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GAUHATI HIGH COURT
S.BARMAN ROY, J.
Jyotish Chandra Borbora -Appellant
Versus
Bura-Gohain Tea Co.Pvt.Ltd., and others -Respondent
Civil Revn. No. 420 of 4992
Decided On : 24-11-1992
COMPANY LAW - INJUNCTION - ORDER - EX PARTE AD INTERIM INJUNCTION - ABSOLUTE TERMS - ISSUANCE OF SHOW CAUSE NOTICE - MAINTAINABILITY OF REVISION PETITION - JURISDICTION OF COURT - ART. 227 OF THE CONSTITUTION OF INDIA - APPEALABLE ORDER - ALTERNATIVE REMEDY.
Fact of the Case:
Petitioner, the Joint Managing Director of Buragohain Tea Estate (P) Ltd., challenged an ex parte ad interim injunction order granted by the Munsif restraining him and other defendants from giving effect to impugned resolutions adopted in an extraordinary general meeting of the company's shareholders. The respondent, a shareholder, had filed a suit seeking a declaration that the resolutions were illegal and void and a permanent injunction restraining the defendants from giving effect to them.
Finding of the Court:
The court held that the revision petition was not maintainable under Section 115 read with Section 151 of the Code of Civil Procedure (CPC) and Article 226 of the Constitution of India, as the impugned order was appealable under Order 43, Rule 1 of the CPC. The court also declined to convert the petition into one under Article 227 of the Constitution suo motu, relying on the Supreme Court decision in Vishesh Kumar v. Shanti Prasad.
Issues: 1. Whether the revision petition was maintainable under Section 115 read with Section 151 of the CPC and Article 226 of the Constitution of India? 2. Whether the court could suo motu convert the petition into one under Article 227 of the Constitution?
Ratio Decidendi: 1. The court held that the revision petition was not maintainable under Section 115 read with Section 151 of the CPC and Article 226 of the Constitution of India because the impugned order was appealable under Order 43, Rule 1 of the CPC. The court reasoned that an appeal provided a more comprehensive and efficacious remedy than an application under Article 227 of the Constitution. 2. The court declined to convert the petition into one under Article 227 of the Constitution suo motu, relying on the Supreme Court decision in Vishesh Kumar v. Shanti Prasad, which held that a revision petition under Section 115 of the CPC is a separate and distinct proceeding from a petition under Article 227 of the Constitution and one cannot be identified with the other.
Final Decision: The court dismissed the revision petition as not maintainable. However, it directed the Munsif to dispose of the injunction petition within three weeks from the date of receipt of the order and to frame a preliminary issue on the maintainability of the suit filed by the respondent.
By this revision petition the petitioner has challenged the ex parte Order of ad interim injunction dated 26-8-92 passed by Munsif No. 1, Golaghat in Misc. (J) Case No. 14/92 arising out of Title Suit No. 24/92.
2. The petitioner is the Joint Managing Director of Buragohain Tea Estate (P) Ltd., Golaghat. The aforesaid Buragohain Tea Estate (P) Ltd. is a registered company incorporated in 1927 for cultivation of tee and other activities as detailed in the Memorandum of the Association of the company. The respondent is a shareholder of the said company.
3. The case of the petitioner is that the respondent filed Title Suit No. 24/92 in the Court of learned Munsif No. 1, Golaght for a declaration that the impugned resolutions Nos. l, 2 and 3 adopted in the Extraordinary General Meeting of the said company held on 17-8-92 as illegal, void and inoperative in law and for a further declaration that the extraordinary general meeting of the company dated 17-8-92 was illegally held in violation of the Article of Association of the said company and for permanent injunction restraining all the defendants from giving effect to the aforesaid impugned resolutions Nos. 1, 2 and 3 for the best interest of the company. The respondent also filed a special petition in the Court of learned Munsif under O. 39, Rr. 1 and 2, C.P.C. for granting temporary injunction restraining the present petitioner (sic) from giving effect to the aforesaid resolutions Nos. 1, 2 and 3 of the extraordinary general meeting of the shareholders of the company till disposal of the suit. In the aforesaid suit and the petition for injunction, the company and the present petitioner along with some others were impleaded as defendant/opposite parties.
4. By the impugned order dated 26-8-92, the learned Munsif granted ex parte ad interim injunction against the present petitioner and other defendants restraining them from giving effect to the impugned resolutions adopted in the extraordinary general meeting of the share-holders of the company held on 17-8-92, "till disposal of the suit." By the same order, the learned Munsif also directed to issue notice upon the present petitioner and other defendants in the said suit to show cause as to why ad interim injunction order shall not be confirmed till disposal of the suit and accordingly fixed 21-9-92 for hearing on the injunction matter. In response to the said show cause notice, the petitioner and other defendants/opposite parties in the said suit filed their objection, opposing, the prayer for injunction.
5. Mr. J. N. Sarma, learned counsel for the petitioner submits that the order of injunction has already been made absolute without hearing the petitioner and other defendants and as such issuance of show cause notice as to why order of ad interim injunction should not be confirmed till disposal of the suit is meaningless. Relevant portion of the injunction order is quoted below :-
"An ex parte ad interim injunction is hereby granted against the defendants restraining them from giving effect to the impugned resolutions adopted at the Extraordinary General Meting of the shareholders held on 17-8-92. The defendants Nos. 1 to 6 have hereby restrained from giving effect to the said resolutions till the disposal of the main suit.
Issue notice upon them asking them to show cause to why the ad interim injunction order Passed by shall not be confirmed till the disposal of the main suit.
Fixed on 21-9-92 hearing on injunction matter."
6. Mr. Sarma, learned counsel for the petitioner submits that as the ex parte ad-interim injunction was based in absolute terms and hence question of showing cause against the aforesaid show-cause notice is absolutely meaningless and therefore, the petitioner has absolutely no alternative, but to file the present petition.
7. Mr. D. N. Choudhury, learned counsel for the respondents raised a preliminary counsel for the respondents raised a preliminary objection against maintainability of this petition and
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