R K BISWAS Vs. UNION OF INDIA

JUDGEMENT

(1.) This civil revision, application by the plaintiff is directed against an order passed in appeal by the Subordinate Judge, First Court, Dhanbad, vacating an or ler of injunction passed by the Munsif. First Court, there.

(2.) The petitioner alleges to have been appointed to the permanent post of a Special Grade Travelling Ticket Examiner (hereinafter referred to as "T. T. E." for the sake of brevity) at Dhanbad on the 3rd January 1964. On the 7th May, 1964, he was directed to attend the office of the Commercial Superintendent, Dhanbad; and when he went there he received on that very date a I about 5 p.m an order of his transfer to Sealdali Division From the 8th May, 1964 till the 25th May 1964. he was on sick leave. On the 26th May. 1964 and the 27th May, 1964, as appears from the programme for Squad No 4. of which the petitioner was said to be in charge, he was on rest due on the 16th May and the 23rd May, 1964, respectively His name, however, continued to ippear on those two dates in the muster-roll On the 27th May 1964. the petitioner met the Divisional Commercial Superintendent, Dhanbad, who verbalh directed him to join Sealdah Division. His name was removed from the muster-roll at Dhanbad on the 28th May, 1964. It, however, appears that on the 15th May. 1964. the petitioner filed a title suit, being Title Suit No. 323 of 1964, in the First Court of the Munsif at Dhanbad for a declaration that the transfer order was illegal and contrary to rules, and a prayer was made for a permanent injunction restraining the defendants rail- way authorities from giving effect to the transfer order. On the same day, he made an application for issue of an order directing the defendants not to give effect to the transfer order pending the disposal of the title suit. The learned Munsif, on the same day, passed an order of ad interim injunction restraining the defendants from giving effect to the above transfer order. After the name of the petitioner was removed from the muster-roll on the 28th May, 1964, the petitioner filed another application on the 24th June, 1964 for issue of a mandatory injunction directing the defendants to put the name of the petitioner in the Duly Roster at Dhanbad and to allow him to perform his duty as a Special Grade T. T. E. at Dhanbad, in view of the order of ad interim injunction passed on the 15th May, 1964. This application was disposed of by the learned Munsif by his order dated the 5th January, 1966, whereunder he passed an order of mandatory injunction directing the defendants to allow the petitioner to resume his duties as a Special Grade T. T. E. at Dhanbad. Against the above order, the defendants preferred an appeal before the District Judge, Dhanbad, which was heard by the Subordinate Judge, First Court, there. The appellate Court allowed the appeal and rejected the petition of the petitioner for issue of a mandatory injunction. Being thus aggrieved, the petitioner has filed the present revision application.

(3.) The first point raised by Mr. Ghost, appearing for the petitioner, is that no appeal lay against the order of the Munsif to the District Judge, and, therefore, the order of rejection of the application for mandatory injunction passed by the Appellate Court is illegal and void. It has been submitted that the order of mandates injunction was passed by the learned Munsif under his inherent powers under Section 161 of the Code of Civil Procedure (hereinafter referred to as "the Code") On the other hand, Mr. Bose, appearing for the opposite parlies, has urged that the application for mandatory injunction was made and entertained as being an application under the provisions of Order 39. Rule 2, of the Code; and against an order passed on such application, an appeal lay under the provisions of Order 43. Rule 1(r). of the Code. In order to find out. therefore, the competency of the appeal in the Court below, it has to be seen whether the order of mandatory injunction was passed under Order 39, Rule 2, or under the inherent powers of the Court under Section 151 of the Code There is no dispute that a Court can pass an order of mandatory injunction under Section 151 of the Code; but at the same lime it appears to me that such an order could also be passed under the provisions of Order 39. Rule 2. of the Code Order 39. Rule 2(1) states that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. Applying the above provision to the facts of the present case, it is manifest that the plaintiff-petitioner brought the suit for restraining the defendants from committing an injury to the plaintiff by transferring him from Dhanbad to Sealdah Division, and a prayer for injunction was made to direct the defendants not to give effect to the transfer order so that the injury complained of might not be committed. It is, therefore, a case under the privisions of Order 39, Rule 2, of the Code. An order of mandatory injunction directing the defendants not to give effect to the transfer order and to allow the plaintiff to work as a Special Grade T. T. E. at Dhanbad could, in my opinion, very well be passed under the above provision of the Code. The decision of the question, however, is not free from difficulty, and there appears to be no direct authoritative decision of any Court on this point, though there are decisions which throw some light on the subject.