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2018 Supreme(All) 2473
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Ritu Raj Awasthi, J.
Motilal Memorial Society Thru. Interim Committee & Anr. – Petitioners
Versus
M/s Agrawal Events And Export, Nirala Nagar, Lucknow & Anr. – Respondents
Misc. Single No. 12485 of 2018
Decided On : 18-05-2018
For the Petitioner: Sudeep Kumar
For the Respondent: Shyam Ji Shukla, Tushar Hirwani
The statutory alternative remedy available to a party is not an absolute bar for approaching and availing extraordinary jurisdiction of the court under Articles 226 & 227 of the Constitution of India.
Headnote:
Writ Petition - Challenging Order - Article 227 of Constitution of India - Order XXXIX Rules 1 & 2 CPC - Whirlpool Corporation vs. Registrar Trade Marks & Ors. 1998 (8) SCC 1 - M/s Triveni Structurals Ltd. VS. M/s Newage Enterprises, Allahabad; AIR 1993 Allahabad 78 - S.K. Gupta Vs. M/s Hyderabad Allwyn Ltd.; AIR 1998 Delhi 324 - Yar Muhammad and another Vs. Lakshmi Das and others; 1959 AIR (ALD) 1 - Lalli Yeswant Singh Vs. Rao Jagdish Singh; AIR 1968 S.C. 620 - Krishna Rama Mahale Vs. Mrs. Shobha Venkat Rao; (1989) 4 SCC 131 - State of U.P. and others Vs. Maharaja Dharamender Prasad Singh & others; (1989) 2 SCC 505 - S.R. Ejaj Vs. T.N. Handloom Weavers' Cooperative Society Ltd.; 2002 (3) SCC 137 - Rame Gowa (Dead) by L.Rs. Vs. M. Varadappa Naidu (Dead) by L.Rs and another
Fact of the Case:
The writ petition was filed under Article 227 of the Constitution of India challenging the order dated 13th April, 2018, passed by Civil Judge, (Senior Division), Lucknow in Regular Suit No.727 of 2018; M/s Agrawal Events and Exports Vs. Moti Lal Memorial Society and others. The respondents raised objections regarding the maintainability of the writ petition based on the absence of authorization and the availability of statutory remedies.
Finding of the Court:
The court found that the statutory remedy is not an absolute bar to availing the extraordinary jurisdiction of the court under Article 227 of the Constitution of India, especially in cases involving violation of fundamental rights, principles of natural justice, or orders passed without jurisdiction. The court directed the lower court to decide the temporary injunction application afresh after giving an opportunity of hearing to the parties.
Issues: The issues included the maintainability of the writ petition, authorization for filing the writ petition, and the availability of statutory remedies.
Ratio Decidendi: The court held that the statutory alternative remedy available to a party is not an absolute bar for approaching and availing extraordinary jurisdiction of the court under Articles 226 & 227 of the Constitution of India. It also emphasized the need for the lower court to decide the temporary injunction application afresh after giving an opportunity of hearing to the parties.
Final Decision: The writ petition was allowed, the impugned order was set aside, and the lower court was directed to consider and decide the temporary injunction application afresh after giving an opportunity of hearing to the parties.
JUDGMENT :
1. Rejoinder affidavit filed today in court is taken on record.
2. Heard Mr. A.K. Tiwari, learned Senior Advocate assisted by Mr. Sudeep Kumar on behalf of the petitioners and Mr. N.K. Seth, learned Senior Advocate assisted by Mr. Tushar Hirwani, learned counsel for the respondents.
3. The instant writ petition has been filed under Article 227 of Constitution of India challenging the order dated 13th April, 2018, passed by Civil Judge, (Senior Division), Lucknow in Regular Suit No.727 of 2018; M/s Agrawal Events and Exports Vs. Moti Lal Memorial Society and others. It is also prayed that a direction be issued to learned Court below to consider and decide the application under Order XXXIX Rules 1 & 2 CPC in a shortest period of time fixed by this Court.
4. A preliminary objection has been raised by Mr. N.K. Seth, learned Senior Advocate appearing on behalf of respondents regarding maintainability of the writ petition on the following grounds:
(1) The petitioner no.2 is not a party before the learned court below in the said suit, as such, writ petition on his behalf is not maintainable,
(2). There is no authorization to file the writ petition on behalf of petitioner no.1 as the vakalatnama has been signed by petitioner no.2 only, as such, writ petition is not maintainable,
(3) The petitioners have a statutory remedy of filing an application for vacation of ex-parte interim order under Order XXXIX Rule 4 CPC. The petitioners have also a remedy of filing misc. appeal under Order XLIII Rule 1 (r) CPC. The statutory remedies have not been exhausted by the petitioner before approaching this Court, as such, writ petition is not maintainable.
5. In support of his objections Mr. N.K. Seth, learned Senior Advocate has relied on the following judgments; (1). Jwala Engineering Pvt. Ltd. & Ors. Vs. M/s Uflex Limited; [2013 (1) JCLR 594 (All)], and (2) A. Venkatasubbiah Naidu Vs. S. Chellappan and others; (2000) 7 SCC 695.
6. Mr. A.K. Tiwari, learned Senior Advocate replying to the objections raised by Mr. N.K. Seth has submitted that so far as the objections no.1 and 2 are concerned, it is to point out that in the supplementary affidavit dated 11.5.2018 the petitioners have annexed the order dated 23.5.2012, wherein the interim committee has authorized the petitioner no.2 to act on behalf of the petitioner no.1/Society for doing all necessary acts for the purpose of cases to be filed or pending for or against the Society in furtherance of bye-law 25.
7. Submission is that the petitioner no.2 is as such authorized on behalf of petitioner no.1 to file the instant writ petition and sign the vakalatnama. The vakalatnama which is on record with writ petition has been signed by petitioner no.2, as such, it shall be treated to be an authorization to file the instant writ petition on behalf of petitioner no.1 and 2.
8. It is further submitted by Mr. Tiwari that so far as the contention regarding statutory remedy available to the petitioners is concerned, it is to submit that the statutory remedy is not an absolute bar to avail the extraordinary jurisdiction of this Court under Article 227 of Constitution of India. The law is well settled right from the case of Whirlpool Corporation. vs. Registrar Trade Marks & Ors. 1998 (8) SCC 1 till today that in case there is any violation of fundamental rights, violation of principles of natural justice or the order has been passed without jurisdiction, it is not necessary to exhaust statutory alternative remedy before approaching this court.
9. Submission is that in the present case the suit filed by the opposite party itself is not maintainable as the rights of the opposite party flow from the contract dated 23.7.2015 and the said contract is determinable as such in view of Order XXXIX Read with Section 38, Section 14 and 41 of Specific Relief Act an injunction is not permissible in case the contract is determinable. The learned court below without considering the said legal issue has passed an ex-parte inju
