suit. In other words, Mr. Banerjee contends that a suit challenging the agreement containing an arbitration clause as void is barred by Section 16 of the Arbitration and conciliation Act. According to Mr. Banerjee, section 41 of the Specific Relief Act is not exhaustive and in a fit and proper case, the court can restrain a party from initiating any civil proceeding even in a Court of coordinate jurisdiction if filing o