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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
TASHI RABSTAN, J.
Bakshi Faiz Ahmad - Appellant
Versus
Bakshi Farooq Ahmad and Ors. - Respondents
CIMA No. 08 of 2018 and MP No. 01 of 2018
Decided On : 18-04-2018
CIVIL PROCEDURE CODE - ORDER II RULE 2 - ORDER VII RULE 11 - COMPANIES ACT, 2013 - SECTION 241, 430 - INJUNCTION - JURISDICTION - TITLE DISPUTE - SUMMARY JURISDICTION - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - STATUS QUO - APPEAL AGAINST DISCRETIONARY ORDER - INTERFERENCE. Suit for declaration, partition, possession with mandatory and permanent injunction against appellant and respondent No. 2 before the court below. An application for grant of ad interim relief, anent the suit, filed by respondent No. 1, has been disposed of by court below vide order dated 14th March 2018. It is this order of which appellant is aggrieved, forcing him to thump at portals of this Court with Appeal on hand. Held - 1. Provisions of Order II Rule 2 CPC have no applicability to the facts and circumstances of the present case. Order II Rule 2 CPC, is based on principle that no one should be vexed twice for the one and same cause. The rule does not preclude a second suit based on a distinct and separate cause of action. 2. Tribunal, or Board as the case may be, can decide only rectification of register concerning shares and connected incidental issues and matters therewith and not disputed questions of title. In the present case, a bare perusal of averments in the plaint as well as the relief sought for by respondent No. 1 shows that to decide the issue raised by him vis-à-vis share(s)/title of the property in question is a disputed question of title, which can be decided by the Civil Court and the Tribunal/Company Law Board has no power to adjudicate the said issue. 3. Seriously disputed question of title, the Supreme Court has held, cannot be decided by the Company Law Board inasmuch as the proceeding before Tribunal constituted under Companies Act 2013 is summary in nature and seriously disputed questions cannot be decided by Tribunal. Even if the proceeding is initiated in Tribunal, the seriously disputed questions have to be relegated to the Civil Court. 4. Granting or refusing temporary injunction rests on the sound exercise of discretion of the Courts, and such exercise of discretion cannot be lightly interfered with by the appellate Court unless it is shown that such exercise of discretion is unreasonable or capricious. The area of interference of discretionary orders passed by the Courts below in exercise of the discretion vested in them, by the appellate Court in appeal against such orders is, although, not so much restricted as in the case of a revision still it is not as wide as the normal and ordinary appellate powers of an appellate Court in dealing the appeals, the power is indeed very much restricted in its scope. 5. Discretionary orders cannot be interfered with unless the orders are bad in law. Appellate Court will not reassess the material and seek to reach a conclusion different from one reached by the court below while passing interlocutory injunctions. 6. Interference, at this stage, will disturb the whole Lis.
Fact of the Case:
Suit for declaration, partition, possession with mandatory and permanent injunction against appellant and respondent No. 2 before the court below. An application for grant of ad interim relief, anent the suit, filed by respondent No. 1, has been disposed of by court below vide order dated 14th March 2018. It is this order of which appellant is aggrieved, forcing him to thump at portals of this Court with Appeal on hand.
Finding of the Court:
1. Provisions of Order II Rule 2 CPC have no applicability to the facts and circumstances of the present case. 2. Tribunal, or Board as the case may be, can decide only rectification of register concerning shares and connected incidental issues and matters therewith and not disputed questions of title. 3. Seriously disputed question of title, the Supreme Court has held, cannot be decided by the Company Law Board inasmuch as the proceeding before Tribunal constituted under Companies Act 2013 is summary in nature and seriously disputed questions cannot be decided by Tribunal. 4. Granting or refusing temporary injunction rests on the sound exercise of discretion of the Courts, and such exercise of discretion cannot be lightly interfered with by the appellate Court unless it is shown that such exercise of discretion is unreasonable or capricious. 5. Discretionary orders cannot be interfered with unless the orders are bad in law. Appellate Court will not reassess the material and seek to reach a conclusion different from one reached by the court below while passing interlocutory injunctions. 6. Interference, at this stage, will disturb the whole Lis.
Issues: 1. Whether the provisions of Order II Rule 2 CPC are applicable to the facts and circumstances of the present case? 2. Whether the Tribunal or Board has the power to decide disputed questions of title? 3. Whether the seriously disputed question of title can be decided by the Company Law Board? 4. Whether the granting or refusing of temporary injunction rests on the sound exercise of discretion of the Courts? 5. Whether the discretionary orders can be interfered with unless the orders are bad in law? 6. Whether the Appellate Court will reassess the material and seek to reach a conclusion different from one reached by the court below while passing interlocutory injunctions?
Ratio Decidendi: 1. Order II Rule 2 CPC is based on the principle that no one should be vexed twice for the one and the same cause. The rule does not preclude a second suit based on a distinct and separate cause of action. 2. Tribunal, or Board as the case may be, can decide only rectification of register concerning shares and connected incidental issues and matters therewith and not disputed questions of title. 3. Seriously disputed question of title cannot be decided by the Company Law Board inasmuch as the proceeding before Tribunal constituted under Companies Act 2013 is summary in nature and seriously disputed questions cannot be decided by Tribunal. 4. Granting or refusing temporary injunction rests on the sound exercise of discretion of the Courts, and such exercise of discretion cannot be lightly interfered with by the appellate Court unless it is shown that such exercise of discretion is unreasonable or capricious. 5. Discretionary orders cannot be interfered with unless the orders are bad in law. Appellate Court will not reassess the material and seek to reach a conclusion different from one reached by the court below while passing interlocutory injunctions. 6. Interference, at this stage, will disturb the whole Lis.
Final Decision: Appeal dismissed.
ORDER :
Tashi Rabstan, J.
1. Instant Civil Miscellaneous Appeal has been preferred under and in terms of Section 104 read with Order XLIII of the Code of Civil Procedure (CPC) against Order 14th March 2018, passed by learned 3rd Additional District Judge, Srinagar (for brevity "court below") on an application for grant of ad interim relief, filed in a Civil Suit titled Bakshi Farooq Ahmad v. Bakshi Faiz Ahmad and another, and for setting aside the same, on the grounds assigned therein.
2. The case set up by appellant is that respondent No. 1 instituted a Suit for declaration, partition, possession with mandatory and permanent injunction against appellant and respondent No. 2 before the court below. An application for grant of ad interim relief, anent the suit, filed by respondent No. 1, has been disposed of by court below vide order dated 14th March 2018. It is this order of which appellant is aggrieved, forcing him to thump at portals of this Court with Appeal on hand.
3. I have heard learned counsel for parties at length and considered the matter.
4. Learned counsel appearing for appellant, while dilating his first limb of arguments, strenuously avers that impugned order is bad in eye of law inasmuch as Suit of plaintiff/respondent No. 1 was liable to be rejected under Order VII Rule 11 CPC, more particularly when a civil court has no jurisdiction to entertain any suit or proceedings vis-à-vis any matter that is to be determined by the Tribunal or Appellate Tribunal owing to mandate of law enshrined in Sections 241 and 430 of Indian Companies Act, 2013. Learned counsel for appellant's next limb of argument is that court below has failed to appreciate that it has no jurisdiction to pass impugned order, given the fact that a Suit for grant of Permanent and Mandatory Injunction qua same property was already pending adjudication before learned 1st Additional Munsiff, Srinagar, in which an order of status quo passed, was in force. His subsequent contention is that appellant had specifically brought to the notice of court below that suit properties were partitioned amongst parties during life time and under guidance of their father - Late Bakshi Abdul Hamid in the year 1990 and therefore, Suit was not maintainable and that while respondents 1 & 2 had been assigned their shares by predecessor-in-interest, i.e. father of parties, and their share is in the two separate buildings situated on higher level in the same premises and constructed in the year 1990; appellant was assigned his share in ancestral house constructed in the year 1930, which had already suffered major damage during devastating floods of 1950 followed by floods of September 2014. It was in this context that appellant had resisted application for grant of ad interim relief by claiming old building assigned to his share, requiring necessary repairs and renovations. Court below, according to learned counsel, has not taken into consideration the principle of Order II Rule 2 CPC. To bolster his submissions, learned counsel for appellant has placed reliance on judgments dated 19th July 2017 passed by the Madras High Court in C.R.P.(PD)(MD) No. 775 of 2017 titled Selvarathnam v. M/s. Standard Fire Words Pvt. Ltd.; K.P.M. Aboobucker v. K. Kunhamoo and others, 1958 AIR (Mad) 297; and Anil Gupta and others v. J.K. Gupta and others, 2002 Company Cases Vol 110 P&H 610.
5. Per contra, learned counsel for respondent No. 1 states that the contention raised by appellant as regards bar of Civil Courts, is unfounded for the reason that Company Law Tribunal cannot deal with question of fact, which can only be dealt with by a Civil Court. He also insists that the company has not been sued as a legal person nor any defendant has been sued in the capacity of director/office bearer or the company, so the provisions of Companies Act, 2013, will not come into play. Qua Section 430 of the Companies Act, 2013, he asserts that it bars Civil Court to grant injunction in respect of any action taken or
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