# U6I l'r""'uil Chandra Dt6 v. Tiu Sui. o/Orissa

- **Citation:** [1962] Supp. 1 S.C.R. 450
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. N. Wanchoo, K. c. DAS GUPTA, T. c. SHA!(, Raohubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/u6i-l-r-uil-chandra-dt6-v-tiu-sui-o-orissa-2432
- **Pages:** 26

## Headnote

Civil Procedure-Inherenl pou'<rB nf courl .. -Temporary
Injunction-Restraining parly from procuding with •uit in
anothar State-l.egality and propriety of-Code of Cid/ Procedure, 1908 (V of 1908), ss. 94(c) 151 : 0. 39 r. 1.
M filed a suit at Asansol against H for recovery of
money.
Later, H filed a counter suit at Indore againtst M
for recovery of money. In the Asansol suit one of the
defences rai•ed by H was that the A.ansol court had no
jurisdiction to entertain the suit. H applied to the Asansol
court to stay the suit but the court refused the prayer. An
appeal to the Calcutta High Court against the refusal to
stay was dismissed with the direction that the preliminary
issue of juri•diction should be disposed of by the trial
court immediately. Thereupon, H applied to the Indore
court for an injunction to ttstrain M from proceeding with
the Asansol suit pending the disposal of the Indore suit and
the court purporting to act under 0. 39 Code of Civil Procedure granted 1 he injunction. M appealed to the Madhya
Bharat High Court which dismissed the appeal holding that
though 0. 39 was not applicable to the case the 01 der of
injunction could be made undrr the inhrrent powers of the
court under s. 151 Code of Civil Procedure.
Held, that the order of injunction was wrongly granted
and should be vacated.
Per, Wanchoo, Das Gupta, and Dayal,.D.-The Civil
courts had inherent power to issue temporary injunctions in
cases which were not covered by the provisions of 0. 39 Civil
Procedure Code. The provisions of the Code wrre not
I
...
(1) S.C.R .
SUPREME COURT REPORTS
451
exhaustive. There was no prohibition in s. 94 against the
grant of a temporay injunction in circumstances not covered
by 0. 39. But inherent powers were not to be exercised when
their cirercisc was in conflict with the express provisions of the
Code or was against the intention of the legislature. Such
powers were to be exercised in very exceptional circumstances.
A plaintiff of a suit in another jurisdiction could only be restrained from proceeding with hi1 suit if the suit was vexatious
and useless. It was not so in the present case.
It was proper that the issue as to jurisdiction should be decided by the
Asansol court as directed by the Calcutta High Court. The
Indore court could not decide this issue. Besides, it was open to
the Asansol court to ignore the order of the Indore court and
to proceed with the suit. This would place Min an impossible position. An order of a court should not lead to such
a result.
Varadacharlu v. Narsimha Oharlu, A. I. R. 1926 Mad.
258 ; Govindarajalu v. Imperial Bank of India, A. I. R. 1932
Mad. 180 ; Karuppayya v. Ponnusu:ami, A. I. R. 1933 Mad.
500(2); Murugesa Mudali v. Angamuthu Madali, A.I. R. 1938
Mad. 190 and Suhramanian v. Seetarama, A.I. R. 1940 Mad.
104, not approved.
Dlianukwar Nath v. Gharuhyam Dhar, A. I. R. 194-0
All. 185, Firm Richchha Ram v. l'irm Baltko Sakai, A. I. R.
1940 All. 241, Bhagat Singh v. Jagbir Sawhney, A. I. R. 1941
Cal. 670 and Chinese Tannery Owners' A88ocialion v. Makha.n
lal, A. I. R. 1952 Cal. 550, approved.
Padam
Sen v. State of U. P. [1961] 1 S. C.R. 884,
Oohen v. Rothjield, L. R. [1919) 1 K. B. 410 and Hyman v.
Helm, I,, R. (1883) 24 Ch. D. 531, relied on.
Per, Shah, J.-Civil courts have no inherent power to
issue injunctions in cases not covered by O. 39, rr. I and 2
Code of Civil Procedure. The power of civil courts, other
than Chartered High Courts, to issue injunctions must he
found within the terms of s. 94 and 0. 39, rr. I an<1 2.
Where an exprns provision. ;,, made to meet a particular
situation the Code must be observed and departure therefrom
is not permissible. Where the Code deals expressly with a
particular matter the provision should normally be regarded
as exhaustive.
Padam Sm v. State of U. P. [1961) 1 S. C.R. 884,
relied upon.
Ci:Vn. APPBLLATE JumsDI<lTION: Civil Appeal
No. 346 of 1958.
11111
Manoliarlal Chopra
v.
Bai Bahadur '40
Raja Seth Hirolal
452 SUPREME OOURT REPORTS [1962] SUP

## Text

_Characters 0–39,845 of 50,045. This is a partial read: ask again with offset=39845 for what follows._

U6I
l'r""'uil Chandra Dt6
v.
Tiu Sui. o/Orissa
M udllollau J.
1961
Nofltmbtr 16.
450 SUPREME COURT REPORTS [1962) SUPP.
of the judgment there is nothing more that we
need say.
Petitions 79 of 1957
168 of 1958 arnl
4 of 1959 allowed.
Petition 167 of 1958 dismissed.
MANOHAR LAL CHOPRA
t•.
RAT BAHADUR RAO RAJA SETH HIRALAL
(K. N. WANCHOO, K. c. DAS GUPTA, .T. c. SHA!(
and RAOHUBAR DAYAL, JJ.)
Civil Procedure-Inherenl pou'<rB nf courl .. -Temporary
Injunction-Restraining parly from procuding with •uit in
anothar State-l.egality and propriety of-Code of Cid/ Procedure, 1908 (V of 1908), ss. 94(c) 151 : 0. 39 r. 1.
M filed a suit at Asansol against H for recovery of
money.
Later, H filed a counter suit at Indore againtst M
for recovery of money. In the Asansol suit one of the
defences rai•ed by H was that the A.ansol court had no
jurisdiction to entertain the suit. H applied to the Asansol
court to stay the suit but the court refused the prayer. An
appeal to the Calcutta High Court against the refusal to
stay was dismissed with the direction that the preliminary
issue of juri•diction should be disposed of by the trial
court immediately. Thereupon, H applied to the Indore
court for an injunction to ttstrain M from proceeding with
the Asansol suit pending the disposal of the Indore suit and
the court purporting to act under 0. 39 Code of Civil Procedure granted 1 he injunction. M appealed to the Madhya
Bharat High Court which dismissed the appeal holding that
though 0. 39 was not applicable to the case the 01 der of
injunction could be made undrr the inhrrent powers of the
court under s. 151 Code of Civil Procedure.
Held, that the order of injunction was wrongly granted
and should be vacated.
Per, Wanchoo, Das Gupta, and Dayal,.D.-The Civil
courts had inherent power to issue temporary injunctions in
cases which were not covered by the provisions of 0. 39 Civil
Procedure Code. The provisions of the Code wrre not
I
...
(1) S.C.R .
SUPREME COURT REPORTS
451
exhaustive. There was no prohibition in s. 94 against the
grant of a temporay injunction in circumstances not covered
by 0. 39. But inherent powers were not to be exercised when
their cirercisc was in conflict with the express provisions of the
Code or was against the intention of the legislature. Such
powers were to be exercised in very exceptional circumstances.
A plaintiff of a suit in another jurisdiction could only be restrained from proceeding with hi1 suit if the suit was vexatious
and useless. It was not so in the present case.
It was proper that the issue as to jurisdiction should be decided by the
Asansol court as directed by the Calcutta High Court. The
Indore court could not decide this issue. Besides, it was open to
the Asansol court to ignore the order of the Indore court and
to proceed with the suit. This would place Min an impossible position. An order of a court should not lead to such
a result.
Varadacharlu v. Narsimha Oharlu, A. I. R. 1926 Mad.
258 ; Govindarajalu v. Imperial Bank of India, A. I. R. 1932
Mad. 180 ; Karuppayya v. Ponnusu:ami, A. I. R. 1933 Mad.
500(2); Murugesa Mudali v. Angamuthu Madali, A.I. R. 1938
Mad. 190 and Suhramanian v. Seetarama, A.I. R. 1940 Mad.
104, not approved.
Dlianukwar Nath v. Gharuhyam Dhar, A. I. R. 194-0
All. 185, Firm Richchha Ram v. l'irm Baltko Sakai, A. I. R.
1940 All. 241, Bhagat Singh v. Jagbir Sawhney, A. I. R. 1941
Cal. 670 and Chinese Tannery Owners' A88ocialion v. Makha.n
lal, A. I. R. 1952 Cal. 550, approved.
Padam
Sen v. State of U. P. [1961] 1 S. C.R. 884,
Oohen v. Rothjield, L. R. [1919) 1 K. B. 410 and Hyman v.
Helm, I,, R. (1883) 24 Ch. D. 531, relied on.
Per, Shah, J.-Civil courts have no inherent power to
issue injunctions in cases not covered by O. 39, rr. I and 2
Code of Civil Procedure. The power of civil courts, other
than Chartered High Courts, to issue injunctions must he
found within the terms of s. 94 and 0. 39, rr. I an<1 2.
Where an exprns provision. ;,, made to meet a particular
situation the Code must be observed and departure therefrom
is not permissible. Where the Code deals expressly with a
particular matter the provision should normally be regarded
as exhaustive.
Padam Sm v. State of U. P. [1961) 1 S. C.R. 884,
relied upon.
Ci:Vn. APPBLLATE JumsDI<lTION: Civil Appeal
No. 346 of 1958.
11111
Manoliarlal Chopra
v.
Bai Bahadur '40
Raja Seth Hirolal
452 SUPREME OOURT REPORTS [1962] SUPP.
•
1111
M...ir .. tat C<"{H•
v.
Rfl •1htttlw Rao
&;' Srdi Hirdfol
Appeal by spe,1ial leav<l from the judgment
and order dat-0d May 10, 195:), of the former Madhya
Bharat High Court in Misc.
Appeal No. 26 of
1954.
S. N. Andley, Rameshtcar Nath and P. L.
Vohra, for tho appellant.
S. T. Desoi, K. B. Bhatt and B. R. L. Iyengar,
for the respondent.
1961. November 16. The Judgment of Wanchoo,
Das Gupta and Dayal, JJ., was delivered by Dayal
J. Shah J., delivered a separate Judgment.
R.,,,. ... D9al J.
RAGIIUBAR
DAYAL, J.-The appellant and
the respondent entered into a
partnership at
Ir1dore for working con,! mines at Kajora gram
(District Burdwan) and manufacture of cement
etc., in the name and style of 'Diamond Industries'.
The head office of the
partnership was at
Indore. The partnership wus diss0lvcd by a deed
of dissolution dated Angust 22, 1945. Under the
terms of this deed, the appellant ma.de himself
liable to render full, correct and true account
of all the moneys advanced by the respondent
and also to render accounts of the said partnership and its
busincs~. and waR held entitled to
I/4th of Rs. 4,.00,000/-
solely contributed by
the respondent tow~rds the capital of the partnership. He was, however, not entitled to get this
amount unlesR
ancl until he had rend<'red the
accounts and they had been checked and audited.
The second proviso at the end of the convenanta in the deed of dissolution reads:
"Provided however and it is agreed by
and between the parties that as the parties
entered into the partnership agreement at
Indore (Holkrr State) all disputes and differe·
ncee whether regarding money or aa to the
relationship or as to their rightB and liabilities of the parties hereto in respect of the
•
•
.,
I
\
(l) S.C.R.
SUPREME COURT REPORTS
453
partnership hereby dissolved or in respect of
questions arising by and under this docu.
ment shall be decided amicably or in court
aG Indore and at nowhere else."
On Sepetember 29, 1945, a registered letter
on behalf of the respondent was sent to the appe.
Hant. This required the appellant to explain to
and satisfy the respondent at Indore as to the
accounts of the said colliery within three months
of the receipt of the notice. It was said in the
notice that the accounts submitted by the appellant
had not been properly kept and that many entries
appeared to be wilfully falsified, evideuUy with
malafide intentions and that there appeared in
the account books various false and fictitious
entries causing wrongful loss to the respondent
and wrongful gain to the appellant. '.l'he appellant
sent a reply to' this notice on December 5, 1935,
and denied the' various allegations, and requested
the respondent to meet him at Asansol or Kajorag·
ram on any day suitable to him, within ten days
from the receipt of that letter.
On August 18, 1948, the appellant instituted
Suit M. S. No. 33 of 1948 in the Court of the
Subordinate Judge at Asansol againt the respon·
dent for the recovery of Rs. 1,00,000/· on account
of his share in the capital and assests of the part·
nership firm 'Diamord Industries' and Rs. 18,000/·
as interest for detention of the money or as dama.
ges or compensation for wrongful withholding of
the payment. In the plaint he mentioned about
the respondent's notice and his reply and to a
second letter on behalf of the respondent and his
own reply thereto. A copy of the deed of dissolution, according to the statement in paragraph 13
_of the plaint, was filed along with it.
On October 27, 1948, respondent filed a petition under s. 34 of the Arbitration Act in the
.i\sansol Court praying for the stay of the suit itl
lHl
II .,.oltar/trl Cliopra
••
Bai flaMdllf &.
Raj• s,111 Hiralal
Ra:hubar Da)"'I J,
lll6l
M....i...W l'liof"•
v.
B.; Bahodzn Ra.
!Wja S11h Hiralal
Rqhabtzr DGJal J.
454 SUPREME COURT REPu.RTS [1962] SUPP.
view of the arbitration agreement in the original
deed of partnerahip. Thie application wa11 rE>jected
on August 20, 1949.
llleanwhile, on ,January 3, 1949, the respon·
dent filed Civil Original Suit No. 71 of 1949 in
the Court of the District Judge, Indore, against
the
appellant, and prayed for a decree for
Rs. 1,90, 519-0-!i against the appellant and further
interest on the footing of settled accounts and in
the alternative for a direction to the appellant to
render true and full accounts of the partnership.
Ou November 28, 1949, the respondent filed
.ilia written statement in the Aeansol Court. Paragraphs 19 and 21 of the written statement are :
"19. With reference to paragraph 21 of
the plaint, the defendant denies that the
plaintiff has any cause of action against the
defendant or that the alleged cause of action,
the existence of which is denied, arose at
Kajora Colliery. The defendant craves reference to tho said deed of diBSolution whereby
the plaintiff and tho defendant agreed to have
disputes, if any, tried in the Court at Iudo~e.
I
In the circumstances, the defendant submits
that this Court has no jurisdiction to try and
entertain this suit.
21. The suit i1 vexatious, speculative,
oppressive and is instituted malafide and
should be dismissed with costs."
INUee were struck on Fcbuary 4, Hl50. The firnt
two i88ucs are 1
"l. Has this Court jurisdiction to entertain and try this suit ?
2. Hu the plaintiff rendered and satisfactorily explained the account.a ol
~he JJB:rtuerehip in terms of the deed of d188olut1on
of partnership ?"
-I
(1) C.S.R.
SUPREME COURT REPORTS
455
In December 1951, the respondant applied
in the Court at Asansol for the stay of that suit
in the exercise of its inherent powers. The application was rejected on August 9, 1952. The learned Sub-Judge held :
"No act done or proceedings taken as
of right in due course of law is 'an abuse of
the process of the Court' simply because such
proceeding is likely to embarass the other
party."
He therefore he Id
that there could be no
scope for acting u11der s. 151, Code of Civil Procedure, as s. 10 of that Code had no application to
the suit, it having been instituted earlier than the
suit at Indore. The High Court of Calcutta confirmed this order on May 7, 1953, and said:
"We do not think that, in the circumstance of these cases and on the materials
on record, those orders ought to be revised.
We would not make any other observation
lest it might prejudice any of the parties."
The High Court further gave the following
direction:
"As the preliminary issues, Issue No. 1
in the two Asansol suits have been pending
for over two years, it is only desirable that
the said issues should be heard out at once.
We would, accordingly, direct that the hearing of the said issues should be taken up by
the learned Subordinate Judge as expedi·
tiously as possible and the learned Subordinate Judge will take immediate steps in that
direction."
Now we may refer to what took place in tho
Indore suit till then. On April 28, 1950, the appellant
applied to the Indore Court for staying that suit
under ss. 10 and 151 Code of Civil Procedure.
J!Jft
Marwhar(al,Oh,P
v.
R4i Bahadu'f:. Ran
Raja-Seth Hi;al4J,
Raghubar D(j)laU.
I
II ..,,.aw Oltopra
v.
BoiB.- Ru
R.,;. 6rt1s Bini/al
R11,,., D.,.J J,
456 SUPREME COURT REPORTS [1962) SUPP.
T,h.11 application wa.s opposed by tho respondent
on three grounds. Th" fir8t ground wa.s that according to tho term in t.he <lccd of dis~olution, thflt
Court a.lone could dccido the disputes.
The second
was that under the provisions of the Civil Procedure Code in force in Madhya Bharat, the court a.t
Asansol wns not a.n intcma.l Court 11nd that t.he suit
file<! in Asa.nsol Court could not hnvc the effect ofsta.ying the .proceedings of that suit. The third wns that
the two suits were of different nature, their subject
matter and relief cl11imcd being diff<'rP11t.
Th<'
application for stay w'ls rejc,cted on July 5, l!J.'il.
The Court mainly rclkcl rm the provisions of t.he
Second prnviso in the deed of dissolution.
The
High Court of Madhya Bharat confirmed that
order on August 20, 1953.
The position then, after August 20, 1953,
was that the proceedings in both the suits were to
eontimw, and that the Asansol Court had been
directed to hear the issue of jurisdiction a.t an
early date.
It was in these circumstances that tho respondent applied under s. 151, (',ode of Civil Procedure on September 14, 1953, to the
Indore
Court, for restraining the a.ppella.nt from continuing the proceedings in the suit filed by him in the
Court a.t Asa.nsol. The respondent alleged that tho
appellant filed tho suit a.t Asansol in order to put
him to trouble, heavy ex:ponses and wastage of
time in going to Asa.nsol and that he wa.s taking
st,eps for the continua.nee of the suit filed in the
Court of the Subordinate Judge of Asansol. The
a.ppella.nt contested this application and stated
that he wa.s within his rights to institute the suit
a.t Asansol, that that Court was competent to try
It 'Ind that the point had been decided by overruling the objections raised by the respondent a.nd
that the respondent's objection for the stay or
(I) S.C.R. SUPREME COURT REPORTS
457
proceedings in tho Court at Asansol ha~ beei;i reje_cted by that Court. He denied that his ob1ect rn
instituting the suit was to cause trou hie and heavy
expenses to tho respondent.
It may be mentioned that the respondent di<l
not sttite in his application that his application
for the stay of the suit at Asansol had been finally
dismissed by the High Court of Calcutta and that
that Court had directed the trial Court to decide
the issue of jurisdiction at an early date. The
appellant, too, in his objections, did not specifically state that the order rejecting the respondent's
stay application had been confirmed by the High
Court'at Calcutta and that that Court had directed
for an early hearing of the issuA of jurisdiction.
The learned Additional District Judge, Indore,
issued interim injunction under 0. XXXIX, Code
of Civil Procedure, to the appellant restraining
him from proceeding with his Asansol suit pend·
ing decision of the Indore suit, as the appellant
was proceeding with the . suit at Asansol in spite
of the rejection of his application for the stay of
the suit at Indore, and, as the appellant wanted
to violate the provision in the deed of dissolution
a.bout the Indore Court being the proper forum
for deciding the dispute between the
parties.
Against this order, the appellant went in appeal
to the High Court of Judicature at Madhya Bharat,
contending that the Additional District Judge
erred in ·holding that he was competent to issue
such an interim injunction to the appellant under
0. XXXIX of the Code of Civil Procedure and
that it was a fit case for tl:ie issue of such an
injunction and that, considel'ing ·the provisions
of O. XXXIX, the order was without jurisdiction.
The High Court dismissed the appeal by its
order dated May 10,1955. The learned Judges agreed
with the conwntion tha,t Q. :XXXIX, r. 1, did not
11161
Ala :Qharlal Chopra
v.
.
Rai Br.1hadur Rao
Raja Seth Hiralal
Ra1hubar Dayal J.
I~GI
Afa11oharl11l C/11>/ira
v,
Rai Baluulur Rao
Ua;a Sith Hi1alal
J1o;hubar Do;·ol J.
458 SUPREME C'OUll'f HEPORTS [19ti2J SUPP.
apply to the facts of the tasc. They, however, held
that the order of injunction could be issued in the
cx<'rcisc of the inherent powers cf the Court undt'r
s. 151, C.P.C. It is against thiR order that the appella.nt has preferred this appl'al, by special leave.
On behalf of the appcllaut, two main questions
have been raised for consideration. The first is
that the Court could not exercise its inherent
powers when there were specific provisions in the
Code of Civil Procedure for the issue of interim injunctione, they being s. 04 and 0. XXXIX. The
other question is whether the Court, in the exercise of its inherent jurisdiction, exercised its
discretion properly, keeping in mind the facts
uf the case.
The third point which came up for
discussion at the hearing related to the legal effect
of the second proviso in the deed of dissolution 011
the maintainability of the suit in the Court at
Asansol.
We do not propose to express any opinion un
this question of jurisdiction as it is the subject
matter of an issue in tho suit at Asa.nsol and also
in the suit at Indore and because that issuo had
not yet been decided in any of the two suits.
On the first question it is argued for the appellant that the provision• of cL (c) of s. 94, Code of
Civil Procedure make it clear that interim injunctions can be issued only if a provision for their
issue is made under the rules, as they provide that
a Court may, if it is so prescribed, grant temporary
injuncti(lns in order to prevent the ends of justice
from being defeated, that thP. worrt 'prescribed',
according tu s. 2, means 'vrcscribcd by rnles' and
that rr. 1 and 2 of O. XX XIX lay down certain circumstances in which a temporary injunction may
be issued.
There is difference of opinion between the
High Courts on this point. One view is that a Court
,
I
(1) s.c.R. SUPREME COURT REPORTS
4.59
cannot issue an order of temporary injunction if the
circumstances do not fall within the provisions of
Order XXXIX of the Code: Varadacharlu v. Narsimha Oharlu ('), Go1Jindarajuluv. Imperial' Bank
of India ('),
Karuppayya v. Ponnuawami ('),
Murugesa Mudali v. Angamuthu Mudali (') and
Subramanian v. Seetarama ('). The other view
is that a Court can issue an interin injunction under
circumstances which a.re not covered by Order
XXXIX of the Code, if the Court is of opinion that
the interests of justice require the issue of such interin injunction: Dhaneshwar Nath v. Ghnnshyam
Dhar ('), Firm Bichchha Ram v. Firm Baldeo
Sahai ('), Bhagat Singh v. Jagbir Sawhney (') and
Chinese Tannery Owners'
Association v. Malekan
Lal('). We are of opinion that the latter view. is
correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances
which are not covered by the provisions of
O.XXXIX, Code of Civil Procedure. There is no such
expression in s. 94 which expressly prohibits the
issue of a temporary injunction in circumstances
not covered by 0. XXXIX or by any rules made
under the Code. It is well-settled that the provisions
of the Code are not exhaustive fo~ the simple reason
that the Legislature is incapable of contemplating
all the possible circumstances which may a.rise in
future litigation and consequently for providing
the procedure for them. The effect of the expression
•if it is so prescribed' is only this that when the
rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court
is not to use its inherent powers to make the necessary
orders in the interests of justice, but is merely to
see whether the circumstances of the case bring it
within the prescribed rule. If the provisions of s. 94
(1) A.l.R. 1926 Mad. 258.
(2) A.LR. 1932 Mad. 186.
(3) A.I.R. 1933 Mad. 500 (2).
(4) A.I.R. 1938 Mad. 190.
(5) A.I.R. 1949 Mad. 104,
(6) A.l.R. 1940 All. 185.
(7) A.l,R. 1940. All. 241.
(8) A.l.R. l~I Cal. 670.
(9) A.I.R. 1952 Cal. 060.
1961
Manoliarlal Chopra
••
Rai Bahadur Rao
Raja Sith HiralaJ
Raghubar Dayal J.
19"1
M erwlao1/al Ch1pr a
v.
Rai Bahttlur Roo
Roj.2 S1rh Hiralal
Ra1JnJun Dayal J.
460 SUPREME COURT REPORTS [1962] SUPP.
were not there in the Corle, the Con rt con Iii still
iasuc temporary injunction~, but it could do that in
the excrrise of it~ inherent jurisdiction. No party
has a right to insiRt on the Court's exercising that
jurisdiction and the Court exercises its inhrrent
jurisdiction only when it considera it absolutely
necrFsary for the enrls of justice to do so. It is in
the incidence oft.he exercise of the powi>r of the
Conrt to iss1w trmporarv injunction thnt. the provisions of~. 94 of t.h<l Corlr have thrir effect anrl not
in taking away the right of the Court to exercise its
inherent power.
There is nothin!: in 0. XXXTX, rr. I and 2,
which provido specifically thcit a temporary injunction is not to bo issued in cases which are nllt ruent.ioned in thoso rulrs. The rules only provitie that
in circumstances mentioned in them the Coul't may
grant a temporary injunction.
Further, the provisions of~. 151 of the CJde
make it clear that the inherent powers are nut con.
trolled by the provisions of the Code. Section 151
reads:
'Nothing in this Corle shall be deemed to
limit or otherwise affect the inherent power
of the Court to make such orders as may be
necessary for the onds of the justice or to
prevent abuse of the process of tho Court."
A similar question about the powers of the
Court to issue a commission in the exercise of its
powers under s. 151 of the Code in circumstances
not covered by s. 75 and Order XXVI, aruse in
Padam Sen v. The State of Uttar Pmdesh (') and
this Court held that the Court can issue a commis-
.sion in such circumstances. It observed at page 887
thus:
"The inherent powers of the Court are in addition to the powers· s.pecifically conferred Oil
(II [1961] I S.C.R. 884,
--
(I) S.C.R.
SUPREME COURT REPORTS
46i
the Court by the Code. They are complementary to those powers and therefore it must be
held that the Court is free to exercise them
for the purpose mentioned in s. 151 of the
Code when the exercise of those powers is not
in any way in conflict with what has 'been
expressly provided in the Code or against the
intentions of the Legislature."
These observations clearly mean that the inherent
powers are not in any way controlled by the provisions of the Code as has been specifically stated
in s. 151 itself. But those powers are not to be exercised when their exercise may be in confJict with
what had been expressly provided in the Code or
against the intentions of the Legislature. This
restriction, for practical purposes, on the exercise
of these powers is not because these powers are controlled by the provisions of the Code but because it
sJiould be presumed that the procedure specifically
provided by the Legislature for orders in certain
circumstances is dictated by the interests of justices.
In ihe above'tlase, thi11 Court did not uphold
the order of the Civil Court, not coming under the
provisions of Order XXVI, appointing a commissioner for seizing the account books of the plaintiff on
the application of the defandants. The order was
held to be defective not because the Court had no
power to appoint a commissioner in circumstances
not covered bys. 75 and O. XXVI, but because the
power was exercised not with respect to .matters of
procedure but with respect to a matter affecting
the substantive rights of the plaintiff. This is clear
from the further observations made at page 887·.
This Court said :
"The question for determination iS whether
the impugned order of the Additional Munsif
appointing Shri Raghubir Pershad Commissioner for seizing the plaintiff's books of account
1961
Manoharlal Chopra
v.
Rai Bahadur Rao
Raja Seth Hiralal
Raghul!ar Dayal J.
1961
ManDiwlal CllJ!pro
••
Rai BfJhadur Rao
Raja Seth H irnlnl
Ragh•bor Doyal J.
462 SUPREME COURT REPORTS (1962] SUPP.
can be said to be an order which is passed by
the Court in the exercise olits inherent powers,
The inherent powers save..J by s. 151 of the
Code are with rcspcr:t to the procedure to be
followed by the Court in deciding the cause
before it. These powers are not powers over
the su bstn.ntive rights which any litigant possesses. Specific powers have to be conferred
on the Conrts for passing such orders which
would affect such rights of a party. Such
powers cannot come within the scope of inherent powers of the Court in matters of
procedure, which powers ha vc their aouroe in
the Court possessing all the esgential r,owers
to regulate its practice and procedure. '
The case reported as .Maqbul Ahmad Pratap
Nwnin Singh (') does not lay down that the inherent powers of the Court are controlled by the
provisions of the Code. It simply bolds that the
s.tatutory discretion possessed by a Court in
somo limited reFpects under an Act does not imply
that the Court possesses a general discretion
to dispense with tho provisions •of that Act.
In
that ca11e, an application for the preparation of
a final decree was presented by the decree-holder
beyond the period of limitation prescribed for the
presentation of such an application. It was however
contended that the Court poSBessed some sort of
judicial disr.rr.tion which would enable it to rf'lieve
the decree-holder from the operation of the Limitation Act in a caso of hardship. To rebut this contention, it was a&id at page 8i :
"It is enough to say that there is no authority
to support the proposition contended for. In
their Lordships' opinion it is impossible to hold
that, in a matter which is governed by Act,
an Act which in some limited respecta givee
the Court a statutory discretion, there ca.n be
(I) L. R. 62 l. A. 80:
-
-
(1) S.C.R. SUPREME COURT REPORTS
463
implied in the Court, outside the limits of the
Act, a general discretion ~o dispense with its
provisions. It is to be noted that this view
is supported by the fact that s. 3 of the Act
is peremptory and that the duty of the Court
is to notice the Act and give effect to it, even
though it is not referred ty> in the ple%dings''.
These observations have no bearing on the question
of the Court's exercising its inherent ·powers under
s. 151 of the Code. The section itself says that nothing in th@ Code shall be deemed to limit or otherwise
affect the inherent power of the Court to make
orders necessary for the ends of justice. In the face
of such a clear statement, it is not possible to hold
that the provisions of the Code control the inherent
power by limiting it or otherwise affecting it. The
inherent power has not been confeITed upon the
Court; it is a power inherent in the Court by virtue
of its duty to do justice between the parties before
it..
Further, when the Code itself recognizes the
exiAtence of t'l\e inherent power of thi> Court, there
is no question of implying any powers outside the
limits of the Code.
We therefore repel the first contention raised
for the appellant.
On the second question, we are of opinion that
in view of the facts of the case, the Courts below
were in error in issuing a temporary injunction to
the appellant restraining him from proceeding with
the suit in the Asansol Court.
The inherent powers are to be exercised by
the Court in very exceptional circumstances, for
which the Code lays down no, procedure.
The question of issuing an order to a party
restraining him from proceeding with any other
suit in a regularly constituted Court of law deserves
1961
Manoharlal Chupra
V,
Rai Bahadur Rao
Raja SeJh Hir.ilal
Raghuhar Dayal J,
1961
/'i{aMharlal C~oprn
••
R•i B.MduT llao
Roj4 Sith Hiralal
RaghubM Da;al J,
464 SlTPRE!IIE COURT JlEPORTS [1962] SUPP.
great ca.re and consideration and such an order is
not tu bo made unless absolutely essential for the
en<ls of justice .
In this conncctio11, reference mu,y usefully be
ma<le to what was said in Cohen v. RothfieU (') and
which ca.so appears to have influenced the dccidion
of the Courts in this country in the matter of
iEsuing such injunction orders. Scrutton, L. J., BB.id
at page 413:
"Where it is proposed to stay an action
on the ground that another is pending, and
the action to be stayed is not in the Court
asked to make the order, the same result is
obtained by restraining the person who is
bringing the second action from proceedings
with it.
But, as the effect is to interfere with
proceedings in another jurisdiction, this power
should be exercised with great caution to
avoid oven the appearance of undue interference with another Court''.
And a.gain, at page 4 l 5 :
"While, therefore, there is jurisdiction to
restrain a defendant from suing a.broad, it is
a. jurisdiction very rarely exercised, and to be
resorted to with great care and on ample
evidence produced by the applicant that the
a.otion a.broad is really vexatious and u11-0less.''
The principle enunciated for a. plaintiff in a. earlier
instituted suit to successfully urge a. restraint ordor
against a. subsequent suit instituted by the dcfon.
dant, is sta.tod thus in this case, at page 415 :
"It appears to me that unless the appli.
cant satisfies the Court that no advantage can
be gained by the defendant by proceeding
with the action in which he is plaintiff in
another pa.rt of the King's dominions, the
Court should not stop him from proceeding
(I) L. R. [1919) I K. B. 4JO.
-
I
(1) S.C.R. SUPREME COURT REPORTS
465
with the only proceedings which he, as plan.
tiff,
can control. The principle has been
repeatedly acted upon."
The injunction order in dispute is not based on any
such principle. In fact, in the present case, it is
the defendant of the previously instituted suit that
has obtained the injunction order against the plain·
tiff of the previously instituted suit.
The considerations which would make a suit
vexatious are. well explained in Hyman v. llelni (').
In that case, the defendant, in an action before the
Chancery Division of the High Court brought an
action against the plaintiffs in San Francisco. The
plaintiffs, is an action in England, prayed to the
Court to restrain the defendants from proceeding
further with the action in San Francisco. It was
contended that it was vexatious for the defendants
to bring the action in San Francisco as the witnesses
to the action wne residents of England, the controict between the parties was an English contract
and that its fulfilment took place is England. Jn
repelling the contention that the defendants' subsequent action in San Francisco was vexatious, Brett,
M. R., said at page 537 :
"If that makes an action vexatious it
would be a ground for the interference of the
Court, although there were no action in Eng·
land at all, the ground for alleging the action
in San Francisco to be vexatious being that
it is brought in an inconvenient place. :But
that is not the sort of vexation on which an
English Court can act.
It seems to me that where a party claims
this interference of the Court to stop another
action between the same parties, it lies upon
him to shew to the Court that the multiplicity
of actions is vexatious, and that the whole
burden of proof lies upon him. He does not
satisfy that burden of pr'.lof by merely she-
(1 I L. R. [1883] 24 Ch. D. 531.
l!Ml -
Mano'"'11al Choir•
v.
Rai BahaJur Rao
Rqja Selh Hiralal
Roghuhor Dayal J,
1961
M anoharlaJ Chopra
v.
R4i BaAadur Rao
Raja Seth HiraJaJ
Rathubar Dq.,al J,
466 SUPREME COURT REPORTR (i 9fi2] SlJPP.
\
wing that there is a. multiplicity of actionR,
he must go further. If two actions a.re broup;ht
by t.hc same plaintiff against the same defen·
dant in England for the same C<luse of action,
then, a.R "·as said iu J/Chonry v. Lewis (22 Cb.
D. 397) a.nd the case of the Peruvian Guano
Com'{Jllny v. Bodou·oldt (23 Ch. D. 225), prima
faoie that is
vexatious, and therefore the
party who comphinR of such n multiplicity of
actions had made out a prima facie ca:sc for
the interference of the Court. Where there is
an action by a. plaintiff in England, and a
crossaction hy a deCendant in England, whether the same prima facio case· of vaxation
arises is a much more difficult point to decide
and I am not prepared to say that it does.''
It should be noticed that this question for an
action being vexatious was being considered with
respect to the sub~cqucnt action brought by the
defendant in the previously ins~ituted suit and when
the restraint order was sought by the plaintiff of
the earlier suit. In the case before UR, it is thC1
plaintiff of the subsequent suit who seeks to res.
train the plaintiff of tho earlier suit from proceeding
with his suit. Thia cannot be justified on general
principles when tho previous suit has been instit,nted
in a. competent Court.
The reasons which weighed wit.h the Court
helow for maintaining tho order of injunction may
be given in its own wordR a.~ follows:
"In the plaint filed in the Asa.nsol Court
the defendant has based his daim on the deed
of dissolution dated 22, 1945, but ha.s avoided
all references t.o tho proviHions regarding tho
agreoment to place the disputeH bdoro the
Indore Courts. It wa.s an action taken by
the present dof<>ndant in anticipation of the
present suit and was t.'\ken in flagrant hl'each
-
I
-
--~'
I
(I) S.C.R.
SUPREME COURT REPORTS
467
of the terms of the contract. In my opinion,
the defendant's action constitutes misuse and
abuse of the process of the Court."
The appellant attached the deed of dissolution to
the plaint he filed at Asansol. Of course, he did
not state specifioq,lly in the plaint about tho proviso
with respect to the forum for the decision of the
dispute. Even if be h<td mentioned the term, that
would have ma.de no difference to the Asansol
Court entertaining the suit, ao it is not disputed
in these proceedings that both the Inclore and
Asa.nsol Courts could try tho suit in spite of the
agreement. The appellant's institution of the suit
at Asansol cannot be said to be in anticipation of
the suit at Indore, which followed it by a few
months. There is nothing on the record to indicate
that the appellant knew, at tho time of his instituting the suit, that the respondent was cont('T.lplating tho institution of a suit at Indore. The notices
which the respondent gave to the appellant were
in December 1945. The suit was filed at Asansol
in August 1948, more than two years and a half
after the exchange of correspondence referred to in
the plaint filed at Asansol.
In fact, it is the conduct -of the respondent
in applying for the injunction
in September
1953, knowing
full
well of the
order
.of
the
Calcutta
High
Court
confirming
the
order refusing stay of the Asa.nsol suit and directing that Court to proceed with the decision of tho
issue of jurisdiction at an early date, which 0an be
said to amount to an abuse of the process of the
Court. It was really in the respondent's interest
if he was sure of his ground that the i11sue of jurisdiction be decided by the Asa.nsol Court expeditiously, as ordered by tho Calcutta High Court in
May 1953. If the Asa.nsol Court had clearly no
jurisdiction to try the suit in view of the terms of
the deed of di8solution, the decision of that issue
19~1
Manoharlal Chopra
v.
Rai Bahadur Rao
Raja Seth Hira/al
Raghubar Dayal J,
1961
Manow/al ~r•
v.
Rai BaMdur Rao
Raj• Stt.h Hiralal
R4.ehuba1 Dayal J.
468 SUPREME COURT REPORTS [1962] SUPP.
would have finished the Asansol suit for ever. He,
however, appears to have S.'ll'Oided S. deciRiOil of
that iBBue from that Conrt and, insread of submitting to the order of the Calcutta High Court, put in
this application for injunction. It is not understandable why the appellant did not clearly state
in his objection to the application what the High
Court of Calcutta had ordered. That might have
led the consideration of tho question by th<> Indore
Court in a different perspective.
It is not right to base an order of injunction,
under s. 151 of the Code, restraining the plaintiff
from proceeding with his suit at Asansol, on the
consideration that the terms of the deed of dissolution between the parties make it a valid con tract
and the institution of the suit at Asansol is in
breach of it.
The question of jurisdiction of the
Asansol Court over the subjeot matter of the snit
before it will be decided by that Court. The Indore
Court oannot docide that question.
Further, it is
not for the Indoro Court to see that the appellant
observes the terms of the contract and does not file
the suit in any other Court. It is only in proper
proceedings when the Court considers alleged breach
of contract and gives redress for it.
For the purposes of the present appeal, we
as~ume that the jurisdiction of the Asansol Court
is not ou~ted by the provisions of the proviso in
the deed of diSBolution, even though that proviso
expresses the choice ')f the parties for having their
rl.isputes decided in the Court at Indore.
The
appellant therefore could choose the forum in which
to file his suit. He chose tho Court at Asansol, for
his suit. The mere faot that Court is situate at a
long distance from the place of residence of t.hc 1 espondent is not sufficient to e;tablish that the suit
ha.s been filed iu that Court in order to put the res·
pondent to trouble and ltarnssment fl.nd to unneceRsary expense.
-
(1) S.C.R. SUPREME COURT REPORTS
469
It cannot be denied that it is for the Court
to control the proceedings of the suit before it and
not for a party, and that therefore, an injunction
to a party with respect to his taking part in the
proceedings of the suit would be putting that party
in a very inconvenient position.
It has been said that the Asansol Court would
not act in a way which may put the appellant in a
difficult position and will show a spirit of coopera·
tion with the Indore Court. Orders of Court are
net ordinarily based on such considerations when
there be the least chance for the other Court not to
. think in that way. The narration of facts will indicate how each Court ha~ been acting on its own
view of the legal position and the conduct of the
parties.
There have been cases in the past, though
few, in which the Court took no notice of such injunction orders to the party in a suit before them.
They are: Menon v. Parvathi Ammal(1), Harbhagat Kaur
v. Kirpal Singh(') and Shiv Charan Lal v. Phool
Chand ('). In the last case, the Agra Court issued an
injunction against the plaintiff of a suit at lJelhi
restraining him from proceeding with that suit.
The Delhi Court, holding that the order of the
Agra Court did not bind it, decided to proceed with
the suit·. This action was supported by the High
Court. Kapur J., observed at page 248:
"On the facts as have been proved it does
appear rather extra-ordinary that a previously instituted suit should be sought to be stayed by adopting
this rather extraordinary
procedure."
It is admitted that the Indore Court could
not have issued an injuction or direction to the
Asansol Court not to proceed with the suit. The
effect of issuing an injunction to the plaintiff of the
(1) A.l.R. 1950 Mad. 373.
(2) A.l.R.\1951 Pepsu 78.
(3) A.I.R. 1952 Puoj. 247.
1961
.•t anoharlal Chopra
v.
Rai Bahadur Rao
Raja Seth Hiralal
Raghubar Dayal .T.
1961
t.l anoharlol Chop1t1
v.
Roi Bahadur Rao
ltaja Stth Hiralal
Jtaghubor D'!1al J.
470 SUPREME OOUR'f REPORTS [1962] SUPP.
~uit at Asansol, in<lirectly achieves the objeet which
nn injunction to the Court would have <lone. A
court ought not to nchievo indirectly what it cannot do <lircctly. The plaintiff, who has been res·
trained, is expected to bring the restraint order to
the notice of the Court.. If that Court, as expected
by the Indore Court, respects the injunction order
~gainst the appellant and does not proceed with
the suit., the injunction order issued to the appellant who is th<> plaintiff in that suit is as effective
an order for atT<'Fting the progreBB of that suit as
an injun('tion order to tho Court would have been.
If tht> Court insists on proceeding with the suit, the
plaintiff will have cit.her to disobey the restraint
order or will run the risk of bis suit being dismiseed
for want of pro"ecution. Either of these results is
a consequence which 1111 order of the Court should
not ordinarily lead to.
The suit at Indore which had been instituted
later, could be stayed in view of s. 10 of the Codo.
The provisions of that section are clear, definite
and mandatory. A Court in which a subsequent
suit has been filed is prohibited from proceeding
with the trial of that suit in certain specified circumstances.