R.H. Baddam vs Dhunput Sing Bahadur and others

This is an appeal from an order made by Colonel Garbett, Deputy Commissioner of Hazaribagh, on the 1st of October 1888, by which order the Defendant Mr. R. H. Baddam, was restrained from carrying on the manufacture of hogs'' lard or any other trade offensive to the religious feelings of the Jain Sitambari Society "until the hearing of this case or until the further order of this Court." The question for decision before us on this appeal is quite simple and free from either difficulty or complication; but we think it desirable, having regard to the nature of the case, to dwell upon the circumstances of it at greater length than any legal importance that the case itself has, would perhaps warrant.

The suit was instituted by five gentlemen professing to represent that division of the Jain community, which, as we understand it, is called the Jain Sitambari Society; and the Plaintiffs complain that they being the owners of the sacred lands described as the Pareshnath Hill, and the plain below, the first Defendant has wrongfully and improperly granted to the second Defendant, Mr. Baddam, a lease of two thousand acres or English bighas, out of the lands of the said hill and the plain below, which, under the circumstances stated in the plaint, they say the first Defendant had no right to do; and they claim ejectment against the second Defendant from the lands occupied by him, and possession of the same by them, the Plaintiffs. That portion of the claim, however, does not relate to the subject-matter of this appeal. They also claim in the plaint the injunction which they have obtained pending the suit, upon the ground that the second Defendant has established a manufactory of hogs'' lard in those 2,000 acres, not only thereby trespassing on the lands belonging to the sect, but desecrating the place of worship, devotion and pilgrimage, creating a nuisance, and wounding the religious feelings of the sect. Now, in no portion of the plaint, and in no portion of the surprising affidavit upon which the order for an injunction was granted, are any acts of the Defendant specified, such that it could be pronounced of them that in themselves they are acts of the character of, or constituting a nuisance. In no part of the plaint is it stated or explained in what way the Defendant''s conduct in carrying on this manufactory wounds, or is calculated to wound the religious feelings of the Jains or interfere unlawfully with any right enjoyed by them. So that, neither by a description of the character of acts alleged on Defendant''s part, nor by any special allegation making out that with respect to the Jains the Defendant''s conduct has been of an actionable character, is there the slightest statement from which anything in the nature of cause of action can be extracted. We are far from desiring to have it implied from what we have just said that the acts of the Defendant in carrying on their manufactory could, under the circumstances, be of such a character as to give rise to a cause of action merely because they wounded (supposing that in fact they did wound) the religious feelings of the Jain sect. On the other hand, we, by no means, desire to suggest that conduct, actually and improperly interfering with the public worship of a community of Her Majesty''s subjects, might not under certain circumstances give rise to a cause of action. It is enough to say, that in the proceedings before us there is no trace of such an assertion of right enjoyed or of wrong done, as in our opinion to justify the granting of an injunction.

We must take leave to say this that the power of granting an injunction is one which has been perhaps a little lavishly bestowed upon the Courts in the mofussil in this country. It is a tremendous power, and one which the superior Courts most carefully guard themselves from exercising hastily or without solid grounds. And this is not the first occasion by any means in which the exercise of the power of granting an injunction, which has been conferred upon the smaller Courts in the mofussil, has led to results by no means satisfactory. Here a business, for aught we know, a valuable business, has been, since the first of October, suddenly and peremptorily stopped until this the 12th of February, and stopped, as we must now pronounce it, in this Court, to have been without the slightest legal foundation laid before the Court.

The second ground upon which we make this order is this, that whatever the case as to the existence of a legal right in the Plaintiffs may have been, supposing that the statements in the plaint had been such as to show, if uncontradicted, that the Plaintiffs were entitled to an injunction, the injunction ought not to have issued in the absence of the Defendant without strong and grave reasons. The observations of Sir Lawrence Peel in the case of Freeman v. McArther 2 Taylor and Bell''s Reports, p. 25, are applicable to this case : --" Such an injunction on the application of one party, and without previously giving to the person to be affected by it, the opportunity of contesting the propriety of its issuing, is a deviation from the ordinary course of justice, which nothing, but the existence of some imminent danger to property if it be not so granted, can justify. A case, therefore, of irremediable mischief impending must be made out. By this is certainly not meant necessary and inevitable destruction, but great and serious danger not capable of being averted probably, if delay be enter posed." There was nothing of that sort here. We are not at liberty perhaps to refer to what has been before us, and to what will shortly again be before us, namely, the correspondence relating to the Rule to be heard presently; and we must avoid the irregularity of referring in detail to that correspondence, but it is clear and has been admitted before us in this appeal, that for months before this injunction was applied for or granted, the parties connected with the Jain community were fully aware of what the Defendant was doing or was about to do.

We must express our regret that the officer who granted the injunction had not before him when the application to dissolve the injunction was made, the legal considerations which ought to have then guided him. We should be very sorry in expressing our disapproval of the course taken by him, to" say anything whatever in disparagement of that officer. He plainly does not understand the character of the jurisdiction he was exercising, and he is not to be blamed for that. A jurisdiction, originally, and perhaps properly, belonging only to superior Courts possessed of legal knowledge and experience, is imposed on Courts in the mofussil which sometimes share with the victims of its exercise, the inconvenience of its being so imposed on them. It would be unfair to blame such tribunals much, if they do sometimes go astray in the use of it. But we must examine the course taken by the Deputy Commissioner. When applied to on the ground that under sec. 494 of the Code of Civil Procedure, notice should have been given, he says:--" I fail to see, nor has it been made clear to me, how the failure to serve petitioner with the required notice under sec. 494 of the CPC can have had anything to do in causing loss. The injunction was issued without notice as the matter was considered urgent in connection with offending religious prejudices and causing noting." In truth the Deputy Commissioner, we do not say unnaturally but very erroneously, applied the full powers of an injunction for purposes relating rather to his executive than to his judicial functions, not, perhaps, quite correctly, even had he been acting in his executive capacity; because there is not one word in the proceedings from first to last which could properly had been, whether in his capacity of Colonel Garbett, Deputy Commissioner or in his capacity of Subordinate Judge of this district, to come to the conclusion that there was any danger of a not. Not one word is there in the proceedings from first to last indicative of such danger, save what is contained in the judgment which we have just read.

We have only further to point out the extreme stringency of the terms of sec. 494, which, by enactment, lays down the rule always followed before its enactment by Courts, possessing (and understanding) this sort of jurisdiction. "The Court shall, in all cases, except where it appears that the subject of granting the injunction would be defeated by the delay before granting an injunction, direct notice of the application for the same to be given to the opposite party." Ordinary justice requires it, save in the exceptional case referred to by the section.

As regards sec. 497, we should, under the circumstances, have entertained (we do not say what order we should have made on it) an application, had any been made to us, under this section, under which damages against the persons who have obtained, in the words of the section, an injunction on insufficient grounds may be had. However, the Defendant does not wish to avail himself of this section. We refer to it because it is desirable to publicly point out the serious character of this procedure; but we make no order for an inquiry into damages. We allow the appeal with costs, hearing fee twenty gold mohurs.