@JUDGMENTTAG-ORDER
S.B. Roy, J.@mdashBy this revision petition the petitioner has challenged the ex parte order of ad interim injunction dated 26-8-92 passed by Munsif No. 1, Golaghat in Misc. (J) Case No. 14/92 arising out of Title Suit No. 24/92.
2. The petitioner is the Joint Managing Director of Buragohain Tea Estate (P) Ltd., Golaghat. The aforesaid Buragohain Tea Estate (P) Ltd. is a registered company incorporated in 1927 for cultivation of tea and other activities as detailed in the Memorandum of the Association of the company. The respondent is a shareholder of the said company.
3. The case of the petitioner is that the respondent filed Title Suit No. 24/92 in the Court of learned Munsif No. 1, Golaghat for a declaration that the impugned resolutions Nos. 1, 2 and 3 adopted in the Extraordinary General Meeting of the said company held on 17-8-92 as illegal, void and inoperative in law and for a further declaration that the extraordinary general meeting of the company dated 17-8-92 was illegally held in violation of the Article of Association of the said company and for permanent injunction restraining all the defendants from giving effect to the aforesaid impugned resolutions Nos. 1, 2 and 3 for the best interest of the company. The respondent also filed a special petition in the Court of learned Munsif under Order 39, Rule 1 and 2, C.P.C. for granting temporary injunction restraining the present petitioner (sic) from giving effect to the aforesaid resolutions Nos. 1, 2 and 3 of the extraordinary general meeting of the shareholders of the company till disposal of the suit. In the aforesaid suit and the petition for injunction, the company and the present petitioner along with some others were impleaded as defendant/opposite parties.
4. By the impugned order dated 26-8-92, the learned Munsif granted ex parte ad interiam injunction against the present petitioner and other defendants restraining them from giving effect to the impugned resolutions adopted in the extraordinary general meeting of the share-holders of the company held on 17-8-92, "till disposal of the suit." By the same order, the learned Munsif also directed to issue notice upon the present petitioner and other defendants in the said suit to show cause as to why ad interim injunction order shall not be confirmed till disposal of the suit and accordingly fixed 21-9-92 for hearing on the injunction matter. In response to the said show qause notice, the petitioner and other defendants/opposite parties in the said suit filed their objection, opposing the prayer for injunction.
5. Mr. J. N. Sarma, learned counsel for the petitioner submits that the order of injunction has already been made absolute without hearing the petitioner and other defendants and as such issuance of show cause notice as to why order of ad interim injunction should not be confirmed till disposal of the suit is meaningless. Relevant portion of the injunction order is quoted below:--
"An ex parte ad interim injunction is hereby granted against the defendants restraining them from giving effect to the impugned resolutions adopted at the Extraordinary General Meeting of the shareholders held on 17-8-92. The defendants Nos. 1 to 6 have hereby restrained from giving effect to the said resolutions till the disposal of the main suit. Issue notice upon them asking them to show cause as to why the ad interim injunction order passed by shall not be confirmed till the disposal of the main suit. Fixed on 21-9-92 hearing on injunction matter."
6. Mr. Sarma, learned counsel for the petitioner submits that as the ex parte ad-interim injunction was based in absolute terms and hence question of showing cause against the aforesaid show-cause notice is absolutely meaningless and therefore, the petitioner has absolutely no alternative, but to file the present petition.
7. Mr. D. N. Choudhury, learned counsel for the respondents raised a preliminary counsel for the respondents raised a preliminary objection against maintainability of this petition and insisted that the aforesaid question as to the maintainability of this petition should first be decided. Contention of "Mr. Choudhury is that present petition has been filed u/s 115 read with Section 151, C.P.C. and Article 226 of the Constitution of India. Sum and substance of the contention of Mr. Choudhury is that the impugned order is appellate under Order 43, Rule 1, C.P.C. and as such no revision petition u/s 115, C.P.C. is maintainable against such order. In this respect Mr. Choudhury drew my attention to Sub-section (2) of Section 115, C.P.C. In course of the hereing Mr. J. N. Sharma, learned counsel for the petitioner never made any attempt to show that the present petition is maintainable under Article 226 of the Constitution of India and therefore, it is clear that Mr. Sharma did not press the petition under Article 226. Mr. Sarma was also fair enough to concede that the petition u/s 115, C.P.C. is not competent in view of what is provided in Sub-section (2) of Section 115," C.P.C. But Mr. Sarma contends that this Court can surely invoke its jurisdiction under Article 237 of the Constitution of India and interfere with the impugned order, inasmuch as, circumstances of the case would justify such interference under Article 227.
8. Mr. Sharma referring to the impugned order submits that the suit is not maintainable and the learned munsiff has no jurisdiction to entertain a suit of this nature. Therefore, when a Court acts without or in excess of jurisdiction or acts in a patent or flagrant violation of law, this Court has jurisdiction to interfere with such action of the Court below under Article 227 of the Constitution, irrespective of whether the impugned order of the Court below is appealable or not. It was further pointed out that under Order 39, Rule 1 and 2, C.P.C., no ex parte injunction can be granted in absolute terms without notice to the other side. In the instant case, learned Munsiff while granting ex parte ad-interim injunction in absolute terms, directed notice to be issued upon the petitioner and other defendants in the suit to show cause as to why the ad-interim injunction should not be made absolute till disposal of the suit. After making an ex parte ad-interim injunction in absolute terms issuance of such notice to show cause is a farce and mockery of fair hearing.
9. I do not like to decide the question as to whether, the suit is maintainable or not or as to whether the learned Munsiff had acted in excess of his jurisdiction or as to whether he acted in patent and flagrant violation of law, inasmuch as, such a decision or observation is likely to prejudice either this or that party in the main suit.
10. Assuming that learned Munsiff has acted without or in excess of jurisdiction or in erroneous assumption of jurisdiction or he has acted in patent or flagrant violation of law, such erroneous assumption of jurisdiction or other legal infirmities can certainly be corrected by the appellate Court, inasmuch as, the impugned order is clearly appealable under Order 43, Rule 1, C.P.C. and such remedy is far more comprehensive and efficacious remedy than the remedy by way of an application under Article 227 of the Constitution.
11. In this respect Mr. Sarma has referred to some decisions in order to buttress his contention that when an inferior Court of law acts in erroneous assumption or excess of jurisdiction, existence of alternative remedy by way of appeal cannot be a ground for refusing appropriate relief under Article 227 of the Constitution. Mr. Sarma relied upon
12. Admittedly this petition was not filed under Article 227 of the Constitution. In fact the petition was styled as one u/s 115 read with Section 151, C.P.C. and Article 226 of the Constitution. After realising that the petition is not maintainable under the aforesaid provision of law, Mr. J. N. Sarma, learned counsel for the petitioner urged that in the circumstances of the case this Court should suo motu convert the case into one under Article 227 of the Constitution. In reply to this Mr. D. N. Choudhury, learned counsel for the respondent referred to
"17. It has been urged by the appellant in Vishesh Kumar v. Shanti Prasad (Civil Appeal No. 2844 of 1979) that in case this Court is of the opinion that a revision petition u/s 115, Code of Civil Procedure, is not maintainable, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We are unable to accept this prayer. A revision petition u/s 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other."
13. From the above it is clear that the petition u/s 115, C.P.C. is a separate and distinct proceeding from a petition under Article 227 of the Constitution and one cannot be identified with the other and on this ground their Lordships of the Supreme Court refused to remand the case of
14. Mr. D. N. Choudhury also referred to another decisions of the apex Court in
"The respondent should have preferred as appeal to the High Court against the decree passed by the City Civil Court but instead of doing so, the respondent filed Special Civil Appln. No. 2936 of 1975 in the High Court under Article 227 of the Constitution for quashing and setting aside the decree of the City Civil Court. The main ground on which relief was sought by the respondent was that the City Civil Court had no jurisdiction to try the suit and in passing the decree for eviction, the City Civil Court had usurped the jurisdiction of the Small Causes Court. Immediately, on filing the special civil application, the respondent obtained an ex parte order from the vacation Judge staying the operation of the decree of the City Civil Court, but on application made on behalf of the appellant, the ex parte order was vacated by the vacation Judge on November 8, 1975. The vacation Judge pointed out that the special civil application was not maintainable since an adequate alternative legal remedy by way of appeal was open to the respondent. The special civil application thereafter came up for admission before Vaidya, J. and the learned Judge took it up for final hearing within seven days and disposed it of by a judgment dated November 18, 1975. The learned Judge curiously enough did not interfere with the decree passed by the City Civil Court but merely directed stay of execution of that decree until the earlier suit filed by the respondent against the appellant was decided by the Small Causes Court and observed that it should be open to the Small Causes Court to arrive at its own conclusion without being in any way bound by the decision of the City Civil Court, or in other words, the decision of the City Civil Court should not be regarded as binding on the parties in the adjudication of the case before the Small Causes Court. The order appeared to us to be as patently erroneous that we /promptly granted special leave to the appellant and fixed an early date for the hearing of the appeal."
15. In para 6 of the aforesaid decision, Supreme Court also observed, "It is very difficult to appreciate the reasoning behind the order made by the High Court. It is to say the least an extraordinary order which flies in the face of law and judicial procedure. The respondent had clearly a legal remedy available to him by way of an appeal against the decree of the City Civil Court and this remedy was not only adequate but more comprehension than the one under Article 227 of the Constitution. Even so, for some inexplicable reason, the respondent chose to prefer a special civil application under Article 227 of the Constitution and Vaidya, J. entertained the special civil application and granted relief to the respondent, casting to the winds the well settled principle that the High Court does not ordinarily, in exercise of its discretion, entertain a special civil application under Article 227 of the Constitution where an adequate alternative legal remedy-is available to the applicant............................ ..................... It is indeed difficult to see how the learned Judge could entertain a special civil application against a decree passed by a subordinate Court when the procedural law allows an appeal against it and that appeal lies to the High Court itself. It must be realised that the jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked".
16. However, it is true that the impugned order is little curious in some respect. By the impugned order is little curious in some respect. By the impugned order, the learned Munsif called upon the defendant to show cause as to why ex parte ad-interim injunction should not be made absolute till disposal of the suit. But by the same order learned Munsiff issued injunction in the following language :--
"The defendants Nos. 1 to 6 are hereby restrained from giving effect to the said resolutions till disposal of the main suit."
Learned Munsiff cannot pass any such injunction order in absolute terms at the stage at which the order of injunction was issued. It seems to me that it is a mere mistake. Intention of the learned Munsiff is clearly brought out from the order itself that he did not intend to make the ex parte ad interim injunction absolute. Otherwise, the learned Munsiff would not have called upon the defendants to show cause as to why the "ad interim injunction passed shall not be confirmed till disposal of the suit."
17. From the above it is apparent that the learned Munsiff intended thereby to issue an ad interim injunction till disposal 1 of the Misc. Case, i.e. the Misc. application for temporary injunction and not till disposal of the suit. This is clearly a bona fide mistake on the part of the learned Munsiff, otherwise by the said order he would not have directed issuance of notice calling upon the defendants to show cause as to why the ad interim injunction order so passed should not be confirmed till disposal of the suit. In view of the aforesaid circumstances, I am of the view that no interference with the impugned order is called for under Article 227 of the Constitution.
18. Before parting with the case, I would like to observe that the period of limitation for preferring an appeal against the impugned order under Order 43, Rule 1, C.P.C. is perhaps over in the meantime. In this view of the matter, I consider it necessary that in order to protect the genuine interest of the petitioner and in the interest of justice, the learned Munsiff should be directed to dispose of the injunction petition within a period of three weeks from the date of receipt of copy of this order. He shall also frame a preliminary issue on the question as to whether the suit filed by the respondent is maintainable or not and shall, after hearing the parties, give a decision on the preliminary issue along with his decision on the petition of the respondent/plain-tiff for temporary injunction, provided the defendants want to raise such an issue.
19. In course of the hearing of the petition of the respondent for vacating the interim stay order passed by this Court earlier, both sides argued on the question of maintainability of the revision petition and I have already held that the revision petition is not maintainable and accordingly, subject to aforesaid observation and directions, revision petition is dismissed.
Interim stay orders passed by this Court earlier are vacated. I make no order as to costs.
