Bank of Baroda vs Mysore Chip Boards Ltd.

B. Jagannatha Hegde, J.—The facts, necessary for the disposal of these two Appeals, may be stated thus:-

The plaintiff-Bank filed a suit for recovery of a sum of Rs. 92,38,796-13 from the defendants. Along with the plaint, the plaintiff filed I.A. No. 4 under Order 39 Rules 1 and 2 CPC for grant of exparte order of temporary injunction restraining the first defendant-Company from alienating in any manner any of the moveable or Immovable properties including machinery, equipment, accessories, pending disposal of the case. The learned Civil Judge passed an expert order of temporary injunction as prayed for. After service of notice, the first defendant filed an application I.A. No. 6 for vacating the exparte order of temporary injunction granted in I.A. No. 4. The plaintiff immediately filed an application I.A. No. 7 for postponement of consideration of I.A. No. 6 till the first defendant filed the written statement. The learned trial Judge allowed I.A. No. 7 by his order dated 2-8-1988 and directed the first defendant to file its written statement by 4-8-1988 after holding that the first defendant can participate in the proceedings only if it files written statement. The first defendant, thereafter, filed an application I.A. No. 12 under Order 47 Rule 1 read with Section 151 of CPC praying for review of the order passed in I.A. No. 7 on 2-8-1988. The learned Civil Judge by his order dated 19th August 1988 reviewed and set aside the order passed by him earlier and allowed I.A. No. 12.

M.F.A.1910/1988:

M.F.A.1910/1988 is filed by the plaintiff-Bank challenging the order passed on I.A. No. 12 on 19-8-1988 passed by the 2nd Additional Civil Judge, Mysore in O.S. No. 408/1988, Shri K.S. Savanur, learned Advocate for the appellant (plaintiff-Bank) contends that there was no scope for review and the remedy available for the first defendant was to approach this Court in revision and not seeking review of the order passed in I.A. No. 7.

Shri T. Venkanna, learned Advocate for the respondent (defendant), on the other hand, contends that the application in I.A. No. 12 was perfectly in order and maintainable and the learned Civil Judge was justified in reviewing the order passed by him earlier on I.A. No. 7.

The learned trial Judge while disposing of I.A. No. 7 took note of the observation of the Law Commission to interpret Order 8 Rule 1 CPC as amended and came to be conclusion that the first defendant must file its written statement if it wants to participate in the proceedings. The portion of the Law Commission''s Report to which the learned trial Judge placed reliance reads thus:-

"In the absence of a proper pleading by the defendant, it is difficult to proceed with the suit, and in fact, the whole scheme of the Code postulates that there should be a written statement which constitutes the foundation of the defence, if the defendant chooses to participate in the proceedings. The time has now come when a written statement should be obligatory and we recommend accordingly."

The learned trial Judge, therefore, allowed I.A. No. 7 and directed the first defendant to file its written statement by 4-8-1988.

In I.A. No. 12, the learned trial Judge came to the conclusion that the first defendant can maintain an application for review of the order passed by him in I.A. No. 7 under Order 47 Rule 1 of CPC as he had committed an error apparent on the face of the record while disposing of I.A. No. 7 ignoring a binding Decision of the Supreme Court reported in ANANDJI HARIDAS & CO., PVT. LTD. v. ENGINEERING MAZDOOR SANGH AND ANR. A Division Bench of this Court in THE SELECTION COMMITTEE FOR ADMISSION TO MEDICAL AND DENTAL COLLEGES v. M.R. NAGRAJ came to the conclusion that overlooking a binding Decision of the Supreme Court constitutes a ground for review of order or Judgment of a Court. It is also pointed out in that Decision where without any elaborate argument one could point to the error and say, here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of an error apparent on the face of the record would be made out. In view of Article 141 of the Constitution, where there is a Decision of the Supreme Court bearing on a point and where the Court has taken a view on that point which is not consistent with the law laid down by the Supreme Court, it needs no elaborate argument to point to the error and there could reasonably be no two opinions entertained about such error. In Anandji Haridas''s case it has been clearly stated that as a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.

The learned trial Judge felt that he was not justified in looking into the report of the Law Commission while disposing of I.A. No. 7. Filing of a written statement is not a sine-qua-non for considering an application filed under Order 39 Rule 4 of CPC and the provisions of Order 8 Rule 1 also do not say that written statement should be filed by a defendant before he could participate in the proceedings. The learned trial Judge would not have allowed I.A. No. 7 but for his reference to the 14th Report of the Law Commission. The reference to the Law Commission Report by the learned trial Judge, when there is no ambiguity or vagueness in the provisions of Order 8 Rule 1 of CPC, was certainly not in accordance with the law laid down by the Supreme Court in Anandji Haridas''s case. Hence, it is clear that he overlooked a binding Decision of the Supreme Court while disposing of I.A. No. 7 on 2-8-1988.

Shri K.S. Savanur, learned Counsel, relying on a decision reported in MITHILESH KUMARI AND ANR. v. PREM BEHARI KHARI contends that it was permissible for the learned trial Judge to refer to the Law Commission Report as an external aid to interpret Order 8 Rule 1 of CPC and therefore, there was no error apparent on the face of the record. In para-19 of the said Judgment, the Supreme Court has stated thus:

"However, the Court has to interpret the language used in the Act, and when the language is clear and unambiguous it must be given effect to. Law Commission''s Reports may be referred to as external aid to construction of the provisions. It may be noted that the Act is a piece of prohibitory legislation and it prohibits benami transactions subject to stated exceptions and makes such transactions punishable and also prohibits the right to defences against recovery of benami transaction as defined in Section 2(a) of the Act. The Parliament has jurisdiction to pass a declaratory legislation. As a result of the provisions of the Act all properties held benami at the moment of the Act coming into force may be affected irrespective of their beginning, duration and origin. This will be so even if the legislation is not retrospective but only retroactive."

Shri Venkanna, learned Counsel on the other hand, contends that there is no departure from the principle enunciated in Anandaji Haridas''s case. He further points out that the Decision in the said case was not referred to in the later Decision and that in the Decision reported in Mithilesh Kumari''s case, it has not been specifically stated that the Law Commission Report may be referred to as external aid to construe the provisions even where there is no ambiguity.

The case reported in Mithilesh Kumari''s case was disposed of on 14-2-1989 and the learned trial Judge disposed of I.A. No. 7 on 2-8-1988 on which date he was bound to follow the Decision reported in Anandji Haridas''s case and he could not have overlooked it.

Shri Venkanna relies on the Decisions reported in SOMWAR GIR v. GOSWAMI MAYANAND GIR AND ANR., NATESA NAICKER v. SAMBANDA CHETTIAR and BIRENDRA BIKRAM SINGH v. RAJA BAJRANG BAHADUR SINGH to contend that an order of the lower Court cannot be revised in appeal merely because it came to an erroneous conclusion while granting review if the original order which has been reviewed is demonstrably wrong. In the instant case, there was no justification for the learned trial Judge to hold that the first defendant cannot participate in the proceedings without filing its written statement. Therefore, I do not find any justification to interfere with the order passed in I.A. No. 12.

For the reasons aforesaid M.F.A 1910/1988 is liable to be dismissed and is accordingly dismissed. No costs.

M.F.A.2205/1968:

M.F.A.2205/1988 is filed by the first defendant against the expert order of temporary injunction passed in I.A. No. 4 on 23-7-1988 by the II Additional Civil Judge, Mysore, in O.S. No. 408/1988.

Shri K.S. Savanur, learned Counsel for the respondent (plaintiff) contends that -the appeal is not maintainable and that the remedy available to the first defendant is to file an application before the trial Court itself under Order 39 Rule 4 of CPC in the first instance.

Shri T. Venkanna, learned Counsel for the appellant (1st defendant) points out that the trial Court passed the expert order of interim injunction directing the first defendant not to alienate the properties as prayed for in I.A. No. 4 until further orders without complying the mandatory provisions contained in Rule 3 of Order 39 of CPC, Rule 3 of Order 39 of CPC reads as follows:

"3. The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction, would be defeated by delay, and require the applicant -

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with -

(i) a copy of the affidavit filed in support of the application

(ii) a copy of plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent."

The trial Court has really committed an error in not following the procedure laid down in Rule 3 of Order 39 CPC. But, the dispute is as to the remedy available to the party affected by such an order.

Shri Savanur relying on a Decision rendered by a Division Bench of this Court in PARIJATHA AND ANR. v. KAMALAKSHA NAYAK AND ORS. contends that no appeal lies against the expert interim order of injunction granted under Rules 1 and 2 of Order 39 CPC. Divergent opinions had been expressed by some Hon''ble Judges of this Court in some prior Decisions as to whether a right of appeal against such an order exists or not. The Division Bench, after considering all those Decisions and also the Decision of the Full Bench of the Allahabad High Court in ZILLA PARISHAD, BUDAUN v. BRAHMA RISHI SHARMA and some other decisions of other High Courts, came to the conclusion that Order 43 Rule 1(r) of CPC does not allow the filing of an appeal from an expert interim order of temporary injunction granted under Rule 1 or 2 of Order 39, but the remedy of the aggrieved person is to move the trial Court under Rule 4 of Order 39 of the Code in the first instance. The Division Bench further held that even a stranger to the suit or proceeding can maintain such an application. The prior Decisions rendered by Single Judges taking a view in favour of the permissibility of an appeal against an interim expert order of temporary injunction were overruled. The learned Judges of the Division Bench were unable to agree with the reasonings of the Full Bench of the Allahabad High Court.

Shri Venkanna, learned Counsel, contends that there are Full Bench Decisions of three High Courts in favour of his proposition. They are - (1) Zila Parishad, Budaun and Others Vs. Brahma Rishi Sharma, (2) Astral Traders Vs. Haji Mohammad Shaban Dar and Others, and (3) Akmal Ali and Others etc. Vs. State of Assam and Others, He also relies on three Division Bench Rulings of Gujarath, Andhra Pradesh and Allahabad High Courts reported in Patel Jasmat Sangaji Padalia Vs. Gujarat Electricity Board, Baroda and Others, E. Managamma Vs. A. Muniswamy Naidu, and Road Flying Carrier and another Vs. The General electric company of India Ltd., respectively. Shri Venkanna also points out that there are four Rulings of Single Judges of other High Courts, in favour of his proposition, reported in SK. Jusa Vs. Ganpat Dagdu Gire and Others, V.T. Thomas alias Toms and Others Vs. Malayala Manorama Company Limited, Cochin, and A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, . It is also stated by him that there are no Full Bench Decisions of other High Courts against the proposition that an appeal is maintainable against an exparte order of injunction passed under Order 39 Rules 1 and 2 of CPC. He therefore urges that I should take steps to refer the matter to a Full Bench for reconsideration of the Decision rendered by the Division Bench of this Court in Parijatha and Another Vs. Kamalaksha Nayak and Others,

Shri Savanur, learned Counsel, on the other hand, contends that the Decision arrived at by the Division Bench of this Court in Parijatha and Another Vs. Kamalaksha Nayak and Others, is correct and that the said decision is being followed in our State as a binding precedent for a considerable length of time and therefore, there is no need for taking steps for its reconsideration. Shri Venkanna, relying on a decision reported in LALA SHRI BHAGWAN AND ANR. v. RAM CHAND AND ANR. contends that if a Single Judge of High Court is inclined to differ from, a view taken by an earlier Division Bench or a Single Judge of the Court, he should refer the matter to a larger Bench or direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench. A Single Judge of the High Court is ordinarily bound to accept as correct the Judgments of Division Benches and of the Full Benches of this Court and of the Supreme Court as it is necessary to secure uniformity and certainty in law. I do not find any reason to differ from the view already taken by the Division Bench of this Court in Parijatha and Another Vs. Kamalaksha Nayak and Others, even though the other High Courts might have differed from it. Further, since 1982, the Decision in Parijatha and Another Vs. Kamalaksha Nayak and Others, is being followed by all the Courts on this State.

It is then contended by Shri Venkanna, learned Counsel for the appellant, that the plaintiff-Bank had made a reference to the Board for Industrial and Financial Reconstruction, New Delhi, on 29-3-1988 u/s 15 of the Sick Industrial Companies (Special Provisions) Act, 1985, that the suit is filed only on 22-7-1988 and that therefore by virtue of Sections 22 and 26 of the Sick industrial Companies (Special Provisions) Act 1985, the plaintiff-Bank is debarred from taking up any proceedings of distress against the first defendant-Company and that there is a bar of jurisdiction of the Civil Court u/s 26 of the said Act. He has also filed a Memo on 1-4-1991 along with the copy of the order dated 9-1 -1991 of the Board for Industrial and Financial Reconstruction, New Delhi, which, according to him, has declared the first defendant as a sick industry. Shri Savanur has filed objections to the said Memo dated 1 -4-1991. It is the contention of Shri Venkanna that in view of these developments, this Court should hold, that there is initial lack of jurisdiction in the trial Court in entertaining the suit and granting the exparte order of temporary injunction, by exercising the power under Articles 226 and 227 of the Constitution, even if this Court-comes to the conclusion that the appeal is held to be maintainable.

It is not in dispute that I.A. No. 6 filed by the first defendant-Company before the trial Court under Rule 4 of Order 39 CPC is pending and that all the grounds now raised by Shri Venkanna available under the Sick Industrial Companies (Special Provisions) Act 1985 have been raised by him in the counter filed thereto. Since I have already upheld the order passed by the trial Court in I.A.12, the trial Court is now free to consider I.A.6 in accordance with law and these grounds could be urged before it and therefore, I do not find it necessary to express any opinion as regards those points or to exercise the powers under Article 226 or 227 of the Constitution of India.

M.F.A.2205/1988 is therefore dismissed as not maintainable. No costs.

The expert order of temporary injunction passed by the trial Court was modified by this Court on 16-12-1988 after hearing the parties. The exparte order as modified by this Court on 16-12-1988 shall continue to be in force till the disposal of I.A. No. 6. It is open to the trial Court to discharge, vary or set aside the expert order of injunction as modified by this Court while disposing of I.A. No. 6 in accordance with law after hearing the parties. The trial Court is directed to dispose of I.A. No. 6 within two months from the date of receipt of this order.