@JUDGMENTTAG-ORDER
Prabha Sridevan, J.@mdashThis revision was originally filed u/s 115 C.P.C., against the order passed in C.M.A. NO: 67 of 2003 confirming the
order passed in I.A. No. 9980 of 2003 in O.S. No. 2821 of 2003. Thereafter, CMP. NO. 14686 of 2003 has been filed for conversion of the
above revision under Art. 227 of the Constitution of India.
2. Preliminary objection was taken regarding the maintainability of the C.M.P., for conversion and thereafter the matter was argued. The question
of maintainability as well as the merits of revision were heard and decided together.
3. The respondent is the plaintiff who entered into a franchise agreement, (hereinafter referred to as agreement in short), with the petitioner on
15.12.1999 agreeing to provide the service which shall mean the ""channels offered by the respondent to the franchisee"". The period of agreement
was five years. As per Clause 2(k) of the agreement any breach by the franchisee, gave the respondent the discretion to discontinue the service by
giving seven days notice or to continue the agreement. The franchisee is the petitioner.
4. The petitioner also bound himself under Clause 4(3) of the agreement not to enter into similar agreement or to carry signals from third parties
during the currency of the said agreement. The next day a Purchase Agreement was entered into by the same parties whereunder the business of
distributing satellite signals owned by the petitioner was transferred to the respondent for a total consideration of six lakhs.
5. O.S. No: 2881 of 2003 was filed on 6.6.2003 for a declaration that the franchise agreement was valid and for a permanent injunction restraining
the franchise from disconnecting the link or discontinuing the transmission or from taking signals from links from any third parties for the purpose of
broadcast, distribution or transmission. I.A.No:9980 of 2003 was filed for interim injunction. Interim injunction was granted by the learned VIII
Assistant City Civil Judge, Chennai, who was satisfied that there was prima facie case, that the respondent has shown balance of convenience in
his favour and also irreparable loss. To enable the petitioner to resume cable service connection with the respondent, directions were issued.
6. The learned counsel for the petitioner submitted that the courts below had clearly exceeded their jurisdiction, they had construed the documents
erroneously. While the prayer in the suit was only for permanent injunction, the order passed by the court below was in effect a mandatory
injunction and this cannot be granted. For this purpose, reliance was placed upon The University of Bihar and Another Vs. Rajendra Singh, where
it was held that .....""if a mandatory injunction was granted at all on an interlocutory application, it was granted only to restore the status quo and not
granted to establish a new stage of things, differing from the state which existed at the date when the suit was instituted...."" Reliance was also
placed on the pronouncement in Multichannel (India) Limited Vs. Kavitalaya Productions Pvt., Limited, 17-A Karpagambal Nagar, Mylapore,
Chennai-4 and two others, , where a Division Bench of this Court held that when the rights under the contract which is sought to be enforced was
itself in dispute presumption of prima facie case was not proper. The learned Counsel also referred to JT (2003) 6 S.C., Page 465, (Surya Dev
Rai V. Ram Chander Rai) where it was observed that frequently matters may arise before the Supreme Court where the question would arise
whether the jurisdiction under Art. 226 and 227 have to be exercised even when the lis is between two private parties and it was held that where
the error is manifest, apparent and when grave injustice or gross failure of justice would have occasioned, this court could exercise its supervisory
jurisdiction under Art. 227 of the Constitution. Therefore it was submitted the application for conversion is maintainable. The learned senior
counsel for the respondent relied on Vishesh Kumar Vs. Shanti Prasad, where it was held that ""to recognise a revisional power in the High Court,
over a revisional order passed by the District Judge would defeat the object of the Legislative Scheme"" and therefore a revision petition u/s 115 is
separate and distinct from a petition under Art. 227 and one cannot be identified with the other. Reliance was also placed on 2003 (II) CTC (S.C)
122 (Sadhana Lodh vs. National Insurance Company Ltd., and another) where it was held that the High Court ought not to have entertained
petition under Art. 227, when the alternative remedy of appeal was available under the Statute. In AIR 2000 3495 (SC) the Supreme Court held
that Art. 227 must be sparingly exercised and may be exercised to correct the error of jurisdiction an the like but not to upset the finding of fact
which falls in the domain of an Appellate Court only and that the High Court had exercised its jurisdiction vested in it under Art. 227. Therefore it
was submitted that Conversion couldn''t be ordered.
7. 2003 (2) CTC 122 was a case where the statutory right of appeal had been provided for. The Supreme Court held that where law provides the
right of appeal on limited grounds, it cannot be misused by filing a petition under Art. 227 and only when the remedy of filing a revision before the
High Court had been expressly barred by the State enactment, Petition under Art. 227 would lie.
8. In this case, the learned counsel for the petitioner urged that the courts below had virtually granted a relief in favour of the respondent which was
not prayed for in the plaint. It was also submitted that whether the plaintiff succeeded or failed in the suit, this order directing the respondent to
restore supply and to place the optical node in the control room of the petitioner would remain unaltered. No order can give a party such a right.
9. In Mrityunjay Sen Vs. Shrimati Sikha Sen, , the Calcutta High Court relied on a three Judge Bench decision of the Supreme Court in 1999(79)
D LT 555 (SC) (Municipal Corporation of Delhi Vs. R.P. Khaitan), a short judgement which is extracted hereunder:-
The right to approach the High Court under Articles 226 or 227 of the Constitution, or both is within the ambit of the right to avail constitutional
remedies as enshrined in Article 32 of the Constitution. These are styled as extraordinary remedies because they are not part of the ordinary
procedure prescribed for adjudication of disputes in the ordinary courts of law. The remedy of revision u/s 115 of the CPC whereby the High
Court is empowered to call for the record of any case which has been decided by any court subordinate to it, and in which no appeal lies thereto is
an ordinary one empowering it to pass appropriate orders when the subordinate court appears to have exercised a jurisdiction not vested in it by
law or to have failed to exercise its jurisdiction so vested or to have acted in exercise of its jurisdiction illegally or with material irregularity. This
remedy presupposes the cause having been in a court subordinate to such High Court.
In these set of appeals the view expressed by the Delhi High Court has been questioned whereby petitions under Article 226 of the Constitution
were held by it to be not maintainable in the presence of the regular remedy available u/s 115 CPC towards challenging the orders of the District
Judge. Delhi, passed u/s 169(1) of the Delhi Municipal Corporation Act. Few of these appeals are by the Municipal Corporation of Delhi and the
remaining are by the tax-payers. WE treat them all as identical.
It is true that the extraordinary remedies provided under Articles 226 and 227 of the Constitution are dependent upon the High Court willing to
interfere in a matter for which a large measure of discretion rests with it. Its power is so wide so as to envelope not only all aspects of the matter
but orders can be passed of such nature as the High Court thinks fit. The jurisdiction as such is not curtailed to meet questions of parameters. On
the other hand, the regular remedy u/s 115, CPC is hedged by the language o the provision. Only errors of jurisdiction and material irregularities in
the exercise of jurisdiction bring about a cause within the ambit of that provision. All the same it is worthy of notice that the Forum for the
aforementioned three remedies ordinary was well as extraordinary is with the High Court itself. We see no reason then as to why the frame of the
cause be determinative. It is for the litigant to choose the remedy and it is for the High Court to grant or deny relief thereon having regard to the
facts and circumstances of each case. We may, however, add that the existence of an alternative remedy can by itself be a ground for the High
Court refusing to exercise jurisdiction but it is not as if jurisdiction of the High Court is ousted by such existence. The High Court''s dependence on
Vishesh Kumar Vs. Shanti Prasad, in refusing to convert a petition u/s 115, CPC to be one under Art. 227 of the Constitution may have been
justified on the facts of that case, but the same cannot be treated as a precedent to oust jurisdiction of the High Court vested in it under the law.
The High Court certainly is entitled to convert any proceedings instituted before it it one manner to be that of another provided a proper cause has
been made out and in the interest of justice.
10. The petitioner claims that grave injustice would arise if he is not permitted to convert the petition to one under Art. 227 of the Constitution of
India and if he is restricted by the provision of amended Section 115. Relying on the above decision and the decision in (2003) 6 SCC 763, where
it was held that interlocutory orders against which remedy of revision has been excluded by the amended CPC are still subject to certiorari and
supervisory jurisdiction of the High Court under Art. 226 and 227, the petitioner is permitted to covert the Revision to one under Art. 227 of the
Constitution of India. The petitioner shall pay the additional Court Fee on or before 27.10.2003 and on such payment the Registry shall convert
this Revision as one under Art. 227.
11. Now, the merits of the case. According to the petitioner it was the respondent who committed the breach and stopped supply on 14.4.2003.
Even prior to the date there were some problems between the parties. According to the petitioner it is only after the respondent stopped the signals
on 14.4.2003 and the petitioner received numerous complaints from their end-user customers that the petitioner was forced to take signals from
M/s. Hathway Cable and Data Com.Network Pvt., Ltd., Thereafter the petitioner informed to the respondent that since the respondent had
unilaterally stopped the signals, he had no obligation to pay any subscription and that it was open to the respondent to remove the Node by
sending their authorised representative. This was in response to the Fax Message issued by the respondent that they were not comfortable with
keeping the Optical Node any longer with the petitioner.
12. According to the learned counsel for the petitioner having taken back the optical node and having acknowledged the fact that the services were
disconnected, the respondent had come with a false case as though the petitioner was only ""attempting to subvert the services"" contrary to the
terms of the agreement. Learned Counsel submitted that a party who has not come to the court with clean hands is not entitled to the benefit of
injunction. He also submitted that when the signals were stopped in the month of April, the two months'' delay in filing the suit would also disentitle
the respondent from the benefit of injunction. It was also submitted that after the order of injunction, the conditional Access System had been
introduced in the Metropolitan City of Chennai and therefore this should be taken note of while passing orders since this would have a direct
bearing on the matter.
13. It was also submitted that both the courts below had confused themselves with regard to the effect of the purchase agreement and the franchise
agreement had come to the conclusion that the respondent and had bought the petitioner''s business over and had passed orders under this
misconception. The mandatory direction issued by the courts below was also unjust.
14. The learned Senior Counsel appearing for the respondent on the other hand would submit that there was no suppression of facts and if at all
one party''s conduct is blameworthy, it is the petitioner''s as he had committed breach of the agreement which was for a period of five years. It was
also submitted that the scope of Section 115 after the Amendment is very limited and while right of appeal is an substantive right, right of revision
u/s 115 is essentially a source or power of the High Court to have effective control on the functioning of the subordinate courts by exercising
supervisory power as has been held by the Supreme Court in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, .
15. It was submitted that the petitioner who claims that the signals had been stopped on 14.4.2003, did not request the respondent to resume
signals, nor did he make any complaint regarding the stoppage of signals, Only on 21.4.2003 a registered letter was sent by the petitioner to the
respondent indicating that he had already taken signals from another provider. According to the learned senior counsel, the petitioner wanted to
shift to another provider in breach of the franchise agreement and therefore the petitioner had falsely alleged that it was the respondent which
stopped the signals. The learned senior counsel pointed out that if the petitioner''s case was true, then there was no occasion for the respondent to
issue a telegram on 19.4.2003 demanding payment of subscription from April to avoid delink. The very word ""to avoid delink"" would show that as
on 19.4.2003, the respondent service had not been stopped.
16. In M/s. Gujarat Bottling Co. Ltd. and others Vs. Coca Cola Company and others, , it was held that,
30. There is a growing trend to regulate distribution of goods and services through franchise agreements providing for grant of franchise by the
franchiser on certain terms and conditions to the franchisee. Such agreements often incorporate a condition that the franchisee shall not deal with
competing goods. Such a condition restricting the right of the franchisee to deal with competing goods is for facilitating the distribution of the goods
of the franchiser and it cannot be regarded as in restraint of trade.
Xx xx xx xx xx
.....In that context, it is also relevant to mention that the said negative stipulation operates only during the period the agreement is in operation
because of the express use of the words ""during the subsistence of this agreement including the period of one year as contemplated in paragraph
21"" in paragraph 14. Except in cases where the contract is wholly one sided, normally the doctrine of restraint of trade is not attracted in cases
where the restriction is to operate during the period the contract is subsisting and it applies in respect of a restriction which operates after the
termination of the contract.
Xx xx xx xx xx
42. In the matter of grant of injunction, the practice in England is that where a contract is negative in nature, or contains an express negative
stipulation, breach of it may be restrained by injunction and injunction is normally granted as a matter of course, even though the remedy is
equitable and thus in principle a discretionary one and a defendant cannot resist an injunction simply on the ground that observance of the contract
is burdensome to him and its breach would cause little or no prejudice to the plaintiff and that breach of an express negative stipulation can be
restrained even though the plaintiff cannot show that the breach will cause him any loss.
xx xx xx xx xx
43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court.
While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of
convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is
disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed
by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief
by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be
resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be
adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.
Xx xx xx xx xx
.........Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is
purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party
invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in
nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for
bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking
relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction
under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim
or temporary injunction order already granted in the pending suit or proceedings.
Xx xx xx xx xx
48. Analysing the conduct of the GBC in the light of the above principles, it will be seen that GBC, who was a party to the 1993 Agreement, has
not acted in conformity with the terms set out in the said agreement. It was itself, prima facie, responsible for the breach of the agreement, as would
be evident from the facts set out earlier. Neither the consent of Coca Cola was obtained for transfer of shares of GBC nor was Coca Cola
informed of the names of persons to whom the shares were proposed to be transferred. Coca Cola, therefore, had the right to terminate the
agreement but it did not do so. On the contrary, GBC itself issued the notice for terminating the agreements by giving three months'' notice.
17. In Vijay Minerals Pvt. Ltd. Vs. Bikash Chandra Deb, the Calcutta High Court held that,
.........denial of an order of injunction will almost amount to dismissal of the suit of the plaintiff at the interlocutory stage and it is the duty of the
Court to implement the solemn agreement between the parties.
18. The learned counsel for the petitioner has given the chronological statement of events. On 3.4.2003 a Notice was issued by the respondent to
the petitioner that the cable sold by the petitioner should not be encumbered. On 4.4.2003, the petitioner denied any intention to sell the cables and
asked the respondent to remove the cables. On 14.4.2003, the petitioner claims that signals were stopped. On 15.4.2003, the petitioner takes the
signals from another provider. On 19.4.2003, the respondent sends a telegram calling upon the petitioner to pay subscription for the month of April
to avoid delinking. On 21.4.2003, a registered letter was sent by the petitioner to the respondent that the signals had been illegally stopped by the
respondent and therefore no subscription would be paid and that the petitioner is already taking signals from another provider. On 29.4.2003 a
Fax is sent by the respondent to the plaintiff along with xerox copy in which it is stated that since the petitioner has taken signals from third party,
the optical node belonging to the respondent would be shifted. It is seen from the paper book that the receipt of the optical node and accessories is
acknowledged by a representative of the respondent. Thereafter notices were issued and the suit is filed.
19. Both the parties agree that there was an agreement dated 15.12.1999. It is for a period of five years. Therefore, it will come to an end on
14.12.2004. Clause 4(e) of the agreement bars the franchisee from entering into similar agreement with any third party. It is clear from the telegram
dated 3.4.2003 and 4.4.2003 that the relationship between the parties had started deteriorating. But as regards the claim that signals were stopped
on 14.4.2003, there is no material to show that it got stopped on that day. It is only in the letter dated 21.4.2003, that the petitioner claims that
signals had been stopped on 14.4.2003 without warning, causing loss and that this had also affected their obligation to give uninterrupted Cable
T.V. Service.
20. From the submissions made on behalf of both the parties, it is clear that the Multi System Operators like the respondent feed their signals
through optical nods. Para 2(h) of the franchise agreement shows that the cable and accessories to the control room of the petitioner for providing
service shall always be the property of the respondent. The explanation given by the respondent that when the petitioner shifted his allegiance to
another third party, they were forced to remove their optical node is clearly acceptable. The respondent definitely would not want to have his rival
MSO to supply signals through the optical nodes that belong to the respondent.
21. The non mentioning of all the details in the plaint has not caused any prejudice, since in the reply to the interim application all the facts were
stated. the entire correspondence was placed before the Court and all the documents were also produced before the court which considered them
and came to the conclusion that injunction should be granted.
22. Now the question is whether the direction given by the court amounts to mandatory direction contrary to what was prayed for by the
respondent in the plaint?
23. The agreement is for a period of five years unless the respondent choose to discontinue the services. Therefore every day the petitioner gets
signals from another third party the right of the respondent is being violated; and the franchisee agreement itself speaks of the huge investment that
the respondent had made, vide clause 2(k) of the agreement and that is why the courts below have come to the conclusion that the respondent is
entitled to the grant of injunction. If the injunction order is to be an effective order and not just a paper order, it is necessary that the respondent
should transmit signals to the petitioner''s control room which are thereafter transmitted to the enduser. Without the optical node this cannot be
done. So unless the optical node is replaced, the respondent''s right under the Franchise Agreement cannot be protected. Therefore, it cannot be
said that the court below had exceeded its jurisdiction.
24. In this context, the observations made by the learned Judge of the Calcutta High Court in the decision referred to supra are very apposite. To
deny interim injunction would not be in accordance with equity and justice since it would allow the defendant to flout the agreement with the
blessings of the court on the ground that damages would be an adequate remedy. There is a negative covenant viz., Cl.4(e) in the agreement and
according to the Coco Cola case breach of a negative stipulation is normally restrained by an order of injunction and the question of balance of
convenience or damages being an adequate remedy does not arise. The petitioner does not deny the agreement. It is his case that the agreement
was unilaterally terminated by the respondent by stopping the signals on 14.4.2003. If there is something to show that on 14.4.2003, the signals
were stopped and that the petitioner had immediately voiced his objection, there may be some ground for his grievance. But there is nothing to that
effect. Instead, we have documents to show that the petitioner had approached the third party MSO on 15.4.2003. It is not possible to accept that
on 14.4.2003, the signals were stopped. On the other hand, there is the communication dated 19.4.2003 from the respondent asking the petitioner
to pay the subscription for April 2003 to avoid delinking. The words ""avoid delink"" would mean that at least till 19.4.2003 the link was not
snapped.
25. If the petitioner does not pay the additional court fees as per para 9, then the CMP shall stand dismissed. Then the merits of the matter as
discussed above would show that no interference under Sec. 115 CPC is possible as per Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj
Developers and Others, . If the petitioner pays the additional court fees then the CMP is allowed and the revision is converted to one under Art.
227 of the Constitution of India. Exercising jurisdiction under Art. 227, it is found that the courts below have neither exercised a jurisdiction they
do not have, nor have they failed to exercise a jurisdiction which they do have, nor has the exercise of jurisdiction been done in a matter not
permitted by law occasioning failure of justice or grave injustice. So stepping in to exercise of supervisory jurisdiction is not called for.
26. The respondent shall provide signals to the petitioner as directed by the courts below within one week. If the respondent does not provide the
signals within one week, it is open to the petitioner to approach this court for appropriate direction.
27. Since both the parties have expressed that they will be put to extreme inconvenience if the suit is unnecessarily prolonged, the court below is
directed to dispose of the suit within four months from the date of receipt of this order.
