Venkatasubbiah Chettiar vs Sesha Aiyar

Jackson, J.—This is a petition u/s 115 of Act V of 1908, and Section 107, Government of India Act.

Petitioner and respondent were the only two candidates at the election held on 22nd September, 1922 for the appointment of a Councillor to

represent the 12th Ward of the Trichinopoly Municipality. The petitioner was declared duly elected, and respondent filed a petition before the

District Judge of Trichinopoly under the rules framed in accordance with Section 303(2)(b), Madras Act V of 1920. While the inquiry into this

petition was pending the respondent applied in I.A No. 625 of 1922 purporting to be under Sections 94, 141, 151 and Order XXXIX Rule 2 of

the CPC that the present petitioner be restrained by a temporary injunction from taking his seat in the Municipal Council until the disposal of the

petition. In his order on this application dated 30th October 1922, the District Judge restrained the petitioner by interim injunction from taking his

seat in the Council. Hence this revision petition.

The question for determination is whether the District Judge had jurisdiction to pass such an injunction. Rule 1 of the Rules for the decision of

disputes as to the validity of an election lays down that no election held under the Madras District Municipalities Act shall be called in question

except by an election petition presented in accordance with these rules. Under Rule 6.

Every election petition shall be inquired into by the Judge as nearly as may be in accordance with the procedure applicable under the CPC 1908

to the trial of suits.

It is argued for the petitioner that ''procedure applicable to the trial of suits'' cannot include the power to pass an interim injunction of the sort in

question while on behalf of respondent it is contended that Rule 6 does convey such power and in any case the District Judge has a residuary

power which enables him to take such action under the Code as may seem proper during the course of the enquiry.

It is to be noted that the application of the CPC to the inquiries is definitely restricted in Rule 6 to the trial of suits. Had the Government intended

that the Judge in an election inquiry should have the same powers as he has in the exercise of his original jurisdiction, this presumably would have

been stated in terms. In this connection Rule 6 may be compared with Section 5 of the Provincial Insolvency Act where full powers are conferred

upon the Insolvency Court, although the differences in the wording of the respective clauses is significant. An interim injunction can only be within

the jurisdiction of the Judge holding an inquiry into an election petition if that injunction is for the purposes of and in furtherance of the trial which he

is conducting. But a temporary injunction under Order XXXIX, Rule 2 is nob necessarily for the purposes of the trial. Section 94, CPC out of

which Order XXXIX, arises is framed generally ''in order to prevent the ends of justice from being defeated,'' and then, under Order XXXIX,

Rule 2.

In any suit for restraining the defendant from committing... an injury the plaintiff may apply to the Court for a temporary injunction to restrain the

defendant from committing the injury.

An injunction restraining an elected candidate from taking his seat may be in the ends of justice assuming that there is prima facie ground for

holding his election to have been so irregular that any act consequential upon that election is a fraud upon the defeated candidate, but such an

injunction in no way affects the conduct of the trial. A Court which issues such an injunction is really proceeding as if it were seizad of the case in

the ordinary exercise of its civil jurisdiction and not as a Court inquiring under special rules into the validity of an election. And under Rule 1 an

election can only be called into question by a petition presented under the rules. When the party is specially prohibited from invoking the Civil

Courts in the ordinary exercise of their judicial functions, I can see no warrant for a Court importing into the inquiry its ordinary Civil powers of its

own motion. And, of course, if a Court cannot act u/s 94 and Order. XXXIX, Section 151 does not extend its powers. The learned District Judge

has justified his order in I.A. No. 630 of 1922 on the ground that it is better that a councillor whose qualifications for his office are questioned,

does not take part in an election (i.e., does not sit as councillor and vote for the election of (Chairman) as that may lead to questions about the

validity of the election. Had the disqualification in question been one falling within the provisions of Section 50, there could be no such difficulty

because it is expressly provided in Section 51, Clause 3, that pending the decision of the District Judge after inquiry into the alleged disqualification,

the councillor shall be cleaned to be qualified. By parity of reasoning I think that the councillor whose election is impugned on account of alleged

irregularities may also be deemed to be qualified pending the Judge''s decision.

The rules u/s 302(2)(b) do not contain a provision similar to that in Section 51, but in Rule 13 it is laid down that where an election is declared

void the seat of the returned candidate shall be deemed to be vacant from the date of the Judge''s order, which implies that up to the date of the

Judge''s order the unseated councillor shall be deemed to have been qualified.

Therefore I find no reason to hold that Government must necessarily have intended that a power of granting interim injunctions should vest in the

Judge inquiring under Rule 6. The English decisions to which attention has been directed Aslatt v. Southampton Corporation (1881) 16 Ch. D.

143: 29 W.R. 117; Richardson v. Methly School Board (1898) 3 Ch. 510 : 62 L.J Ch. 943 : 69 L.T. 308 : 49 W.R. 27 establish that the Court of

Chancery has exercised this power of granting injunctions, but I do not think it is decided that in the exercise of their ordinary judicial functions the

Indian Courts acting under Order XXXIX, Rule 2 can exercise this power of Sarvothama Rao v. Chairman Municipal Council Saidapet 73 Ind.

Cas. 619 : (1923) M.W.N. 266: AIR (1923) (M) 475. The question is whether this power has been carried into the special rules for election

enquiries, and in this connection the English cases are valuable chiefly as showing that such powers should be exercised with the greatest

discrimination. In Aslatt v. Southampton Corporation (1881) 16 Ch. D. 143 : 43 L.T. 461 the Corporation was restrained from declaring the

office held by plaintiff void. (Here, it may be noted, the status quo was preserved by the interim order of the Court which is very different from

temporarily unseating an elected candidate).

In the course of that ruling Jessel, M.R., observes at p. 148 that the mere fact that some proceeding was being taken to test a right to continue

in an office was never considered a ground for interfering by injunction; because the old Court of Chancery never interfered if a legal right only was

in question. The Judicature Act, 1873 conferred upon Courts the right of granting injunctions but as a general rule, the Court only interferes, when

there is some question of property; though there may be interference even when personal Status is the only thing in question.

This case is considered in Richardson v. Methly School Board (1898) 3 Ch. 510 : 49 W.R. 27 where certain doubts in respect of Aslatt v.

Southampton Corporation (1881) 16 Ch. D. 143 : 43 L.T. 461 are discussed, but the Court concludes by granting a similar injunction. That the

Court if Chancery has exercised this power is no warrant for assuming that it was meant to be included by Government within the provisions of

Rule 6, and it is not disputed that Indian Courts in the exercise of their ordinary functions under the CPC would have such power of granting

injunction. I find that the District Judge acted without jurisdiction in granting an interim injunction by his order on I.A. No. 623 of 1922, dated 30th

October 1925, and order that it be cancelled.

Respondent will pay the cost of the petitioner.

The District Judge after hearing the present petitioner reaffirmed the interim injunction in his order of 3rd November 1922 and that order is

sought to be revised in C.R.P. No. 809 of 1922 which must also be allowed on the same grounds but without costs.