2005 Supreme(Gau) 843

IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
Shri Yogesh Shah and Ors. - Appellants
Vs.
Smt. Dharmeswari Devi alias Dharmeswari Devi - Respondent
W.P. (C) 8481/2004
Decided On: 20.12.2005

Headnote:

CIVIL PROCEDURE CODE - SECTION 151 - INHERENT POWERS OF THE COURT - GRANT OF TEMPORARY INJUNCTION - APPLICATION FOR READMISSION OF APPEAL - POWER OF THE COURT TO GRANT TEMPORARY INJUNCTION - CIRCUMSTANCES IN WHICH TEMPORARY INJUNCTION CAN BE GRANTED - APPLICABILITY OF ORDER XXXIX, RULES 1 AND 2 - INTERPRETATION OF SECTION 141 - MEANING OF 'PROCEEDING' - DISTINCTION BETWEEN ORIGINAL PROCEEDINGS AND PROCEEDINGS DERIVATIVE IN NATURE - APPLICABILITY OF SECTION 94(C) TO PROCEEDINGS UNDER SECTION 141 - SCOPE OF INHERENT POWERS OF THE COURT UNDER SECTION 151 - LIMITS OF JURISDICTION OF THE COURT IN GRANTING TEMPORARY INJUNCTION - GUIDING PRINCIPLES.

Fact of the Case:

The plaintiff-petitioners instituted a title suit seeking declaration of their rights, title, and interest over the suit property and recovery of possession thereof by evicting the defendant-respondent from the suit property. The suit was decreed in favor of the plaintiffs-petitioners. The defendant-respondent challenged the decree by way of an appeal, which was dismissed for default. The defendant-respondent filed a petition for readmission of the appeal, pending which, the decree was executed, and the plaintiffs-petitioners took possession of the suit property. The defendant-respondent filed a petition under Section 151 read with Section 94 of the Civil Procedure Code (CPC) praying for an order of injunction restraining the decree-holders from raising any structure on the suit land and also restraining them from alienating the suit land in favor of anyone till the disposal of the appeal. The learned Appellate Court granted the injunction, which was challenged by the plaintiffs-petitioners by way of a writ petition.

Finding of the Court:

1. The provisions for granting temporary injunctions are embodied under Order XXXIX Rules 1 and 2 of the CPC, and if the defendant-respondent was not entitled to an order of injunction under Order XXXIX Rules 1 and 2, recourse could not have been taken to Section 151 of the CPC for the purpose of granting temporary injunction. 2. Section 141 of the CPC makes applicable to a proceeding, which can be described as a proceeding under Section 141, only the procedural part of the Code and not that part, which relates to jurisdiction of the Courts under the Code. 3. Section 94(c) of the CPC vests the civil Courts with the power to grant temporary injunction and also to punish for disobedience of the order of temporary injunction. However, under what circumstances and in what manner, this power can be exercised is actually given in Order XXXIX, Rules 1 and 2. 4. Since Section 94(c) is not applicable to a proceeding within the meaning of Section 141 and since for this reason, even in the circumstances, which satisfy the conditions prescribed under Order XXXIX, Rules 1 and 2, the Court, which may be in seisin of an application for temporary injunction, cannot grant temporary injunction, it can be held that the Court is powerless to grant temporary injunction in such circumstances. 5. Every Court of civil jurisdiction has inherent power to grant temporary injunction in order to prevent the ends of justice from being defeated. 6. The inherent power of the Court under Section 151 is in addition to and complimentary to the powers expressly conferred under CPC, but that power will not be exercised in conflict with any of the powers expressly or by implication conferred by other provisions of CPC if there is an express provision covering a particular topic, then Section 151, CPC cannot be applied.

Issues: 1. Whether the Court has the power to grant a temporary injunction pending an application for readmission of an appeal dismissed for default? 2. Whether the provisions of Order XXXIX, Rules 1 and 2 of the CPC are applicable to an application for readmission of an appeal? 3. Whether Section 141 of the CPC makes the entire CPC applicable to proceedings under Section 141? 4. Whether Section 94(c) of the CPC is applicable to proceedings under Section 141? 5. Whether the Court has inherent powers under Section 151 of the CPC to grant temporary injunction in circumstances not covered by Order XXXIX, Rules 1 and 2?

Ratio Decidendi: 1. The provisions of Order XXXIX, Rules 1 and 2 of the CPC cannot be applied to an application for readmission of an appeal, as an application for readmission of appeal is not an extension of the suit or the appeal, but an independent proceeding. 2. Section 141 of the CPC makes applicable to a proceeding, which can be described as a proceeding under Section 141, only the procedural part of the Code and not that part, which relates to jurisdiction of the Courts under the Code. 3. Section 94(c) of the CPC is not applicable to a proceeding within the meaning of Section 141, and therefore, the Court cannot grant temporary injunction under Section 94(c) in such a proceeding. 4. Every Court of civil jurisdiction has inherent power under Section 151 of the CPC to grant temporary injunction in order to prevent the ends of justice from being defeated.

Final Decision: The impugned order granting temporary injunction was modified to the extent that the plaintiffs-petitioners were restrained from raising any construction on the suit property or changing the features thereof or alienating the same and/or part with the possession thereof until the disposal of the application for readmission of the appeal. The Court clarified that if the appeal was readmitted, the Court would be at liberty to pass necessary orders for grant of temporary injunction if appropriate application was made in this regard and the circumstances for granting of such injunction were still available.