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Judgment
Petitioners with substantive appointment as Assistant Surgeons in the Health Department of the Jammu and Kashmir Govt. have undergone
postgraduate courses in surgery in SKIMS Soura, respondent/Institute. On completion of the course, petitioners were selected as Senior
Residents in the Institute on tenure basis for a period of two years initially in May, 1995 and thereafter were given extension. On completion of the
extended term they have been relieved on 01011999 under the orders of the Director of the Institute. This relieving order No. ACAD/184 of
1999 dated 111999, has been challenged by petitioners in a suit presented before the District Judge, Srinagar which suit is allotted and assigned to
the court of Munsiff, Sub Registrar, Srinagar, for trial.
The trial court on an interim application moved with the main suit, restrained respondents from giving effect to the above said relieving order of
the Director SKIMS and against this restraint order of 01011999, appeal was preferred before the District Judge, Srinagar which came to be
assigned to the Addl. District Judge, Srinagar. The Addl. District Judge, after hearing the parties and on examination of the matter, came to the
conclusion that the impugned order was in violation of expressed provisions of the Sub Rule 3 of Section 80 CPC, in so far as no opportunity of
hearing was given to the respondents in the matter. This order of 2331999 is challenged in the revision before this court.
Consideration is given to the submission/of the counsel for the parties. Available record is examined.
Counsel for the petitioner contends that Director, Registrar Academic, Assistant Registrar and HODs of various disciplines of respondent
Institute, are not public officers, therefore, the provision of notice provided for by Section 80 CPC is not applicable to the case. The appellate
court has erred in applying Section 80 CPC to the issue of interlocutory relief granted by the trial court of MunsiffSub Registrar, Srinagar. On
merits the counsel submits that the petitioners after completing the postgraduation in the Institute, in terms of their selection to the post graduation
course and thereafter on conditions of their selection to Senior Residentship required to serve the Institute for a period of seven years and
therefore, they cannot be relieved before the period is over.
The counsel for respondents supports the impugned judgment of the appellate court. The counsel contends that the respondents being public
officers within the meaning of Section 80 CPC, the provisions of Section 80 CPC are applicable to the case. The interlocutory order of the trial
court having come into existence in contravention of express provision of Sub Section 3 of Section 80 CPC, therefore, the appellate court
intervened to correct the flaw by remanding this case to the trial court for fresh proceedings and orders, after setting aside the order impugned in
appeal. The respondents counsel also submit that the interlocutory order in the appeal encompassed by order 39 CPC has been passed in violation
of Rule 3 of Order 39 CPC in so far as neither the notice was served on them nor the reasons for dispensing with the notice were recorded. Even
the statutory directions consequent on passing of exparte order without notice covered by clause (a) of Rule 3 of Order 39 CPC have not been
complied. On merits the requirement of law as applicable to the facts of the case have not been followed.
It merits to be made clear that in exercise of jurisdictional powers under Section 115 of CPC, High Court is not to correct the errothers of fact
of law unless the said error is relatable to the jurisdiction of the court seized of the trial of the suit.
It would be profitable to refer to M/S D.L.F, Housing and Construction Co. (P) Ltd's case, (AIR 1971 SC 2324).
In para 8, Hon'ble DUA, T, speaking for the Court observed:
.... while exercising the jurisdiction under Section 115, it is not competent for the High Court to correct errothers of fact however gross or even
errothers of law unless the said errothers have relation to the jurisdiction of the Court to try the disputes itself..............................
The words ""illegally"" and ""with material irregularity"" as used in the clause do not cover either errothers of fact or of law, they do not refer to the
decision arrived at but merely to the manner in which it is reached. The errothers contemplated by this clause may, in our view, relate either to
breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errothers either of fact or of law,
after the prescribed formalities have been complied with.....
The revision cannot be treated as if it is an appeal. The limits of jurisdiction under Section 115 of C.P.C have to be appreciated. The revisional
jurisdiction as such is not meant to meet a situation where the conclusion of law and fact unrelated to the question of jurisdiction, are addressed.
A conclusion or decision arrived at in the proper exercise of jurisdiction which is erroneous in law or fact is not a ground for revision.
An erroneous construction of a section of a statute without any thing more furnishes no ground for revision, (See AIR 1996 SC 1621, AIR
1973 SC 1336, AIR 1965 SC 553, AIR 1949 PC 156, AIR 1937 Mad.36(DB)).
12.The contention whether Section 80 CPC is attracted to this case and therefore, Section 80CPC notice, as also compliance with Sub Clause 3
of Section 80 CPC in matter of interlocutory order is a precondition for exercise of powers in the matter of passing of exparte injunction of
interlocutory orders, can hardly be decided in the revisional jurisdiction when a finding on the question has to be based on record, documents, facts
and circumstances of the case. Though on one side, it is stated that the SKNM is a Trust in so far as it owes its origin to SKIMS Trust and
therefore the office bearers of the Trust cannot be public officers. On the otherside, it is stated that SKIMS has been established by the
Government and the Institute has come into being as a result of the agreement between the Trust and the Government way back in December,
1980. The whole institute and its hospitals are run by the Government. The Director and other functionaries including the respondents with staff are
appointed by the Government. It has been accorded status of University by the Government. The finances as also the budget which runs in figures
of 40 crores annually is sanctioned by the Government. It is stated that the respondents are public officers within the meaning of Clause 17 of
Section 2 of the C.P.C. The nature of duty rendered by the respondents, the source of Pay and renumerations paid to them, all go to indicate that
they are public officers. All these issues can be gone into and determined on proper inquiry on evidence. This question is, therefore, left open for
determination by the proper forum in appropriate proceedings. Therefore, without having to pronounce on the impugned order of the appellate
court of remanding the matter for fresh determination qua issuance of issues or otherwise of interlocutory injunction matter, the matter can be
examined within the conspectus of law other than provisions of Section 80 CPC.
13.The counsel for the parties are agreed that the order dated 01011993 of the trial court impugned in Appeal and the order of the appellate court
dated 2331993 are covered by Order 39 CPC. The order of the trial court essentially is a restraint order in the nature of an injunction in so far as
by the order the relieving order of the petitioners is stayed and the petitioners are continued as Senior Residents in the Institute. It is passed in
exparte. The proviso added by the Amendment Act XI of 1983, w.e.f. 1581983 to Order 39 Rule 3, requires the Court, where it intends to grant
injunction without notice to the opposite party, ""to record the reasons for its opinion, that the object of granting the injunction would be defeated by
delay"". The exparte order of injunction without recorded reasons as envisaged by Rule 3, is void and without jurisdiction. The word 'injunction' in
this rule refers not merely to injunction proper, but also an order in the nature of the injunction which the court competent thereto is to pass under
the Rule 1 and2ofC.P.C.
The order impugned in appeal recorded by the trial court, Munsiff, Sub Registrar, Srinagar, reveals that the order no where mention that by
issuing a notice to otherside, the very object of the injunction would be defeated by delay, muchless, the reasons there for find place in the order.
The statement in the order ""that the matter thereto be of some importance which needs indulgence by this court. Accordingly, before appropriate
order is passed in this application, the requirement of notice under Order 39 Rule 2 and 3 CPC is dispensed with and till the nonapplicants cause
their appearance and further file their objections, they are temporarily restrained from giving any effect to order bearing No. ACAD/184 of 1999
dated 1st. Jan. 1999"", can not in any manner construed as recorded reasons for the opinion of the trial court that the object of injunction would be
defeated by delay in case notice is sent to otherside. Where law prescribes the manner and mode in which the court has to exercise its jurisdiction
and court acts in disregard to those provisions, it acts illegally or irregularly in exercise of its jurisdiction. The order in absence of reasons is
obviously void and without jurisdiction. In such matters, the rule is notice and exception is dispensing with notice after complying with the
mandatory provisions of the proviso to Rule 3 of Order 39 CPC. The order interalia require recording of reasons for dispensing with the notice
and that too with a view not to allow the object of injunction to be defeated by delay.
15.The trial court has not exercised the discretion in the spirit and in compliance with the statute. This is patently material irregularity in procedure
amenable to revisional jurisdiction of the High Court.
Even, while passing the order, the trial court has not even placed on record any reason, whatsoever, which made the court to exercise the
jurisdiction and issue the order placing an embargo on the petitioners being relieved from the Institute and to their continuance in the Institute. The
order though giving an impression of an innocuous order, is in fact an order in the nature of an injunction which places an exparte restraint on the
Institute and practically gives relief sought in the suit to petitioners. In such circumstances, it was incumbent rather the trial court was under a legal
duty not only to record the reasons for according such an exparte order, but also to keep in mind the basic canons of prima facie case, balance of
convenience and irreperable injury. Even, in absence of otherside, the trial court has to reach the conclusion that after reckoning with the above
guiding principles, the petitioners merit the exparte injunction order. This trial court has omitted to do. The trial court has failed to address itself on
all aspects of the case germane to the question of issuance of the order in question. The order appears to have been passed in routine on a mere
asking. The order of Munsiff Sub Registrar, Srinagar is legally infirm and suffers from jurisdictional error. It is thoroughly vitiated.
It should be seen that the above order of the trial court is thoroughly vitiated by patent illegality and material irregularity attracting the revisional
powers of the High Court, Irrespective and independently of the order passed by the Addl. District Judge in appeal. The setting aside of the
impugned order by the appellate court is found correct, for the reasons, as recorded above.
18.In the result, the setting aside of the order dated 01011999 of the Sub Registrar, Srinagar by the impugned order dated 2331999 of the
appellate court is not interfered with. However, the trial court is directed to hear afresh the interim/temporary injunction matter after providing
parties or their counsel an effective and meaningful opportunity of placing their respective cases before the court as early as possible and in any
case within the period provided by the appellate court.
The revision is answered and the petition disposed of as above. Inform the trial court anoVappellate court of this decision within three days.