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GAUHATI HIGH COURT
G.Mehrotra, S.K.Dutta, JJ.
United Club, Nowgong -Appellant
Versus
Nowgong Football Association of Nowgong and Ors. -Respondent
Civil Revn. No. 37 of 1963
Decided On : 20-06-1963
INTERIM INJUNCTION - APPEAL - ORDER - STAY OF OPERATION - JURISDICTION - CIVIL PROCEDURE CODE, 1908 - ORDER 39, RULES 1, 2, 3, 4 - ORDER 41, RULES 1, 2, 3, 5 - ORDER 43, RULE 1(R) - SECTION 2(14) - SECTION 115 - SECTION 151 - An order passed by a trial court granting an ex parte interim injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code, 1908, is an order as defined under Section 2(14) of the Code and is appealable under Order 43, Rule 1(r). The appellate court has jurisdiction to pass an interim order of stay of operation of the injunction till disposal of the appeal under Order 41, Rule 5(1) of the Code, without applying the conditions laid down in Order 41, Rule 5(3).
Fact of the Case:
The plaintiff, a football club, filed a suit against the defendant, the Nowgong Football Association, and its office-bearers, challenging the demotion of the plaintiff club from the Senior Division to the Second Division of the league. Along with the plaint, the plaintiff filed an application for an interim injunction restraining the defendants from holding the league matches and the defendant clubs from participating in those matches. The trial court granted an ex parte interim injunction on the same day. The defendant association filed an appeal against the injunction order and also filed an application for stay of the operation of the injunction. The appellate court stayed the operation of the injunction till disposal of the appeal.
Finding of the Court:
The court held that the order granting the interim injunction was an order as defined under Section 2(14) of the Civil Procedure Code, 1908, and was appealable under Order 43, Rule 1(r) of the Code. The court further held that the appellate court had jurisdiction to pass an interim order of stay of operation of the injunction till disposal of the appeal under Order 41, Rule 5(1) of the Code, without applying the conditions laid down in Order 41, Rule 5(3).
Issues: 1. Whether the order granting the interim injunction was an order as defined under Section 2(14) of the Civil Procedure Code, 1908, and was appealable under Order 43, Rule 1(r) of the Code? 2. Whether the appellate court had jurisdiction to pass an interim order of stay of operation of the injunction till disposal of the appeal under Order 41, Rule 5(1) of the Code, without applying the conditions laid down in Order 41, Rule 5(3)?
Ratio Decidendi: 1. The court held that the order granting the interim injunction was an order as defined under Section 2(14) of the Civil Procedure Code, 1908, because it was a formal expression of a decision of a civil court which was not a decree. The court further held that the order was appealable under Order 43, Rule 1(r) of the Code, which provides for an appeal against an order passed under Order 39, Rules 1, 2, and 4 of the Code. 2. The court held that the appellate court had jurisdiction to pass an interim order of stay of operation of the injunction till disposal of the appeal under Order 41, Rule 5(1) of the Code, without applying the conditions laid down in Order 41, Rule 5(3). The court reasoned that Order 41, Rule 5(3) applies to the execution of a decree and not to the proceeding arising out of an order. The court further held that the power contained under Order 41, Rule 5 may not be exhaustive in itself and that the appellate court had the discretion to pass an interim order of stay in the circumstances of the case.
Final Decision: The court rejected the plaintiff's petition challenging the order of the appellate court staying the operation of the interim injunction.
This is a petition under Section 115, Civil Procedure Code by the plaintiff. The facts necessary for the disposal of the case are that the petitioner is a football club under the Nowgong Football Association which has been impleaded as opposite party No. 1 to this petition. The opposite party No. 2 is Sri Nurul Amin who is the Honorary Secretary of the opposite party No. i, and opposite parties Nos. 3 and 4 are other affiliated clubs of the Nowgong Football Association. The case of the plaintiff is that the opposite party No. 1 conducts football leagues competition yearly amongst its affiliated clubs and for its convenience to carry on the league matches the opposite party No. 1 has divided its affiliated clubs into two" divisions, namely the First Division (Senior League) and Second Division respectively. The league matches for both these divisions for the year 1963 were to commence from the 3rd May, 1963. According to the plaintiff petitioner the opposite party No. 1 is governed" "By certain rules and the opposite party No. 2 representing the opposite party No. 1 served a notice on the petitioner club that the petitioner should participate in the Second Division League matches under the opposite party No. 1.
When this notice was issued to the petitioner, the petitioner took it as if the petitioner has been demoted from the senior position to a junior position. That being so, when the league matches were going to start the petitioner filed a suit before the Munsiff for a declaration that the petitioner has been wrongly demoted to the second position and thus the notice was ultra vires. The suit in effect was for a declaration of the right of the petitioner to participate in the League matches of the Senior Division and for an injunction restraining the apposite parties not to give effect to that notice and not to hold the matches. After filing the suit the petitioner along with the plaint made an application purporting to be one under Order 39, Rule 1, Civil Procedure Code for interim injunction restraining the opposite parties from holding the League matches and restraining the opposite parties Nos. 3 and 4 from participating in those matches.
(2) The suit was filed on the 3rd May 1963. The Munsiff on that very day after hearing the counsel for the plaintiff passed the following order:
"Heard the learned lawyer for the plaintiff. Prayer for temporary injunction is allowed as prayed for. Issue ad interim injunction fixing the above date (37-5-63). Issue a notice to show cause as to why the ad interim injunction should not be made absolute till disposal of the suit." It appears that opposite party No. 2 took notice of this injunction and filed objection, and prayed for vacating the interim injunction issued by the Munsiff on the 4th May 1963. The objections filed by opposite party No. 2 were put up for hearing by the Munsiff on the 7th May 1963. The Munsiff heard both the parties elaborately on the 7th May 1963 and passed an order dealing with most of the points raised by the parties. But the Munsifi said that the defendant has raised the point that the plaintiff is not entitled to play in this year game as the plaintiff does not continue to be a member of the Association. This point required investigation and thus he gave opportunity to the parties to adduce evidence on this prayer and postponed the hearing of the objections filed by opposite party No. 2 and final decision to a later date. The opposite party No. 2, however, without waiting, for the final decision of the Munsiff on the objections filed by him, filed an appeal against the order of the Munsiff granting interim injunction on the 3rd May 1963 before the Subordinate Judge. Along with the appeal the opposite party No. 2 also prayed for the stay of the operation of the order of interim injunction. The Subordinate Judge entertained the appeal and passed an order staying the operation of the order of interim injunction till the disposal of the appeal. It is
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