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Judgment
J.K. Ranka, J—The appellant has approached this court by filing this appeal under Order 43 Rule (1)(r) CPC feeling aggrieved by an ad interim order passed by the trial court in a suit for declaration and injunction.
The appellant-plaintiff in the suit has sought a declaration to the effect that clause No. 5-L incorporated in Tender No. F.02(156)/RMSC/ Procurement/Drugs/NIB-07/2015/945 dated 24.6.2015, be declared as illegal and further that defendant-respondent be restrained by a decree of permanent injunction to consider the tender submitted by the plaintiff without the incorporation of such clause No. 5-L in release order for supply of drugs, if the plaintiff qualifies in the tender on other parameters.
Along with the suit, the plaintiff also preferred temporary injunction application, and after service the defendant appeared in the suit as well as in the temporary injunction application and sought time to submit reply of the same, upon which the plaintiff-appellant prayed to issue ad interim order, to which the defendant-respondent objected and trial court after hearing both the parties, was not inclined to issue any temporary ad interim order of injunction, which is assailed before this court.
Learned counsel for the appellant submitted that the trial court committed a manifest error in not issuing an ad interim order of injunction, and the order is arbitrary, perverse and bad in law. He submits that by not issuing ad interim orders, the trial court has virtually rejected the whole suit of the plaintiff, which is legally impermissible. He further contends that the pleadings of the plaintiff was uncontroverted and there was no reason to disbelieve the plaintiff, and the plaintiff who was a regular supplier of drugs/medicines was entitled to participate in the tender without incorporation of the clause referred to hereinbefore. He further submits that all the necessary ingredients of prima facie case, balance of convenience and irreparable loss, were in favour of the plaintiff and hence, the impugned order deserves to be quashed and set aside. In support of his contentions, leaned counsel for the appellant relied upon State of Uttaranchal & Another v. M/s. Poddar Pharmaceuticals P. Ltd. & Others Petition(s) for SLP (Civil) No. 16026/2003 decided on 24.5.2003, M/s. Poddar Pharmaceutical Ltd. & Others v. State of Uttaranchal & Others Writ Petition No. 427 (M/B) of 2002 decided on 24.5.2003, and Rohit Drugs and Others Vs. State and Others, AIR 2002 J&K 127 : (2003) 2 JKJ 535 .
Per contra the learned counsel for the defendant-respondent has vehemently opposed the contentions of the learned counsel for the plaintiff-appellant. He filed a detailed written submission that the appeal is ex facie not maintainable as ad interim order passed in temporary injunction applications are not appealable under Order 43 CPC. Further, he submits that the plaintiff-appellant is not entitled to participate in the tender without the incorporation of clause 5-L for the reasons that such clause is incorporated for the benefit of public health, to maintain quality and to come upto the international standards and is common to all bidders. He further contends that there was no perversity, arbitrariness or capriciousness in the impugned order, and the relief sought at the ad interim stage by the plaintiff-appellant, if granted, would be virtually decreeing the whole suit which is legally impermissible. He further contends that none of the requisite ingredients for grant of injunction are in favour of the plaintiff-appellant. He also brought to the knowledge of this court by filing an additional affidavit that the drugs being supplied by the appellant has been held to be "not of standard quality" by various testing house/laboratories issued by various companies, and in this regard placed on record Ann.R/1 (page 6 to 14), and contended that the requirement of incorporating the said clause is in accordance with the guidelines and is for the benefit of the public good, and by no stretch of imagination can be said to be in any case against the public policies or detrimental to the public. In support of his contentions he relied upon Bhaskar Lal Sharma and Another Vs. Monica and Others, (2014) AIRSCW 1586 : (2014) CriLJ 1848 : (2014) 3 JT 101 : (2014) 2 SCALE 394 : (2014) 3 SCC 383 , Citadel Fine Pharmaceuticals Vs. Ramaniyam Real Estates P. Ltd. and Another, (2011) 6 CTC 112 : (2011) 9 JT 265 : (2011) 4 RCR(Civil) 894 : (2011) 8 SCALE 301 : (2011) AIRSCW 5209 , Arun Lal and Others Vs. Union of India (UOI) and Others, AIR 2011 SC 506 : (2010) 12 SCALE 572 : (2010) 14 SCC 384 , Tamilnad Mercantile Bank Share Holders Welfare Association Vs. S.C. Sekar and Others, (2010) 1 CompLJ 357 : (2008) 13 JT 49 : (2008) 16 SCALE 205 : (2009) 2 SCC 784 , K.D. Sharma Vs. Steel Authority of India Ltd. and Others, (2008) 4 BC 557 : (2008) 8 JT 57 : (2008) 10 SCALE 227 : (2008) 12 SCC 481 , Global Energy Ltd. & Another v. M/s. Adani Exports Ltd. & Others Case No. Appeal (Civil) 2988/2005 decided on 3.5.2005, Bank of Maharashtra Vs. Race Shiping and Transport Co. Pvt. Ltd. and another, AIR 1995 SC 1368 : (1995) 83 CompCas 478 : (1995) 3 JT 175 : (1995) 1 SCALE 785 : (1995) 3 SCC 257 : (1995) 1 UJ 459 , State of Uttar Pradesh and Others Vs. Ram Sukhi Devi, AIR 2005 SC 284 : (2005) 1 ESC 75 : (2004) 8 JT 264 : (2005) 1 LLJ 505 : (2004) 8 SCALE 536 : (2005) 9 SCC 733 : (2005) SCC(L&S) 560 : (2005) 1 SLJ 349 : (2004) AIRSCW 6955 , Tata Cellular Vs. Union of India, AIR 1996 SC 11 : AIR 1994 SC 11 : (1994) 4 JT 532 : (1994) 6 SCC 651 : (1994) 2 SCR 122 Supp , D.R. Chawla & Others v. Municipal Corporation of Delhi (1993) 3 SCC 162 , Association of Industries Madhya Pradesh & Another v. State of M.P. & Another W.P. No. 7049/2013 decided on 26.7.2013, Surendra Singh v. State of Rajasthan & Another S.B. Civil W.P. No. 10362/2010 decided on 9.11.2010 at Jodhpur, Vijay Singh v. State of Rajasthan & Others S.B. Civil W.P. No. 1031/2009 decided on 9.2.2009 at Jodhpur, Spm Drugs (P) Ltd. v. The State of Maharashtra W.P. No. 7823/2009 decided on 14.12.2009, Rajendraprasad R. Singh Vs. The Municipal Corpn. of Gr. Bombay, AIR 2003 Bom 392 : (2003) 3 ALLMR 589 : (2004) 1 BomCR 300 : (2003) 3 MhLj 757 , Association of Drugs and Pharmaceuticals, Manufacturers, A.P. Vs. A.P. Health, Medical, Housing and Infrastructure Development Corporation, Hyd. and Another, (2002) 2 ALD 609 : (2002) 3 ALT 593 .
Though extensive arguments were advanced by learned counsel for the parties on merits even, but without going into the merits of the matter and without adverting to the material on record, as it may ultimately affect the pending suit as well as temporary injunction application, the matter is being decided on the preliminary issue by this court.
Heard the counsel for the parties, and after giving anxious consideration on the material available on record, this court is of the opinion that the instant appeal deserves to be dismissed.
An order passed upon a temporary injunction application whether interim or ad interim in nature, is an order which could be assailed by preferring an appeal under Order 43 Rule (1) CPC, and such legal position is well settled but the fact remains that even to obtain an ad interim order a party needs to qualify all the necessary parameters for grant of refusal of injunctions.
In the instant case, the trial court, after a detailed assessment, has concluded that clause No. 5-L regarding WHO-GMP certification incorporated in the tender was for the benefit of the health of public at large and there was no legal infirmity in such incorporation. The trial court further observed that when public and private interests are pitted against each other, public interest should be given primacy and supremacy, and as such the ad interim order as claimed was required to be granted. The trial court was of the further view that grant of ad interim injunction, as prayed for virtually meant decreeing the suit which was legally impermissible. The trial court was of the further view that ad interim injunction sought was mandatory in nature, which in the facts and circumstances of the case was legally untenable. The trial court has also observed that the defendant-respondent, for the benefit of health of public at large and to maintain quality, wanted drugs/medicines of a high standard and such decision could not be faulted and declined to issue any ad interim temporary injunction order, as prayed for.
This court fully concur with the reasoning assigned by the trial court in the impugned order and finds no perversity, arbitrariness or capriciousness in the same. The trial court, after a cumulative assessment of all the available material, in the light of settled legal proposition, has rightly concluded that when private and public interests are pitted against each other, public interest ought to be given primacy and supremacy. It should be the top priority of the government to see that a bidder maintains high quality. Further, the plaintiff-appellant has sought ad interim injunction order in mandatory form, which needs a very strong prima facie case and this court feels that the plaintiff-appellant has not been able to satisfy as to how the inclusion of clause 5-L is illegal and how he is entitled to participate in the tender without incorporation of such clause when such clause is common to all the bidders, and is not detrimental to anyone. As the temporary injunction application is still pending before the trial court, and as observed earlier, this court feels that no further observations are needed for the same may prejudice the decision of the main temporary injunction application as also the suit.
Consequently, the appeal being devoid of merits is, hereby, dismissed. Needless to mention that the observation made herein are limited to the disposal of the instant appeal and the trial court shall be free to decide the temporary injunction application in accordance with law without being influenced by any observation made hereinbefore.