CHINESE TANNERY OWNERS ASSOCIATION Vs. MAKHAN LAL
LAWS(CAL)-1951-12-16
HIGH COURT OF CALCUTTA
Decided on December 11,1951

CHINESE TANNERY OWNERS' ASSOCIATION Appellant
VERSUS
MAKHAN LAL Respondents


Referred Judgements :-

DHANESHWAR NATH V. GHANSHYAM DHAR [REFERRED TO]
K.NAGABHUSHANA REDDY VS. REDDIVARI NARASAMMA [REFERRED TO]



Cited Judgements :-

ANUPAM SAHKARI AVAS SAMITI LTD. VS. ADDITIONAL DISTRICT JUDGE, COURT NO. 4, LUCKNOW AND ANOTHER [LAWS(ALL)-2005-3-316] [REFERRED TO]
AMBARAIN VS. DURGA DAS [LAWS(J&K)-1964-8-2] [REFERRED TO]
SATYA PRAKASH TIWARI ALIAS KALLU VS. CIVIL JUDGE JUNIOR DIVISION [LAWS(ALL)-2005-12-108] [REFERRED TO]
P SRINIVASA RAO VS. P INDIRA [LAWS(APH)-2001-11-11] [REFERRED TO]
MANJERI MUNICIPALITY VS. MOHAMMED ALI [LAWS(KER)-2014-12-155] [REFERRED TO]
THE BREACH CANDY SWIMMING BATH TRUST AND ORS. VS. DIPESH MEHTA AND ORS. [LAWS(BOM)-2015-10-152] [REFERRED TO]
YOGESH SHAH VS. DHARMESWARI DEVI ALIAS DHARMESWARI DEVI [LAWS(GAU)-2005-12-30] [REFERRED TO]
UMAPATI CHOUDHURI VS. SUBODH CHANDRA CHOUDHURI [LAWS(CAL)-1952-5-12] [REFERRED TO]
RATHINDRA NATH BOSE VS. JYOTI BIKASH GHOSH [LAWS(CAL)-1975-7-16] [REFERRED TO]
HARAPARBATI THAKURANI BIJE VS. RAMAKANTA GUPTA [LAWS(ORI)-2001-11-30] [REFERRED TO]
UNION OF INDIA VS. YOGENDRA SINGH [LAWS(PAT)-2010-7-82] [REFERRED TO]
LA-FIN FINANCIAL SERVICES PVT. LTD. VS. IL & FS FINANCIAL SERVICES PVT. LTD. [LAWS(BOM)-2015-9-62] [REFERRED TO]
VIKRAM BAKSHI VS. STATE [LAWS(DLH)-2017-9-23] [REFERRED TO]
HDFC BANK LIMITED VS. ASHIMA LIMITED [LAWS(GJH)-2019-1-57] [REFERRED TO]
EZHUTHACHAN NATIONAL ACADEMY REPRESENTED BY ITS GENERAL SECRETARY VS. R. GOPINATHAN NAIR S/O. RAMAN PILLAI [LAWS(KER)-2019-2-133] [REFERRED TO]
TATA CHEMICALS LTD VS. KSHITISH BARDHAN CHUNILAL NATH AND OTHERS [LAWS(CAL)-2019-7-95] [REFERRED TO]


JUDGEMENT

Das Gupta, J. - (1.)The appellants before us are three of 252 defendants in a suit brought by one Makhan Lai Ganguly, a building contractor. The suit was brought on a claim of a little less than two lacs of rupees said to be due on account of the costs of construction of a. building and costs of materials supplied, after giving full credit for three lacs seventy four thousand and sixty three rupees said to have been received from the Chinese Tannery Owners' Association, appellant No. 1 before us and defendant No. 2 in the suit. Defendant No. 3 is the President of the Chinese Tannery Owners' Association while defendant No. 4 is the Chairman of the building Committee. The plaintiff prayed for a temporary injunction restraining all the defendants from drawing on their account with deft. 1, Bank of China. An 'ad interim' injunction was at first granted against defendants Nos. 1 to 10. Finally, after hearing objections raised by these defendants the learned Subordinate Judge confirmed the injunction as against defendants Nos. 2, 3 and 4 and directed that they were not to withdraw money in their accounts with defendant No. 1 to a limit of two lacs and fifteen thousand rupees only. The ad interim injunction which had been earlier granted against defendants Nos. 5 to 10 was discharged. The prayer for injunction was purported to have been made under Order 39, Rule 1, Civil P. C. as well as under Section 151 of the Code. One of the objections raised by the defendants was that the provisions of Order 39, Civil P. C. could not be attracted to the facts of the present case. The learned Subordinate Judge did not clearly record his decision on this question, but from what he has said in his judgment it is clear that he has passed the order mentioned above in the exercise of inherent jurisdiction of the Court, and it seems reasonable to hold that the order was not passed under Order 39, Rule 1, Civil P. C. Consequently, an appeal would not lie. The Court having passed this order in the exercise of its inherent jurisdiction, it is still open to us to see whether we should interfere with the order, he has passed in the exercise of our jurisdiction under Section 115, Civil P. C.
(2.)It is necessary to consider first the point taken by Mr. Sen on behalf of the appellants that it is not open to the Court to pass any order of injunction in the exercise of its inherent jurisdiction under Section 151, Civil P. C. His argument is that where the Code has clearly and fully dealt with a matter, there is no scope for any action under inherent jurisdiction. He further argues in this connection that a reading of Section 94 of the Code makes it clear that the provisions of Order 39, Civil P. C. were intended to be exhaustive as regards this matter of temporary injunction. For this proposition he has relied upon the decisions in the case of 'HEMENDRALAL ROY v. INDO SWISS TRADING CO. LTD.', 24 Pat 496. and in the case reported in NAGABHUSHAN REDDY v. NARASAMMA, (1950) 2 Mad L J 482. Quite clearly an opposite view was taken in the Allahabad case of 'DHANESHWAR NATH v. GHANSHYAM DHAR', ILR (1940) All 201. Notice must also be taken of an observation by Mookerjee J in the case of 'NIRODE BARANI DEBI v. CHAMATKARINI DEVYA,' 19 Cal W. N. 205. While it is true that the Court was not, in this case, directly dealing with the point whether an injunction could be granted and the observation therein might be considered obiter, there can be no doubt as to what the learned Judges thought in the matter. Their view clearly was that in a suitably case the Court could give an order of injunction in the exercise of its jurisdiction under Section 151; Civil P. C. even though the provisions of Order 39, C. P. C. might not give it any authority to do so.
(3.)The principles that .underlie a decision of the question whether on a certain matter there are certain provisions in the Code that bar the exercise of powers under Section 151, Civil P. C. were considered by this Court in the Full Bench case of ABDUD KARIM ABU AHMAD KHAN GHAUZNAVI v. ALLAHABAD BANK LTD,' 44 Cal. 929. Dealing with the argument similar to what has been addressed to us here Woodroffe J. observed:
"......Doubtless this exercise of inherent jurisdiction must be exercised with care subject to the general legal principles and to the condition that the matter is not one with which the Legislature has so specifically dealt as to preclude the exercise of inherent power. But it is argued here that the Court has dealt with the subject of remand and has therefore indicated that it is not to be ordered except in the one! specific instance mentioned in Order 41, Rule 23. I am not prepared to hold this, the more so that Section 564 of the previous Code has not been re-enacted. The mere fact that Section 107 deals with remand does not exclude the Court's inherent jurisdiction to make orders of remand in cases other than those covered by Order 41, Rule 23. I am of opinion, therefore, that the powers of the appellate Court as regards remand are not limited to the specific case mentioned in Order 41, Rule 23 and that the Court, under its inherent jurisdiction, may order a remand to do what is right and necessary in cases other than those covered by that order if justice so requires it. Whether justice does require a Court to invoke its inherent jurisdiction, must be determined by that Court with reference to the particular facts of the case and the rule of law that a Court cannot invoke an inherent jurisdiction where there is a provision in the Code, whether by way of remand or otherwise: which, if applied, will meet the justice of the case."



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