An interim ex parte injunction cannot restrain a criminal proceeding under Section 138 of the Negotiable Instruments Act, 1881, as it is not a civil proceeding. The court emphasized the limitations on granting injunctions under the provisions of Order 39, Rule 1, C.P.C. and Section 41 of the Specific Relief Act, 1963.

U. L. BHAT, C.J. :- This appeal is directed against the interim ex parte order of injunction granted in a suit, namely, T.S. 32/91 against defendant (appellant) at the instance of the plaintiff (respondent) by the Assistant District Judge No. 2, Gauhati.

2. Respondent issued four cheques to the appellant in connection with a transaction between them. Appellant presented the same to the Banker but they were returned with the endorsement "refer to the drawer". According to the appellant cheques were represented on two further occasion on instructions of the respondent and were dishonoured. The ap-pellant thereupon issued registered notice dated 7-6-91 to the respondent demanding payment, as contemplated under S. 138 of the Negotiable Instruments Act, 1881 (for short "the Act"). The suit was filed on 5-7-91 praying for two declaratory reliefs, namely, (1) declaration that the appellant is not entitled to receive any amount from the respondent, and (2) declaration that provi-sions of S. 138 of the Act are not applicable in the matter of four cheques. Respondent also filed an interlocutory application being Misc. Case No. 29/91 under O. 39, R. 1, C.P.C. seeking an order of injunction restraining the appellant from instituting any proceeding under S. 138 of the Act in relation to the four cheques. The lower Court passed an interim ex parte order of injunction on 5-7-91. This order is now challenged. We have heard both sides.

2A. An appeal against an order of interim ex parte injunction would lie under O. 43, R. 1(r), C.P.C. but the appellate Court would not ordinarily admit the appeal in the light of Order 41, Rule 11, C.P.C. in the absence of exceptional circumstances. The manner in which the ex parte order has been passed in this case and the contents of the impugned order, which clearly indicate that the lower court was not conversant with the relevant principles of law, has persuaded us to admit the appeal and hear the parties.

3. The impugned order restrains the ap-pellant "from instituting such proceeding un-der Section 138 of the Negotiable Instruments Act, 1881". A proceeding under Section 138 is not a civil proceeding but a criminal proceed-ing in relation to an offence punishable under Section 138. The impugned order would suggest that the lower Court was not aware of this important circumstance.

4. The lower Court before passing the impugned order should have paused for a moment and referred to the provisions of Order 39, Rule 1, C.P.C. and Section 41 of the Specific Relief Act, 1963. If these provisions, in particular the provisions of Section 41, had been adverted to, perhaps the lower Court would not have misled itself into granting the impugned order.

5. There is dispute between the parties regarding the nature of transaction between them, as to the circumstance under and the purpose for which the cheques were issued. That being so it is open to either of the parties to seek remedy in a civil Court and if such remedy is sought, the Civil Court is bound to give a decision. If, however, either of the parties seeks recourse to a competent criminal Court, there is no reason why the criminal court should be restrained from examining the complaint in the light of Section 138 of the Act and in accordance with the provisions of the Code of Criminal Procedure. Section 41 of the Specific Relief Act, 1963 lays down in what cases injunction cannot be granted. Under Clause (a) an injunction cannot be granted to restrain any person from prosecut-ing a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. The Legislature enacted the bar and also the exception. According to Clause (b), an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. Accord-ing to Clause (d) injunction cannot be granted to