Savitri Devi Jaiswal and Others vs Girija Shankar Jaiswal and Others

R.N. Prasad, J.—The appeal has been filed against the order dated 14.12.1992 passed by Sri Narendra Mishra, Subordinate Judge 1st, Patna in T.S. No. 577/91 restraining the Plaintiffs of R.S. No. 193/92 pending before the Subordinate Judge, Ranchi from proceeding with the suit till the disposal of T.S. No. 577/91 pending before him at Patna.

The resume of the relevant facts are that Smt. Saroini Devi Jaiswal wife of Girija Shankar Jaiswal filed the above mentioned T.S. No. 577/91 in the court of 1st Subordinate Judge, Patna against M/s. Ram Narayan and Sons through her husband Girija Shankar Jaiswal, her sons and Kripa Shankar Jaiswal, Deo Narayan Jaiswal and Sangram Singh Jaiswal for declaration that Defendants have no right to interfere with the business of wholesale supply of country liquor in Sachet from the Warehouse at Sherghati, Sadar Gaya, Jehanabad, Aurangabad, Daud Nagar, Daltonganj, Garhwa, Hussainabad and Chandwa and also for restraining the Defendants by an order of ad interim injunction from interfer ing with the business and from entering into premises of the instant business or creating any mischief in the instant business. The Plaintiff filed a petition under Order 39 Rules 1 and 2 of the CPC and temporary injunction was granted by the court. Defendant Nos. 2 to 4 filed a Misc. Appeal against the said, order before the High Court. The said Misc. appeal was dismissed with direction to appoint Girija Shankar Jaiswal as receiver. Girija Shankar Jaiswal was, accordingly, appointed receiver thereafter.

The Appellants who are wives of Defendant Nos. 2 to 4 filed T.S. No. 193/92 in the court of Subordinate Judge, Ranchi against their husbands, Defendant Nos. 2 to 4, Plaintiff her husband Girija Shankar Jaiswal, M/s. Ram Narayan and Sons, Defendant No. 1 and others for declaration that memorandum of partition dated 1.4.1988 with respect to the suit properties alleged to have been executed between the Plaintiff and Defendant Nos. 1 to 5 is forged, fabricated and manufactured document and is not binding upon them and also for permanent injunction against the Defendants restraining them from putting forward any claim with respect to the property in suit on the strength of alleged memorandum of partition dated 1.4.1988 and also for restraining the Defendants from alienating the suit property.

Girija Shankar Jaiswal, the receiver, thereafter filed a petition in T.S. No. 577/91 for stay of proceeding of T.S. No. 193/92 pending in the court of Subordinate Judge, Ranchi and to restrain the Plaintiffs of the said suit from proceeding with the said T.S. No. 193/92 till the disposal of the present suit. The court after hearing learned Counsel for the receiver restrained the Plaintiff of T.S. No. 193/92 pending before the Subordinate Judge, Ranchi from proceeding with the said suit till the disposal of T.S. No. 577/91 or till the Petitioner (Girija Shankar Jaiswal) is occupying the office of receiver of the property in suit, which ever challenged in this appeal.

Learned Counsel for the Appellants contended that the order impugned is bad in law in view of Section 41(b) of the Specific Relief Act, 1963 as the court has no jurisdiction to restrain the Appellants from prosecuting the suit pending before the Subordinate Judge, Ranchi which was not subordinate to the court granting injunction. On the other hand, learned Counsel for the Respondents contended that since temporary injunction has been granted the court has jurisdiction u/s 37(1) of the Specific Relief Act and such case is governed by Order 39 Rules 1 and 2 of the Code of Civil Procedure.

To resolve the issue involved in the case, it is necessary to deal with the relevant provisions of the Specific Relief '' Act. Section 37 of the Specific Relief Act deals with temporary and perpetual injunction. Sub-section (1) of the said section says that temporary injunctions are such as are to continue until a specified time, or until further order of the court, and they may be granted at any stage of the suit, and are regulated by the Code of Civil Procedure. Whereas, Section 41 of the Specific Relief Act deals with as to when injunction can be refused, and it says that an injunction cannot be granted in the case mentioned therein. Section 41(b) says that 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. It is, therefore, manifest that Section 41(b) is restriction on the power of the court in the matter of grant of injunction and says that a court cannot grant injunction against any person from instituting or prosecuting any proceeding in a court not subordinate to such court. Therefore, a co-ordinate court has no jurisdiction to grant injunction restraining the parties from instituting or prosecuting any proceeding in a court having co-ordinate jurisdiction. More-over, inteim relief is an ancillary to the main relief which may be available to the party on final adjudication of his right in a suit or proceeding. Where main relief cannot be granted under law there is no question of granting interim relief in the said proceeding.

The question raised has already been resolved by the Apex Court in the case of Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, wherein it has been held that expression injunction'' in Section 41(b) is not qualified by an adjective and therefore, it would comprehend both interim and perpetual injunction. An interim relief can be granted only in aid of, and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceedings. If this be the purpose to achieve which power to grant interim relief is conferred, it is inconceivable that where final relief cannot be granted in the terms sought for because the statute bars granting such elief ipsofacto temporary relief of the same nature cannot be granted.

In the instant case it is manifest that T.S. No. 577/91 was pending before 1st Subordinate Judge, Patna in which Appellants were not party. The Appellants filed T.S. No. 193/92 before the Subordinate Judge, Ranchi. Subordinate Judge, Ranchi was not subordinate to the Subordinate Judge, Patna. The Subordinate Judge, Patna granted injunction restraining the Plaintiff of T.S. No. 193/92 pending before the Subordinate Judge, Ranchi rastraining them from proceeding with the suit. The order is obviously in contravention of Section 41(b) of the Specific Relief Act which bars the jurisdiction of the court in granting injunction in such matters as discussed above. The decision of the Apex Court, as indicated above, is fuily applicable in the facts and circumstances of the case. Thus the order impugned cannot be held to be legal.

On consideration, as discussed above, it is held that the Subordinate Judge 1st, Patna has committed error of law in passing the order impugned. Accordingly, this appeal is allowed and the order impugned is hereby set aside, however, without cost.