Hemendralal Roy vs Indo Swiss Trading Co., Ltd.

Chatterji, J.—This is an appeal by de-fendants 1 to 4 from an order passed by the learned Additional Subordinate, Judge of Hazaribagh in Title suit No. 2 of 1944 granting an injunction restraining them from tak-ing possession of the disputed property. The application in revision which is also filed by them is directed against an order allowing amendment of the plaint. Defendants l to 3 are brothers, who, will be referred to hereinafter as the Roys. In 1928 they formed a partnership called Lalji and Co., (defendant 4). In the same year Lalji & Co. applied to the Provincial Government for a license under the Electricity Act (9 of 1910) to, supply electrical energy to Giridih town and the neighbourhood. They intimated to the Government that they wanted to float a company, and after that was done, the business would be transferred to the company. On 9th July 1929. the Government granted, a license to Lalji & Co. Then a company was floated called the Giridih Electric Supply Corpora, tion which was registered on 6th September 1929. This Corporation is defendant 7 and will be referred to hereinafter as the company.. On 14th September 1929 two agreements were entered into between Lalji & Co. and the company to the effect that Lalji & Co. would be the Managing Agents of the company and the company would conduct the business in their name during the period previous to the transfer of the license. In due course a powerhouse was erected and the necessary plant, machinery etc., were installed ; and the company began to supply electrical energy to Giridih town and the neighbourhood from about 14th March 1931. In November 1932 Lalji & Co., applied to the Government for permission to transfer the business to the company. Permission was, however, refused in 1933.

On 17th July 1984 the Roys were adjudicated insolvent by the Calcutta High Court on the application of certain creditors. In the list of assets filed by the Roys in the insolvency proceeding, they claimed the plant, machinery etc., that is to say, the entire electrical undertaking, valued at Rs. 2,41,898-13-8 to be theirs. The Official Assignee appointed in the insolvency proceeding could not be put in actual possession of the undertaking by reason of the provisions of the Electricity Act. He appointed N. L. Roy, defendant 3, to Carry on the electrical undertaking at Giridih on his behalf. On 20th August 1935 this Court passed an order winding up:the company, and on 6th September 1935 an Official Liquidator was appointed. This gentleman desired to take possession of the assets of the company, but he was told by Lalji & Co., that the undertaking belonged to them to whom the license had been granted and as they had been adjudged insolvents by the Calcutta High Court, the undertaking was in the possession of the Official Assignee of that Court. At the instance of the creditors and the Official Liquidator, the Official Assignee of the Calcutta High Court made enquiries as to whether the electrical undertaking at Giridih really belonged to the company or to the insolvents. The Official Assignee, being of opinion that the undertaking really belonged to the company, gave up all claim to the electrical undertaking in March 1938. The Official Liquidator thereupon pressed the Roys to give up possession to him of the assets of the company. They refused to do so, whereupon the Official Liquidator filed an application u/s 185, Companies Act, in this Court. That application was allowed by Wort J. on 5th January 1940. In pursuance of his order, the Official Liquidator took possession of the entire undertaking on 12th January 1940. Against the decision of Wort J. the Roys preferred a Letters Patent appeal which was allowed on 9 th May 1940, by Harries C. J. and Manohar Lall J. on the ground that the Roys being in possession of the undertaking not as officers or agents of the company but in assertion of their own right, the application u/s 185, Companies Act, was not maintainable, and possession could only be obtained from them by means of a suit. It was, however, found that "the company were prima facie entitled to the moveable properties which had been acquired by the corporation, though they were not entitled to posses, sion of the land upon which the power-house stood."

The Roys then applied for restitution, but their application was rejected by Agarwala J. on 16th August 1940. Against his decision the Roys preferred a Letters Patent appeal which was eventually allowed on 26th October 1943, in these terms:

In the oircumstances, restitution must be allowed, but subject to this condition, which is necessary to impose for the ends of justice, that delivery of possession to the appellants will be postponed for three months from this date to enable the respondent to bring a suit, if so advised, and obtain such relief as may be open to him in law.

During the pendency of the appeal in the restitution proceedings the entire undertaking was sold by the Official Liquidator under the order of the company Judge to the present plaintiff on 16th August 1941 for Rs. 91,000, and the plaintiff was put in possession on 8th December 1941. In the meantime the plaintiff obtained sanction from the Provincial Government u/s 28 (1), Electricity Act to carry on the undertaking. The plaintiff was impleaded as a respondent in the said appeal. In consequence of the order passed in the last-mentioned appeal allowing restitution, the plaintiff instituted the present Title suit No. 2 of 1944 alleging that the disputed property, that is, the entire electrical undertaking together with the land on which the power-house stands belonged to the company and by virtue of the purchase from the Official Liquidator, it vested in the plaintiff. The plaintiff also filed an application for temporary injunc tion to restrain defendants 1 to 4 from taking possession of the disputed property. The learned Subordinate Judge by his order dated 25th July 1944 granted a temporary injunction, as prayed for. It is against this order that the miscellaneous appeal is directed.

The plaintiff further filed an application for amendment of the plaint. In the original plaint it was alleged that the company had a lease for 99 years from defendants 1 to 4 in respect of the land and that lease vested in the plaintiff by virtue of the transfer by the Official Liquidator. In the petition for amend ment, it was stated that if the lease for 99 years was not proved, there was in any case a verbal lease for ''one year from 1st January 1980 after which there was holding over, and that in the alternative, there was an irrevo. cable license. Notwithstanding the objection of defendants 1 to 4, the Subordinate Judge by his order dated 14th February 1945 allowed amendment of the plaint as prayed for. The civil revision is directed against this order. I shall first deal with the appeal. The learned Subordinate Judge apparently passed the order u/s 151, Civil P. C. But it seems to me that the Court cannot invoke its in-herent power u/s 151 for the purpose of granting an injunction. Specific provisions for injunction are made in Order 39, Rules l and 2. Section 94 of the Code lays down:

In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed.... (o) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold.

The words "if it is so prescribed" indicate that a temporary injunction can be granted if there is any provision for it in the Code. In other words, such injunction cannot be granted except under the specific provisions made for it in the Code. Consequently, is not open to a Court to grant injunction, in . exercise of its inherent power u/s 161. Mr. S. N. Bose on behalf of the respondent relies on the case in Dhaneshwar Nath Tewari Vs. Ghanshyam Dhar Misra, in which it was held that, apart from the provisions of Order 89, Civil P. C, the Court has inherent jurisdiction to pass an order of temporary injunction providing for the necessary protection and security of the property which is the subject-matter of the litigation. In that case injunction was granted during the pendency of an application for leave to sue as pauper. Order 39 provides for injunction in a suit. So the question arose whether the Court could grant injunction when there was no suit yet. It was held that injunction could be granted in exercise of the Court''s inherent power u/s 151. With all respect, I am unable to agree that where the case cannot be brought under Order 39, the Court has still inherent power to grant injunction in exercise of its inherent power u/s 151. The Court will then be acting against the express provision of Section 94 of the Code. It is contended by Mr. S. N. Bose that even if the present case does not fall under Rule 1 of Order 39, it certainly falls under Rule 2, which provides that injunction may be granted in a suit for restraining the defendant from committing a breach of contract or other injury of any kind. It is said that in the present case the defendants are going to commit "other injury of any kind." The question, therefore, arises whether the defendants are really going to commit any injury. The position is this. The Official Liquidator appointed by this Court took possession of the disputed property on 12th January 1940, by virtue of the erroneous order of Wort J., dated 5th January 1940, which was set aside on Letters Patent appeal on 9th May 1940. The Roys then applied for restitution which was eventually allowed by this Court on 26th August 1943, in Letters Patent appeal. They are entitled to reap the benefit of the order for restitution which was eventually passed in their favour. How, then, can it be said that if they take possession by enforcing that order by which the plaintiff is bound, they will commit injury to the plain, tiff? The plaintiff is in possession by virtue of an erroneous order, and it does not lie in the plaintiff''s mouth to say that the defendants are going to commit injury by enforcing the order for restitution. It is true that in the application for injunction it was not specifically prayed that the defendants should be prevented from executing or enforcing the order; but that is the practical effect of the injunction asked for.

The learned Subordinate Judge was apparently influenced by the terms of the order fol restitution passed by this Court in the Letters Patent appeal, in so far as it allowed three months'' time to the plaintiff to institute a suit, delivery of possession being postponed for that period. But it will be noticed that this Court was careful to say that the plaintiff might bring a suit, if so advised, and obtain such relief as may be open to him in law." Certainly this did not authorize the plaintiff to ask for a relief which was not open to him in law. In my opinion, the learned Subordinate Judge was not justified in granting the injunction prayed for. It is argued by Mr. Bose that the balance of convenience lies entirely in favour of the plaintiff. But the question of balance of convenience can arise only if it is lawful for the plaintiff to ask for an injunction. Prom what I have already said, it was certainly not lawful for the plaintiff to ask for an injunction the effect of which would be to prevent the defendants from reaping the benefit of the order of the Court by which the plaintiff is bound. It may be mentioned here that in the plaint the plaintiff does not challenge the order for restitution. We are informed that the plaintiff has filed an application for leave to appeal to the Privy Council from that order, but that is a matter with which we are not concerned at present. The appeal must therefore be allowed and the injunction granted by the Court below must be discharged. There will We no order for costs.

As regards the civil revision, it has not been shown to us that the learned Subordinate Judge committed any error of jurisdiction in allowing amendment of the plaint. The civil revision must therefore be dismissed, but there will be no order for costs.

Sinha, J.

I agree.