Decided on March 08,1983

A K AGNIHOTRY Respondents


- (1.) THE short point for consideration in this Civil Revision case under section 115 of the Civil Procedure code is if the jurisdiction of an Appellate court entertaining an appeal under order 43 of the Code extends beyond the order appealed against. The question arises in the facts and circumstances given below,
(2.) THE defendant petitioner obtained a contract from Steel Authority of India Ltd. for Wheel normalizing furnace at wheel and axle plant in the Durgapur Steel Plant. the plaintiff opposite party was a sub-contractor under the petitioner. The terms and conditions of the sub-contract were reduced to writing on 28. 10. 80. The defendant petitioner rescinded the sub-contract on 17. 10. 81 and called ,upon the plaintiff to surrender the work site of the plaintiff to the petitioners engineers within seven days of the receipt of the letter. On 21. 11. 81 the plaintiff filed a suit in the Court of munsif at Durgapur for a declaration that the contract aforesaid between the parties was subsisting and continuing ; and termination thereof was illegal. On the very same date the Plaintiff filed an application under order 39 Rules 1 and 2 C. P. Code for restraining the defendant from interfering with the plaintiff's continuance of the work under the contract during the pendency of the suit and also prayed for an adiriterim order of injunction. The learned munsif refused to pass any order of adiriterim injunction, but he ordered issue of notice of the application. On 24. 11. 81 the plaintiffs filed Miscellaneous Appeal No, 212 of 1981, in the court of the District judge, Burdwan against the order of the learned Munsif. The said Misc. Appeal was transferred by the Learned District judge to the Court of Additional District judge at Durgapur for hearing and disposal. While the appeal was pending on 2. 8. 82 plaintiff opposite party filed An application in the said appeal purporting to be an application under order 26 and/or Section 151 C. P. Code praying for direction of the court on the defendant petitioner to make necessary arrangement with its principal (D, S. P) enabling the plaintiff appellant to take out alt its articles, equipments act. mentioned in Annexure A to the application from the work site of the D. S. P. The defendant respondent in the said appeal raised objection principally on the point of jurisdiction. In point of fact the defendant respondent contended that the machineries equipments, tools etc. referred to in the annexure to the. plaintiffs petition were on their own admission brought to the work site under the control and custody of the D. S. P authority and the said articles etc. were brought to the work site after entry challans duly passed by the Security officer of the d. S. P. on verification at the time of their entry. it was the duty and responsibility of the plaintiff to get back the articles from the D ). S. P. on production of necessary documents to their satisfaction, but the d. S. P. authorities were not improved parties to the suit.
(3.) THE learned Additional District Judge by his order dated 1. 10. 82 passed in the said Misc. Appeal No. 212 of 1981 after hearing the parties ordered without prejudice to the rights and contentions of the paroles the prayer Of the appellant is allowed. The respondent is directed to make necessary arrangement with its principal the Durgapur Steel Plant for enabling the appellant to take out various equipments, articles as mentioned in Annexure 'a' in the petition". What arrangement the learned additional District Judge desired the defendant to make by the order impugned is not clearly indicated in the order itself. But the plaintiff respondent alleged that the DSP authority by their letter dated 9. 9. 82 had informed them that they were prepared to return the. tools and equipments if the petitioners had no objection thereto. True copy of the letter has been filed along with the opposite party's application. The copy of the letter does not fully corroborate the plaintiff opposite party. The said letter indicates that DSP authorities desired the plaintiff opposite party to make all correspondence in connection with the above subject through the defendant petitioner. The stand is perfectly justified, because we have seen that the plaintiff respondent was merely a sub-contractor whereas defendant petitioner was a contractor under the DSP. Be that as it may, aggrieved with the order the defendant has come up in revision.;

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