Ashok Tshering Lama vs Tshering Wangdi

A.M. Bhattacharjee, J.—The Civil Judge, Gangtok, on an application made to him for a temporary injunction by the petitioner-plaintiff in a suit pending in his Court, has issued notice to the respondent-defendant to show cause why such an injunction shall not be granted, but has declined to grant any ad interim injunction ex parte. The petitioner-plaintiff seeks to assail the order in this revisional proceeding.

The impugned order having been passed on 27-8-81 and the present revision having been tiled on 4-1-1982. The question that immediately arises is whether the revisional application is barred by limitation. Mr. U.P. Sharma, the learned Advocate for the petitioner, has however, pointed out that the petitioner filed an appeal against the impugned order before the District Judge on 11-8 1981 (11-9-81?) and the learned Judge has finally dismissed the appeal on 21-12-1981 on the ground that no such appeal lies. It is not disputed that if the time during which the appeal was pending before the District Court is excluded, the present revisional application would be perfectly within time. Mr. Sharma has urged that the petitioner preferred and prosecuted the appeal before the District Court in good faith and with due diligence and, therefore, the lime spent in pursuing the appeal is to be excluded in computing the period of limitation for this revision. It appears from the judgment of the learned District Judge that he finally dismissed the appeal, not on merits but, on the ground that an order refusing to grant an interim injunction ex parte arid directing notice of the application for injunction to be issued to the opposite party is not appealable and for this the learned Judge has relied on a single Judge decision of the Punjab High Court in Iqbal Singh and Others Vs. Chanan Singh and Others, . There are, however, direct decisions of a Division Bench of the Patna High Court in Shyam Behari Singh Vs. B. Biseswar Dayal Singh and Others, , of a Division Bench of the Calcutta High Court in Saraju Prashad Singh Vs. Gangaprosad Shah and Others, and also a single Judge decision of the Calcutta High Court in Motilal Singh v. Shib Chandra Bose 1971 CWN 233 to which the attention of the learned District Judge does not appear to have been drawn and which are to the effect that an appeal from such order lies and is perfectly maintainable. None of these authorities noted above are binding on the Courts in Sikkim and there appears to be no decision of this Court or of the Supreme Court on this point. Therefore, even assuming that the learned District Judge was right in following the Punjab decision referred to hereinabove and in holding the appeal to be not maintainable, the petitioner and/or his learned Counsel who filed the appeal before the District Court cannot be denied to have acted in good faith and with due diligence, if they acted under impression that such an appeal is maintainable, that being the view of at least two other High Courts, noted hereinabove. In fact Mr. Sharma who has appeared for the petitioner before me. has frankly confessed that the appeal was filed by him in the District Court on behalf of the petitioner under such impression as to its maintainability. This not having been disputed by Mr. Aggarwala, the learned Advocate for the Respondent, I need not wait for any affidavit to that effect either from the petitioner or from Mr. Sharma. Given good faith and due diligence for prosecuting such a civil proceeding between the same parties for the same relief, the time spent for the prosecution for such a proceeding should be excluded when such proceeding fails for bona fide mistake of law or procedure.

If it were necessary for me to decide the question, as to whether the appeal filed before the District Court was maintainable, I might have with respect, agreed with the view of the Patna and the Calcutta High Courts holding such appeal to be maintainable and dissented, with equal respect, from the Punjab decision and the decision of the Allahabad High Court which was followed in that Punjab case, holding against the maintainability of such an appeal. For I would have thought that all orders granting or refusing injunction, whether ex parte or after notice are ordered under either Rule 1 or Rule 2 of Order 39, except when injunctions are granted under inherent powers, and Rule 3 only seeks to regalate the mode in which the jurisdiction under Rules 1 and 2 is to be exercised. I would have thought that when a party makes an application for an immediate and ex parte order of injunction and the Court refuses to grant such an injunction and instead issues notice of the application to the opposite party, the order of refusal would be an order under Rule 1 or Rule 2, as the case may be and not under Rule 3 and hence appealable under Order 43, Rule 1(r). But since the order of the District Judge dismissing the appeal has not been challenged before me in any way and Mr. Sharma far from assailing that order, is very much relying thereon to justify exclusion of the period spent in that appeal, I need not go into that question in this revisional proceeding which is directed solely against the order of the Civil Judge refusing ad interim injunction ex parte and issuing notice to the respondent-defendant.

In the Sikkim Law of Limitation, there is, unlike Article 131 of the Indian Limitation Act. 1963, no period prescribed for any civil or criminal revisional application. But as has been pointed out by this Court in Kinzang Dahdul Vs. Ransul Kharga and Another, , O.P. Singhi and Others Vs. State of Sikkim and Another, and also in Jasman Rai Vs. Smt. Sonamaya Rai and Another, , such revisional application is to be filed within a period of 60 days, that being the period prescribed for first and second appeals under the Sikkim Law and is not to be entertained if filed thereafter, unless the petitioner can show sufficient cause for extension of the period or exclusion of any period. It is true that the decisions referred to above related to Criminal Revisions. But there being no period of limitation prescribed for either a civil or a criminal revision under the Sikkim Law of Limitation, the ratio of the said decisions would obviously apply to Civil Revisions also.

The Sikkim Law of Limitation, unlike the Indian Statute, does not expressly provide for extension of the period of limitation prescribed nor for the exclusion of any period in computing the period of limitation. In Durga Prasad v. Palden Lama AIR 1981 Sik 49, it has been observed by this Court that as the Indian Limitation Act in Sections 4 to 23 has made detailed provisions for extension of period of limitation and for exclusion of period in computing limitation and there being such clear and specific statutory provisions dealing with these matters, it has been the settled law that there is no inherent power to extend or exclude any period apart from or independently of such statutory provisions. But since the Sikkim Law does not specifically provide for any extension or exclusion it cannot be urged that the Courts in Sikkim do not have and cannot exercise their inherent power for good and sufficient cause and for the ends of justice in respect of the matters relating to extension or exclusion of time for the purpose of limitation. It has been further pointed out in Durga Prasad''s case (supra) that since the Indian Limitation Act not only prescribes the period of limitation but also conveys in Section 3 a clear mandate to dismiss an action initiated after the expiry of the prescribed period, subject to the detailed statutory provisions for extension or exclusion of time on various grounds, the extension for or exclusion of any further period in exercise of any inherent power and apart from those express provisions would clearly amount to acting against the legislative mandate conveyed in Section 3 and would amount to doing something forbidden by law and would thus be overriding the law. There can be no doubt that inherent powers cannot be exercised to do something expressly forbidden by law and, therefore, under the Indian Law of Limitation, there cannot be any scope for the Court to extend or exclude any period in the exercise of its inherent powers. But, as already noted, the Sikkim Law does not contain any provision for extension or exclusion of time nor any peremtory mandate as in Section 3 of the Indian Act, to dismiss any action initiated beyond the period prescribed. If there was such legislative mandate and also express provisions for extension and exclusion of time in the Sikkim Law of Limitation. it could have been urged that there was no inherent power in the Courts in Sikkim to grant extension or exclusion land that all matters relating to extension or exclusion were to be governed solely by those express provisions. It has accordingly been held in Durrga Prasad''s case AIR 1981 Sikkim 49 (supra) that the Sikkim Law of Limitation, not having contained any such mandate and not having expressly provided for extension or exclusion of time, the Courts in Sikkim have inherent powers to extend the period of limitation and to admit any action after the expiry of the period prescribed by extending the period or excluding certain period or by condoning the delay, for good and sufficient reasons. I have already hold that in view of the divergence of opinion among the different High Courts as to the maintain-ability of an appeal against an order refusing ad interim injunction ex parte, the appeal filed by the petitioner in the District Court cannot be regarded not to have been filed and prosecuted in good faith and with due diligence and, therefore, the period spent in prosecuting the appeal in the District Court should be excluded from consideration in determining the question of limitation and so excluded, the present revisional application cannot be regarded to have been barred by time.

As to whether an interlocutory order granting or refusing an ad interim or temporary injunction is a "case decided" within the meaning of Section 115 of C.P.C. to attract the revisional jurisdiction, Mr. Sharma is obviously on a very firm ground in view of the decision of the Supreme Court in Major S.S. Khanna Vs. Brig. F.J. Dillon, . where it has been held that the expression "case" does not mean the entire proceeding but includes part of the proceeding also and interlocutory orders, thereby setting at rest the point on which there was a sharp cleavage of opinion among the different High Courts. The Explanation added to Section 115, C.P.C. by the Amendment Act of 1976 has also sealed the matter by providing that the expression "any case which has been decided" includes any order made or any order deciding an issue, in the course of a suit or other proceeding." The CPC which was being followed in Sikkim before its incorporation in the Union of India was the Code of 1908 as it stood before such incorporation in 1975 and the same has become the law in force in Sikkim under the provisions of Article 371F(k) of the Constitution and it has accordingly been urged that the later Amendments of the Code would not apply to Sikkim. This question as to the applicability of post-1975 amendments of the CPC in Sikkim will have to be decided by this Court sooner or later, but I do not think that I need decide this question here in this proceeding because, as already noted, in view of the exposition of law by the Supreme Court in Major S.S. Khanna Vs. Brig. F.J. Dillon, the present revision is maintainable even without the aid of the Explanation added to Section 115. C.P.C. by the Amendment Act of 1976.

But though Mr. Sharma has successfully crossed both the two hurdles on the point of limitation and on the point as to whether the impugned order of the Civil Judge has amounted to "any case which has been decided", the larger and the most important question still remains as to whether the impugned order has involved any question of jurisdiction to attract the revisional jurisdiction u/s 115 C.P.C. As observed by the Privy Council in T. A. Bala Krishna Udayar''s case AIR 1917 PC 71 at p. 74, quoted with approval by the Supreme Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , "the Section applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it" and "is not directed to conclusions of law or fact in which the question of jurisdiction is not involved."

It cannot be said nor it has been seriously contended by Mr. Sharma, that in declining to issue ad interim injunction ex parte and directing notice to be issued to the opposite party for deciding the application for temporary injunction, the trial Court has either "exercised a jurisdiction not vested in it by law" or has "failed to exercise a jurisdiction so vested" within the meaning of Clauses (a) and (b) of Section 115 of the Code. The trial Court obviously had jurisdiction to issue or not to issue ad interim injunction ex parte and also to issue notice to the opposite Party before deciding the application for temporary injunction without issuing any ad interim injunction ex parte. The trial Court, therefore, in passing the impugned order has, without doubt, exercised a jurisdiction which had been vested in it by law and accordingly the revisional jurisdiction of this Court can be invoked vis-a-vis the impugned order only if the trial Court, in passing the impugned order, has acted "illegally" or "with material irregularity" within the meaning of Clause (c) Section 115, C.P.C.

Now if the Court decides a matter within its jurisdiction and in a manner or according to the procedure in or in accordance with which such jurisdiction is to be exercised but arrives at a decision erroneous in facts or in law, it does not act "illegally" or "with material irregularity", but only decides erroneously in the proper exercise of its jurisdiction. The expressions "illegally" and "with material irregularity" as used in Section 115(c), do not, as observed by the Supreme Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, and D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, , cover either errors of facts or of law and "do not refer to the decisions arrived at but merely to the manner in which they have been reached." The errors in order to amount to acting "illegally" or "with material irregularity" should relate either to breach of some provisions of law or to material defects of procedure affecting the ultimate decision and do not cover the errors either of fact or of law after the prescribed formalities have been complied with. In Dal Bahadur Lama v. Ratna Kumari Basnet (Civil Revision No. 1 of 1979, decided on 5th Dec. 1979) I had occasion to point out that this is the settled law in India for about a century since the decision of the Privy Council in Amir Hassan Khan v. Sheo Baksh Singh ( (1884) ILR 11 Cal 6 at p. 8) decided in 1884, where, construing the analogous provisions of Section 622 of the CPC of 1877, Sir Barnes Peacock observed as hereunder:

The question then is did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them and they did decide it. Whether they decided it rightly or wrongly they had jurisdiction to decide the case, and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material, irregularity

(Emphasis added).

Now whether one refers to this Amir Hassan Khan of 1884 (1884) ILR 11 Cal 6) (supra) or to the later Privy Council decision in T.A. Balkrishna Udayar of 1917 AIR 1917 PC 71 (supra) or to the much later Privy Council decision in AIR 1949 156 (Privy Council) , or one refers to the Supreme Court decision in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , or to the later decisions of the Supreme Court in Ittavira Mathai Vs. Varkey Varkey and Another, , in S. Rama Iyer of 1966 AIR 1966 SC 1434 or in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, , or to yet later decisions of the Supreme Court in Shri M.L. Sethi Vs. Shri R.P. Kapur, or in Sher Singh v. Joint Director , one will find the law to be the same and the position in law will appear to be firmly established that the mere fact that the decision is erroneous in fact or in law does not amount to illegal or irregular exercise of jurisdiction and that while exercising the revisional jurisdiction it is not competent to the High Court to correct errors of fact or law, however gross, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself.

Lord Denning has of course said ("Discipline of Law" Butterworths-1979 pp. 63-66), that "in one sense no tribunal ever has jurisdiction to decide a case wrongly on a point of law." The learned Lord has proceeded to observe that "when Parliament sets up a Tribunal, it does so in the belief that it will decide the case in accordance with law and not contrary to it. So much so that it may be said that it is a condition of the grant of jurisdiction that it should decide according to law." This, if true, might obliterate all distinctions between the jurisdiction of an Appellate Court and a Revisional Court as under the CPC prevailing in India. But, as I had already pointed out, the decisions of our pre-independence and post-independence apex Courts are consistently against this view. In AIR 1949 156 (Privy Council) , the Privy Council (at P. 158 construed the expression "illegally" to mean "in breach of some provisions of law" and the expression "with material irregularity" to mean "by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision." If there is no such "illegality" or "material irregularity" then the High Court observed the Privy Council "has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon the question of fact or law". These observations have beeen quoted with approval by the Supreme Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, .

This being the position in law, the trial Court having perfect jurisdiction to grant or not to grant ad interim injunction ex parte and to issue notice to the opposite party before deciding the application for temporary injunction, cannot be regarded to have exercised its jurisdiction either "illegally" or "with material irregularity", even assuming, though not deciding, that as urged by Mr. Sharma, on the materials on record, the trial Court should have granted ad interim injunction ex parte.

Mr. Sharma, has, however, contended that the trial Court must be taken to have acted with material irrgularity in refusing ad interim injunction ex parte as it did so without considering the documents filed by the petitioner-plaintiff in support of his case for such injunction and for this Mr. Sharma has placed strong reliance on a single Judge decision of the Delhi High Court in R.L. Sapra v. Om Prakash AIR 1981 Delhi 324. In that case, however, it appears (at p. 328, Paragraph 7) that the lower Court refused injunction "on the ground that particulars of the alleged fraud and misrepresentation were not pleaded", without considering the question, which must be considered by the Court in such a case, namely, whether the plaintiff has made out a prima facie case for injunction. In this case before me, however, the Civil Judge, as would appear from the impugned order, has considered the documents in his own way and has observed that "the documents produced by the plaintiff are not sufficient for issue of ex parte injunction" and that "the materials on record are not sufficient for the issue of ad interim injunction as prayed" and the trial Court has held further that "in the circumstances notices must issue to the other parties before granting injunction." Mr. Aggarwal, appearing for the respondent-defendant, has urged that none of the documents filed by the plaintiff-petitioner, being the copy of the proposal to allot the land (Annexure "C"). the copy of the Memo conveying sanction of a blueprint plan (Annexure "B") the copy of the receipt of Site Salami (Annexure "D"), can in any way be connected with the disputed land and that the documents do not go to show that any land was in fact allotted to the plaintiff-petitioner. Mr. Aggarwal has further urged that the other document, Annexure "A", filed by the plaintiff-petitioner, being a copy of his representation to the Chief Minister, would clearly go to show that the petitioner-plaintiff has not claimed that the land was duly allotted to him but has only claimed some preferential right to get the allotment, "if the Government desires to allot the site" and that the petitioner in that representation, which is dated 25-6-1981, has prayed to the Chief Minister "to grant" him the site. I need not, as I should not, express any opinion as to the weight to be attached and the inference to be drawn from these documents, as the learned Civil Judge is yet to decide and dispose of the application for temporary injunction on a consideration of these documents. But I would only say that if on a consideration of these documents, the Civil Judge did not feel inclined to depart from the usual and the ordinary procedure directed to be followed by Rule 3 of Order 39, of C.P.C. of issuing notice before granting any injunction, he cannot be said to have acted "illegally" or "with material irregularity" within the meaning of Section 115 of the Code of Civil Procedure, to attract the revisional jurisdiction of this Court and to justify interference in revision.

The revision, therefore, stands dismissed. The learned Civil Judge has already issued notice to the Defendant-respondent to show cause as to why temporary injunction shall not be granted. I have been told that the defendant-respondent has not yet filed his show cause. The defendant is directed to file his show cause within seven days from this order and the learned Civil Judge will make every effort to dispose of the application for temporary injunction as early as possible and within this month.