Q. What are the principles to be followed for grant of interim injunction?

It is well-settled principle law that interim relief can always be granted in the
aid of and as ancillary to the main relief available to the party on final
determination of his rights in a suit or any other proceeding. Therefore, a court
undoubtedly possesses the power to grant interim relief during the pendency of
the suit. Temporary injunctions are thus injunctions issued during the pendency
of proceedings.
An injunction is a judicial proceeding whereby a party is required to do, or to
refrain from doing, any particular act. It is a remedy in the form of an order of the
Court addressed to the particular person that either prohibits him from doing or
continuing to do a particular act (prohibitory injunction); or orders him to carry
out a certain act (mandatory injunction).
In Food Corporation of India v. Sukha Deo Prasad, AIR 2009 SC 2330, the
landlord obtained loan from Bank for purpose of constructing godowns for the
appellant-tenant. On default by landlord, the Bank filed a suit for recovery of loan
with interest. The Bank filed application for direction to tenant to deposit arrears
of rent and to continue to deposit rents in court and in default to pay interest. Said
application would not fall under rules 1 and 2 of Order XXXIX. Therefore, it is
held that the interim direction to tenant to deposit arrears of rent in court and to
continue to deposit rents in court with condition that in default tenant would have
to pay interest is not an injunction. A direction to pay money either by way of
final or interim order is not considered to be an injunction.
Injunctions are of two kinds.--
(i) Temporary and
(ii) Permanent.
A permanent injunction restrains a party forever from doing the specified act
and can be granted only on merits at conclusion of the trial after hearing both the
parties to the suit. It is governed by sections 30 to 42 of the Specific Relief Act,
1963.
On the other hand, a temporary or interim injunction is that which, restrains a
party temporarily from doing the specified act and can be granted only until the
disposal of the suit or until the further orders of the Court. It is regulated by the
provisions of Order XXXIX of the Code of Civil Procedure, 1908 and may be
granted at any stage of the suit.
Where Temporary Injunction is Granted
 The granting of temporary injunction is a matter of discretion of the Court. The
discretion is to be exercised judicially according to well-settled principles.
Rule 1 of Order XXXIX of the Code of Civil Procedure, 1908 provides that where
in any suit it is proved by affidavit or otherwise:
(a) that any property in disputed in a suit is in danger of being wasted, damaged
or alienated by any party to the suit or wrongfully sold is of a decree, or
(b) that the defendant threatens or intends to remove or dispose of his property
with a view to defrauding his creditors, or
(c) that the defendant threatens or dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in the suit, or
(d) where a court is of the opinion that the interest of justice so requires [Manohar
Lai v. Rai Bahadur Rao Raja Seth Hiralal]
It is not the plaintiff alone who can apply for an interim injunction. A defendant
also may make an application for grant of an injunction against the plaintiff.
Rule 2 of Order XXXIX provides injunction to restrain or continuance of
breach: (1) In suit for restraining the defendant from committing a breach of
contract or otherwise 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 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.
(2) The Court may by order grant such injunction on such terms as to the
duration of the injunction, keeping an account, giving security or otherwise, as
the Court thinks fit.
Conditions for grant of Temporary injunctions
In case of Kashinath Sansthan v. Srimad Sudhindra Thirtha Swamy, the court
prescribed the criteria for temporary injunction as follows:
"In order to grant an order of injunction, the party who seeks for grant of such
injunction has to prove that he has made out a prima facie case to go for trial, the
balance of convenience is also in his favour and he will suffer irreparable loss and
injury if injunction is not granted. But it is equally well-settled that when a party
fails to prove prima facie case to go for trial, question of considering the balance
of convenience or irreparable loss and injury to the party concerned would not be
material at all, that is to say, if that party fails to prove prima facie case to go for
trial, it is not open to the court to grant injunction in his favour even if he has
made out a case of balance of convenience being in his favour and would suffer
irreparable loss and injury if no injunction is granted.
Principles Governing Temporary Injunction
Before granting of the temporary injunction, the following considerations are
required to be satisfied:
(i) There is a prima facie case in favour of the plaintiff and against the defendant.
(ii) That irreparable injury is likely to be caused to the plaintiff which cannot be
compensated for in terms of money.
(iii) That the balance of convenience lies in favour of the plaintiff and against the
defendant.
(iv) The conduct of the plaintiff should be fair and honest.
Prima facie
Explaining the ambit and scope of the connotation "prima facie" case, in Martin
Burn Ltd. v. R.N. Banerjee, the Supreme Court observed:
"A prima facie case does not mean a case proved to the hilt but a case which
can be said to be established if the evidence which is led in support of the same
were believed while determining whether a case is prima facie one or not, the
relevant consideration is whether on the evidence led it was possible to arrive at
the conclusion in question and not whether that was the only conclusion which
could be arrived at on that evidence."
In other words, the Court must be satisfied that there is a bona fide dispute
raised by the applicant and on the facts before it there is a probability of the
applicant being established to the relief claimed by him.
In Mandati Ranganna v. T. Ramachandra, it is held that while considering an
application for grant of injunction, the Court will not only take into consideration
the basic elements in relation thereto, viz., existence of a prima facie case, balance
of convenience and irreparable injury, it must also take into consideration the
conduct of the parties. Grant of injunction is an equitable relief. A person who
had kept quiet for a long time and allowed another to deal with the properties
exclusively, ordinarily would not be entitled to an order of injunction. The Court
will not interfere only because the property is a very valuable one. The Court
dealing with such matters must make all endeavours to protect the interest of the
parties.
Non-compliance or Breach of Injunction
Q. What are consequences of disobedience or breach of injunction?
 (1) In non-compliance or breach of order made under rules 1 and 2, the Court
granting the injunction or making the order or any court to which the suit
proceeding is transferred, may order the property of such wrongdoer to be
attached and may also order such person to be detained in civil prison for a term
not exceeding 3 months unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force more than one
year, at the end of which time, if the disobedience or breach continues, the
property attached may be sold and out of the proceeds, the Court may award such
compensation as it thinks fit to the injured party and shall pay the balance, if any,
to the party entitled thereto.
Thus, the consequences of breach of injunction are:
(i) The ordering of the attachment of property in question.
(ii) Detention of the petition in civil prison.
(iii) In the case where the breach continues for more than a certain period, the
property attached may be sold.
A person is liable to the proceedings against under Order XXXIX, rule 2A even
if he was not personally a party to the suit provided he is shown to have been
agent or servant of the defendant and to have violated the order of injunction
inspite of the knowledge that there was such an order [Ram Prasad Singh v.
Subhodh Prasad Singh, Brijendra Prasad Narain Singh v. State of Bihar].
The expression 'person' occurring in sub-rule (2A) was employed merely
compendiously to designate everyone in group, defendant, his agent, servants and
workman and not for excluding any defendant against whom the order of
injunction has primarily been passed otherwise the order of injunction would be
frustrated and the power rendered ineffective and unmeaning if the machinery for
enforcement specially enacted didn't extend to everyone against whom the order
of injunction is directed (Ram Prasad Singh v. Subhodh Prasad Singh).
Shiv Kumar Chadha (Appellant) v. M.C.D., appeals have been filed against an
order of Delhi High Court directing M.C.D. to issue notices to buildings where
illegal constructions have been made. Appellants sought interference of Supreme
Court with that part of the order stating:
"No civil suit will be entertained by any Court in Delhi in respect of any action
taken or proposed to be taken by corporation with regard to sealing for demolition
of any building or any part thereof." Any person aggrieved by order of sealing/or
demolition however, have the right of filing appeal to Appellate Tribunal under
the Municipal Act, which had jurisdiction to grant interim relief. The unburned
order clearly ousts the jurisdiction of a court in Delhi to entertain suit in
connection with demolition of any part of building which according to
corporation is unauthorised and illegal.
The Apex Court discussed law on interim relief (Temporary injunction):
The primary object of filing suit challenging validity of the order of demolition
is to restrain such demolition with the intervention of the court. In such a suit the
plaintiff is more interested in getting an order of interim injunction.
Grant of injunction is within the discretion of the court and such discretion is
to be exercised in favour of plaintiff only if it is proved to the satisfaction of the
court that unless defendant is restrained by an order of injunction, an irreparable
injury be caused to plaintiff. It is a matter of common knowledge that on many
occasions even public interest also suffers in view of interim orders of injunction,
because persons in whose favour such orders are passed are interested in
perpetuating the contraventions made by them by delaying, the final disposal of
such applications. The court should be always willing to extend its hand to protect
citizen who is being wronged or is being deprived of the property without any
authority of law or without following the procedure which are fundamental and
vital in nature.
Power to grant injunction is extraordinary power vested in the Court to be
exercised taking into consideration facts and circumstances of a particular case.
The Court should be more cautious when the said power is being exercised
without notice of hearing the party who is to be affected by the order so passed.
The imperative nature of the proviso has to the judged from contents of rule 3
to Order XXXIX of the Code of Civil Procedure, 1908. Before the proviso
aforesaid was introduced. Rule 3 said "the Court shall in all cases, except where
it appeals that the object of granting the injunction would be defeated by delay,
before granting an injunction, direct notice of application for same to be given to
the opposite party." The proviso was introduced to provide a condition, where
court proposes to grant an injunction without giving notice of application to
opposite party being of opinion that the object of granting injunction itself shall
be defeated by delay. The requirement of recording reason for grant of ex parte
injunction, cannot be held to be mere formality. The requirement is consistent
with the principle, that a party to a suit, who is being restrained from exercising
a right which such party claims to exercise either under a statute or under common
law, must be informed why instead of following requirement of rule 3. The
procedure prescribed in proviso is followed.
The Parliament has prescribed a particular procedure for passing of an order of
injunction without notice to the other side, under exceptional circumstance. Such
ex parte order have far reaching effect, as such a condition has been imposed that
Court must record reason before passing such order. If it is held that the
compliance with the proviso aforesaid is optional and not obligatory, the
introduction of proviso by the parliament shall be a justice exercise and that part
of rule 3 will be purposeless for all practical purposes. Ex parte injunctions are
for cases of real urgency, where there has been a true impossibility of giving
notice of motion.
Ex parte Ad Interim Injunction (rule 3 of Order XXXIX)
Rule 3 of Order XXXIX provides that:
"The Court shall in all cases, except where it appears that the object of granting
the injunction would be defeated by the delay, before granting an injunction,
direct notice of the application for the same to be given to the opposite party:
Q. What are the principles for grant of 'ex parte ad-interim Injunction'
under CPC?
Provided that, where it is proposed to grant an injunction without giving
notice of the application to the opposite party, the Court shall record the reasons
for its opinion that the object of granting the injunction would be defeated by
delay, and require the applicant--
(a) to deliver to the opposite party, or to send to him by registered post,
immediately after the order granting the injunction has been made, a copy of
the application for injunction together with--
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day
immediately following that day, an affidavit stating that the copies aforesaid
have been so delivered or sent."
Therefore, this rule requires the applicant to issue notice to the opposite party
before injunction is granted. Though, the Court has power to grant ex parte
injunction without issuing notice or hearing the party who will be affected by
such order, the said power can be exercised under exceptional circumstances.
It is important to note that where it is proposed to grant an injunction without
giving notice of the application to the opposite party, i.e., grant of ex parte ad
interim injunction the Court shall record the reasons for its opinion that the
objects of granting the injunction would be defeated by delay and require the
applicant:
(1) to deliver the opposite party or to send him by registered post immediately
after the order granting the injunction has been made, copy of the application
for injunction along with:
(i) a copy of affidavit filed in support of the application.
(ii) a copy of plaint; and
(iii) copy of documents on which applicant relies.
(2) In Morgan Stanley v. Kartic Das, the Supreme Court indicated the factors
which should weigh with the Court in grant of ex parte injunction:
(i) whether irreparable or serious mischief will ensue to the plaintiff,
(ii) whether the refusal of ex parte injunction would involve greater injustice than
the grant of it would involve.
(iii) the Court will also consider the time at which the plaintiff first had notice of
the act complained so that the making of improper order against a party in his
absence is prevented.
(iv) that the Court will consider whether the plaintiff had acquiesced for sometime
and in such circumstances it will not grant ex parte injunction.
(v) the Court would expect a party applying for ex parte injunction to show utmost
good faith in making the application.
(vi) even if granted, the ex parte injunction would be for a limited period of time.
(vii) general principles like prima facie case, balance of convenience and
irreparable loss would also be considered by the Court. The purpose of rule 3,
Order XXXIX is to enable the opposite party to show cause against issuance
of such injunction and if injunction issued without notice, to enable the
opposite party to file objections thereto and by this to prevent the petitioner to
retain undue advantage of the situation and abuse of the process of law.
CASE LAWS
In Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswani, the discretion of
court in granting of injunction was interpreted as that once the court of first
instance exercises its discretion to grant or refuse to grant relief of temporary
injunction and the said exercise of discretion is based upon objective
consideration of the material placed before the court and is supported by cogent
reasons, the appellate court will be loath to interfere simply because on a de novo
consideration of the matter it is possible for the appellate court to form a different
opinion on the issues of prima facie case, balance of convenience inreparable
injury and equity. Unless the appellate court comes to the conclusion that the
discretion exercised by the trial court in refusing to entertain the prayer for
temporary injunction is vitiated by an error apparent or perversity and manifest
injustice has been done, there will be no warrant for exercise of power.
In Manohar Lal v. Rai Bahadur Rao Raja Seth Hira Lal, the issue involved
was, i.e., whether the Court could exercise its inherent power when there was
specific provisions in the Code of Civil Procedure, 1908 for issuance of
injunctions viz. section 94 and Order XXXIX. Relevant portion of section 94
reads "In order to prevent the ends of justice from being defeated the Court may,
if it is so prescribed, grant a temporary injunction."
In this case: The appellant and the respondent entered into a partnership at
Indore for working coal mines at Kajoragram and manufacture of cement, etc., in
the name and style of 'Diamond' industries. The head office of the partnership was
at Indore. The partnership was dissolved by a deed of dissolution. Under the terms
of this deed, the appellant made 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 business. The second proviso at the end of the
covenants in the deed of dissolution was "................parties entered into the
partnership agreement at Indore all disputes and differences whether regarding
money or also their rights and liabilities of the parties hereto shall be decided
amicably or in court at Indore and no where else."
The appellant instituted suit in the Court of the subordinate Judge at Asansol
against the respondent for the recovery of Rs. 1,00,000 on account of his share in
the capital and assets of partnership firm and Rs. 18,000 as interest for detention
of the money or as damages or compensation for wrongful withholding of
payment. The main ground given by the respondent was that the accounts
submitted by the appellant had not been properly kept and that many entries
appeared to be wilfully falsified, evidently with mala fide 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. The
respondent filed a petition under section 34 of the Arbitration Act in the Asansol
Court praying for the stay of suit in view of Arbitration agreement meanwhile the
respondent filed civil suit in the Court of District Judge, Indore against the
appellant and prayed for a decree for Rs. 1,90,519 and further interests on the
footing of settled account in the alternative for a direction to the appellant to
render full and true accounts of the partnership. The respondent applied in the
Court at Asansol for the stay of the suit in the exercise of its inherent powers.
 In the context of above given facts issue was struck. Has this Court jurisdiction
to entertain and try this suit? The Court of Asansol held that there could be no
scope for acting under section 151 of the Code of Civil Procedure, 1908, as
section 10 of the Code of Civil Procedure, 1908 had no application to the suit, it
having been instituted earlier than the suit at Indore. The High Court of Calcutta
confirmed this order.
The Indore Court issued interim injunction under Order XXXIX of the Code
of Civil Procedure, 1908 to the appellant restraining him from proceeding with
his Asansol suit pending decision of the Indore suit. It may be mentioned here
that the respondent didn't state in his application that his application for the stay
of suit at Asansol had been finally dismissed by the High Court of Calcutta.
Against the order of Indore Court the appellant went in appeal to the High Court
of Judicature at Madhya Bharat.
The High Court dismissed the appeal. The learned Judges agreed with the
contention that Order XXXIX didn't apply to the facts of the case. They, however
held that the order of injunction could be issued in the exercise of inherent powers
of the Court under section 151 of the Code of Civil Procedure, 1908. It is against
this order that the appellant preferred this appeal by special leave.
The Supreme Court observed as follows:
(i) It is well-settled that the provisions of the Code of Civil Procedure are not
exhaustive, for the simple reason that the legislature is incapable of
contemplating all the possible circumstances which may arise in future
litigation and consequently for providing the procedure for them.
(ii) No party has a right to insist on the Court's exercising inherent jurisdiction
and the Court exercises it only when it considers it absolutely necessary for the
end of justice to do so. The powers are to be exercised in exceptional
circumstances for which court lays down no procedure.
(iii) There is no such expression in section 94 which expressly prohibits the issue
of temporary injunction in circumstances not covered by Order XXXIX or by
any rules made under the Code likewise there is nothing in Order XXXIX
which provides specifically that temporary injunction is not to be issued in the
cases which are not mentioned in those rules.
(iv) Section 151, Code of Civil Procedure, 1908 itself says that nothing in the
Code of Civil Procedure, 1908 shall be deemed to limit or otherwise affect the
inherent power of the Court to make orders necessary for the ends of justice.
(v) The inherent power has not been confirmed 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 recognises the existences of the inherent
power of the Court there is no question of implying the powers outside the
limits of this Code.
(vi) The case would be different where the rights of an individual are affected. In
such cases, the specific provisions of Code of Civil Procedure, 1908 are to be
used without any intervention by way of inherent powers of the Court. Inherent
powers are not the powers over the substantive rights which any litigant
possess but the same may definitely be used for procedural matter such as a
case of grant of temporary injunctions.
The Court held that the suit at Indore which had been instituted later could be
stayed in view of section 10 of the Code of Civil Procedure, 1908. The provisions
of that section are clear, definite and mandatory. A court in which subsequent suit
has been filed is prohibited from proceeding with the trial of the suit in certain
specified circumstances. When there is a special provision in the Code of Civil
Procedure for dealing with the contingencies of two such suits being instituted,
recourse to the inherent powers under section 151 is not justified.
Shah, J. agreed with the conclusions that the appeal must succeed but he did
not agree with the view that the Civil Courts have inherent jurisdiction in cases
not covered by Order XXXIX.
In Thomson Press (I) Ltd. v. M/s Advertising Plus, Order III, rules 1 and 2 were
in issue. Removal of staircase, errected in open space on road side. Stair-case
constructed without permission of MCD is liable to be removed. Defendant
directed to remove staircase erected in open space on road side within two
months. In event of failure to do so MCD, shall remove. As the said stair-case
constructed by the dependent without its permission of the MCD. It was held that
the plaintiff not to create any obstruction or hindrance for defendant in use of
existing staircase on back side of property.
Interlocutory Orders
Interlocutory orders are orders passed by a court during the pendency of a suit.
Such orders are made vis-a-vis a suit while it is receiving the active consideration
of the Court and before the final adjudication upon subject-matter of suit. They
relate to matters of procedure as they arise during the trial of the suit or in the
course of execution proceedings. They are passed to assist the parties in the
prosecution of their case, or for the purpose of protecting the subject-matter of
the suit or for ensuring the determination of the merits of the case. They, however,
do not determine the substantive rights of the parties in respect of subject-matter
of the suit.
 Thus, like temporary injunction, interlocutory orders are intended to prevent
the ends of justice from being frustrated (by the acts of parties to a suit). Rules 6
to 10 of Order XXXIX mention certain interlocutory orders. The Court has the
power to order interim sale of movable property (subject-matter of suit) which is
subject to speedy and natural decay (rule 6). It can order for the detention,
preservation or inspection of any property (subject-matter of suit (rule 7). Order
directing the appointment of a receiver also fall within the meaning of
interlocutory orders.
Modi Entertainment Network v. W.S.G. Cricket P.T.E. Ltd., in this case the
Hon'ble Apex Court laid down the following principles:
(1) In exercising discretion to grant an anti-suit injunction the Court must be
satisfied of the following aspects; (a) the defendant, against whom injunction
is sought, is amenable to the personal jurisdiction of the Court; (b) if the
injunction is declined the ends of justice will be defeated and injustice will be
perpetuated; and (c) the principle of comity-respect for the Court in which the
commencement or continuance of action/proceeding is sought to be restrained-
must be borne in mind;
(2) in a case where more forums than one are available, the court in exercise of
its discretion to grant anti-suit injunction will examine as to which is the
appropriate forum (forum conveniens) having regard to the convenience of the
parties and may grant anti-suit injunction in regard to proceeding which are
oppressive or vexatious or in a forum non-convenience;
(3) where jurisdiction of a court is invoked on the basis of jurisdiction clause in a
contract, the recitals therein in regard to exclusive or nonexclusive jurisdiction
of the Court of choice of the parties are not determinative but are relevant
factors and when a question arises as to the nature of jurisdiction agreed to
between the parties the Court has to decide the same on a true interpretation of
the contract on the facts and circumstances of each case;
(4) a court of natural jurisdiction will not normally grant anti-suit injunction
against a defendant before it where parties have agreed to submit to the
exclusive jurisdiction of a court including a foreign court, a forum of their
choice in regard to the commencement or continuance of proceedings in the
Court of choice, save in an exceptional case for goods and sufficient reasons,
with a view to prevent injustice in circumstances such as which permit a
contracting party to be relieved of the burden of the contract; or since the date
of the contract the circumstances or subsequent events have made it impossible
for the party seeking injunction to prosecute the case in the Court of choice
 because the essence of the jurisdiction of the Court does not exist or because
of a vis major or force majeure and the like.
(5) where parties have agreed, under a non-exclusive jurisdiction clause, to
approach a neutral foreign forum and be governed by the law applicable to it
for the resolution of their disputes arising under the contract, ordinarily no anti-
suit injunction will be granted in regard to proceedings in such a forum
conveniens and favoured forum as it shall be presumed that the parties have
thought over their convenience and all other relevant factors before submitting
to nonexclusive jurisdiction of the Court of their choice which cannot be
treated just an alternative forum;
(6) a party to the contract containing jurisdiction clause cannot normally be
prevented from approaching the Court of choice of the parties as it would
amount to aiding breach of the contract; yet when one of the parties to the
jurisdiction clause approaches the Court of choice in which exclusive, or non-
exclusive jurisdiction is created, the proceedings in that Court cannot per se be
treated as vexatious or oppressive nor can the Court be said to be forum non-
conveniens; and
(7) the burden of establishing that the forum of choice is a forum non-conveniens
or the proceedings therein are oppressive or vexatious would be on the party
so contending to aver and prove the same.
In Dalpat Kumar v. Prahlad Singh,
It was observed that:
Order XXXIX, rule 1(c) provides that temporary injunction may be granted
where, in any suit, it is proved by the affidavit or otherwise, that the defendant
threatens to disposses the plaintiff or otherwise cause injury to the plaintiff in
relation to any property in dispute in the suit, the Court may by order grant a
temporary injunction to restrain such act or make such other order for the purpose
of staying and preventing........ or dispossession of the plaintiff or otherwise
causing injury to the plaintiff in relation to any property in dispute in the suit as
the Court thinks fit until the disposal of the suit or until further orders. Pursuant
to the recommendation of the Law Commission clause (c) was brought on statute
by section 88(i)(c) of the Amending Act 104 of 1966 with effect from 1st
February, 1977. Earlier thereto there was no express power except the inherent
power under section 151 of the Code of Civil Procedure, 1908 to grant ad interim
injunction against dispossession. Rule 1 primarily concerns with the preservation
of the property in dispute till legal rights are adjudicated. Injunction is a judicial
process by which a party is required to do or to refrain from doing any particular
act. It is in the nature of preventive relief to a litigant to prevent future possible
injury. In other words, the Court in exercise of the power of granting ad interim
injunction is to preserve the subject-matter of the suit in the status quo for the
time being. It is settled law that the grant of injunction is a discretionary relief.
The exercise thereof is subject to the Court satisfying that (1) there is a serious
disputed question to be tried in the suit and that an act, on the facts before the
Court, there is probability of his being entitled to the relief asked for by the
plaintiff/defendant; (2) the Court's interference is necessary to protect the party
from the species of injury. In other words, irreparable injury or damage would
ensure before the legal right would be established at trial; and (3) that the
comparative hardship or mischief or inconvenience which is likely to occur from
withholding the injunction will be greater than that would be likely to arise from
granting it.
APPEALS
Q. Discuss the purpose of 'appeal'. What are the essential ingredients of an
appeal?
The expression 'appeal' has not been defined any where under the Code of Civil
Procedure, 1908. However, it may be defined as "the judicial examination of
decision by a Higher Court of the decision of an inferior court".
The Privy Council in Nagendra Nath v. Suresh Chandra, however, held that
"any application by a party of an Appellate Court, asking to set aside or reverse a
decision of a subordinate court, is an appeal within the ordinary meaning of the
term. It is a right of entering a superior court and invoking its aid and interposition
to redress an error in the Court below"; Dayawati v. Inderjit.
Essential Ingredients of an Appeal
Every appeal has three basic/essential elements:
(i) an adjudication of a suit by a court;
(ii) an aggrieved person (not necessarily a party to the proceedings);
(iii) a review body ready and willing to entertain a appeal.
Section 96 of the Code of Civil Procedure, 1908 provides for the 'appeal from
original decree' as under:
(1) Save where otherwise expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie from every decree
passed by any court exercising original jurisdiction to the Court authorized to
hear appeals from the decisions of such court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of
parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of
the nature cognizable by Courts of Small Causes, when the amount or value of
the subject-matter of the original suit does not exceed ten thousand rupees.
Section 96 of the Code of Civil Procedure, 1908 as mentioned above
distinguishes the cases fit as well as unfit for appeal. It does not enumerate the
person who may file appeal. Thus, as per the section, the right to appeal is
recognized:
(a) from every decree passed by court of original jurisdiction;
(b) from an original decree which is passed ex parte, i.e., without hearing the
respondent(s);
The vested right of appeal is destroyed when:
(a) the original decree is shown to have been passed with the consent of parties.
The rational behind this is, it creates an estoppel between the parties as a
judgment on consent.
(b) decree passed is in petty suits where the amount of value of suit does not
exceed ten thousand rupees.
Nature of Right of Appeal
Q. Discuss the nature of right of appeal.
A right of appeal is not a natural inherent right, rather appeal is a creature of
statute and there is no right to appeal unless clearly granted and in express terms
by statute. In other words, a right of appeal infers in no one and therefore an
appeal for its maintainability must have the clear authority of law; Ganga Bai v.
Vijay Kumar. The right of appeal, which is a statutory right, can be conditional
and qualified. It cannot be said that such a law would be violative of article 14 of
the Constitution. If the statute does not create any right of appeal, no appeal can
be filed. The right of appeal inheres in no one and, therefore, for the
maintainability of an appeal there must be authority of law; Gujarat Agro
Industries Co. Ltd. v. Municipal Corp. of City of Ahmedabad.
It is a vested right and accrues to the litigant and exists as on and from the date
the lis commences and although it may be actually exercised when the adverse
judgment is pronounced. A single right of appeal is more or less a universal
requirement. It is based on the principle that all men are fallible and judges are
human beings who may commit a mistake. An appeal is a continuation of a suit.
An appeal from an original decree is called a first appeal. An appeal from an
appellate decree is called a second or special appeal. The Appellate Court in case
of first appeal can re-examine the questions of fact and law and may even re-
appreciate evidence. The powers of first Appellate Courts are coextensive with
those of Civil Courts of original jurisdiction. First appeal may be filed on a
question of law or on a mixed question of fact and law which arise in the case;
Manikchandra v. Devdas Nandy.
Who may File an Appeal?
The following persons are entitled to file appeal under section 96 of the Code
of Civil Procedure, 1908:
(i) A party to a suit, who is aggrieved or adversely affected by the decree, or if
such party is dead his legal representative.
(ii) A person claiming under a party to the suit a transfer of the interests of such
party, who so far as such interest is concerned, is bound by the decree, provided
his name is entrusted on the record of the suit.
(iii) A guardian ad litem appointed by the Court in a suit by or against a minor.
(iv) Any other person, with the leave of the Court, if he is adversely affected by
the decree.
The ordinary rule is that only a party to a suit adversely affected by the decree
or any of his representative in interest may file an appeal. But a person who is not
a party to a decree or order if he is either bound by the order or is aggrieved by it
or is prejudicially affected by it; Jatan Kanwar v. Golcha Properties.
Maintainability of Appeal
(i) Appeal against preliminary decree.--
All decrees are appealable unless barred by the Code of Civil Procedure, 1908.
Therefore, an appeal lies against preliminary decree as final decree but as a
machinery for the implementation of a preliminary decree. Failure to appeal
against preliminary decree precludes the aggrieved party from challenging the
final decree. Hence, no appeal lies against the final decree, where no appeal was
filed against preliminary decree.
(ii) Appeal against judgment.--
Appeal against judgment is not maintainable under the Code of Civil
Procedure, 1908. However, the aggrieved party, may file appeal against judgment,
if a decree is not drawn up by the Court.
(iii) Appeal against ex parte decree.--
 An appellant in an appeal against ex parte decree can question the validity of
order and plead to adjourn and proceed with the suit since the corrective
jurisdiction of the Appellate Court includes consideration of procedural errors;
Muttangi Ranga Nayakamma v. WKV Mahalakhmi. The Code prescribes for
setting aside of the ex parte decree under Order IX, rule 13 and when a plea under
the said provision fails, an appeal is specifically provided under clause (d) of
Order XLIII, rule 1 of the Code of Civil Procedure, 1908 against an order of a
Trial Court refusing to set aside ex parte decree.
(iv) Appeal against 'Finding' and 'Dead Person'.--
A 'Finding' recorded by a court of law may or may not amount to a 'Decree' or
an 'Order' where such a finding does not amount to a 'Decree' or an 'Order', no
appeal lies against such adverse finding. Similarly, no appeal can be instituted
against 'Dead person'.
SECOND APPEALS
Q. When a 'second appeal' is maintainable before the High Court?
Sections 100 to 103, 107, 108 and Order XXXII of the Code of Civil Procedure,
1908 deal with second appeals. According to section 100 of the Code of Civil
Procedure, 1908:
(1) Save as otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any court subordinate to the High Court, if the High
Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely
state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved
in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent
shall, at the hearing of the appeal, be allowed to argue that the case does not
involve such question:
Provided that nothing in this sub-section shall be deemed to take away or
abridge the power of the Court to hear, for reasons to be recorded, the appeal on
any other substantial question of law, not formulated by it, if it is satisfied that the
case involves such question.
 Section 100 of the Code of Civil Procedure as amended by the Amendment
Act, 1976, has drastically changed and considerably curtailed the scope of second
appeal. Under the old section a second appeal was maintainable on any of the
three grounds set out in clauses (a), (b) or (c) which were liberally interpreted but
as of now, the scope and ambit of the jurisdiction of High Court in cases of second
appeal is very much narrowed down. From section 100 the following
consequences ensue:
(i) The High Court must be satisfied that the case involved a Substantial question
of Law [Section 100(1)].
(ii) The Memorandum of appeal must precisely state such question [Section
100(3)].
(iii) The High Court at the time of admiring the appeal should formulate such
question [Section 100(4)].
(iv) The appeal shall be heard only on that question [Section 100(5)].
(v) At the hearing of appeal, the respondent can agree that the case does not
involve such question [Section 100(5)].
(vi) The High Court is, however, empowered to hear the second appeal on any
other substantial question of law, not formulated by it, if it is satisfied that the
appeal involves such question. The High Court however, has to record reasons
for doing so. [Proviso to section 100(5)].
Under section 100 of the Code of Civil Procedure, 1908 after 1976
Amendment, it is essential for the High Court to formulate a substantial question
of law and it is not permissible to reverse the judgment of the first Appellate Court
without doing so; Ishwar Dass Jain v. Sohan Lai.
Yet again in Roop Singh v. Ram Singh, this court has expressed that the
jurisdiction of a High Court is confined to appeals involving substantial question
of law. Para 7 of the said judgment reads:
It is to be reiterated that under section 100 of the Code of Civil Procedure, 1908
jurisdiction of the High Court to entertain a second appeal is confined only to
such appeals which involve a substantial question of law and it does not confer
any jurisdiction on the High Court to interfere with pure questions of fact while
exercising its jurisdiction under section 100 of the Code of Civil Procedure, 1908.
That apart, at the time of disposing of the matter the High Court did not even
notice the question of law formulated by it at the time of admission of the second
appeal as there is no reference of it in the impugned judgment. Further, the fact
findings courts after appreciating the evidence held that the defendant entered
into the possession of the premises as a batai, that is to say, as a tenant and his
possession was permissive and there was no pleading or proof as to when it
became adverse and hostile. These findings recorded by the two courts below
were based on proper appreciation of evidence and the material on record and
there was no perversity, illegality or irregularity in those findings. If the defendant
got the possession of suit land as a lessee or under a batai agreement then from
the permissive possession it is for him to establish by cogent and convincing
evidence to show hostile animus and possession adverse to the knowledge of the
real owner. Mere possession for a long time does not result in converting
permissive possession into adverse possession; Thakur Kishan Singh v. Arvind
Kumar. The position has been reiterated in Kanahaiyalal v. Anupkumar; Premabai
v. Jnaneshwar Ramakrishna Patange, Chadat Singh v. Bahadur Rama, Mathakala
Krishnaiah v. V. Rajagopal, and Madan Lal v. Bal Krishan. In Madan Lal v. Bal
Krishan, it was observed that:
"In view of section 100 of the Code of Civil Procedure, 1908 the memorandum
of appeal shall precisely state substantial question or questions of law involved
in the appeal as required under sub-section (3) of section 100. Where the High
Court is satisfied that in any case any substantial question of law is involved it
shall formulate that question under sub-section (4) and the second appeal has to
be heard on the question so formulated as stated in sub-section (5) of section 100."
Where a point of law has not been pleaded or is found to be arising between
the parties in the absence of any factual format, a litigant should not be allowed
to raise that question in second appeal. The mere appreciation of the facts the
documentary evidence or the meaning of entries on the contents of the documents
cannot be held to be raising a substantial question of law. Where the first
Appellate Court is shown to have exercised its discretion in a judicial manner, it
cannot be termed to be an error either of law or of procedure requiring
interference in second appeal; Mst. Sugani v. Rameshwar Das.
When Second Appeal does not Lie?
Following are the conditions wherein second appeal specifically does not lie
after the amendments of 1976 and 2002 of the Code of Civil Procedure:
(i) No second appeal shall lie except on the ground mentioned in section 100
[Section 101].
(ii) No second appeal shall lie from any decree when the subject-matter of the
original suit is for recovery of money not exceeding twenty-five thousand
rupees.
(iii) It is note worthy that no second appeal lies from an order; it is lies only from
a decree. Further, the decree against which the second appeal has to be filed
should itself be an appellate decree and such decree against which the second
appeal is to be filed must have been passed by a court inferior to the High Court
before which the second appeal is to be filed.
Q. Whether High Court can interfere with the findings of facts in a second
appeal?
In Kashibai v. Parwatibai, it was observed by the Supreme Court that there is
no jurisdiction to entertain a second appeal on the ground of erroneous finding of
facts based on appreciation of relevant evidence. Thus in second appeal,
reappreciation of evidence is not permitted unless the judgment is perverse or the
judgment is based upon evidence admittedly illegal or the finding is without
evidence (a defect in legal procedure) or there has been a wrong construction of
documents or misreading of evidence.
Points of law can be allowed to be urgent and put forward in second appeal,
even though such points were available on facts before the Court below, but were
not urged or put forward. Thus, new pleas can be taken in second appeal (Subodh
Kumar Neogi v. Panchu Gopal Neogi).
Q. What do you mean by expression 'substantial question of law'?
A second appeal lies only on a substantial question of law. After the amendment
of 1976, second appeal is barred on the ground of error of law or procedure. The
Supreme Court has defined the meaning and scope of "substantial question of
law" in Chunnilal Mehta v. Century Spinning & Mfg. Co., wherein the facts of
the case were Chunnilal Mehta & Sons (Appellants) were managing agents of
Century Spinning Co. (Respondents) for a term of 21 years by an agreement at
15th June, 1933. However in April, 1951, the Board of Directors of Respondent
Co. terminated the agreement of June, 1933 and passed a resolution removing the
Appellants as Managing agents. The Appellant relying on relevant clauses of
contract between them filed original suit in Bombay High Court claiming 50 lakh
as damages for wrongful termination of agreement. The Respondent Co. admitted
the termination of appellant employment wrongful but asked the learned Single
Judge to assess the quantum of damages appellant was entitled. Clause 14 of
mutual contract provided for compensation to be paid in case the agency of
managing agents terminated before the expiry of contract. It read:
"For the loss of such employment a sum equal to aggregate amount of monthly
salary of not less than Rs. 600 which Managing agents would have been entitled
to receive from the company, for and during whole of the then unexpired portion
of said period of 21 years."
Q. Discuss the conditions when second appeal does not lie?
The learned trial Judge on interpretation of clause 14 awarded a sum of Rs. 234
lakh (for unexpired term along with interest). Appellant aggrieved "filed the first
appeal in the same High Court. The judgment of the High Court in appeal was in
affirmance of the judgment of the learned single Judge dismissing appellant's suit
for damages and, therefore it was necessary for the appellant to establish that "a
substantial question of law" was involved to go in for second appeal. For second
appeal the appellant applied under article 133 (i.e., an appeal shall lie to Supreme
Court if the High Court certifies that the appeal involves the substantial question
of law). However, the learned Judges missed the application without hearing.
Thus this appeal is by special leave petition under article 136 of the Constitution.
The specific contention raised by appellant was that view taken by High Court
in disposing his appeal application under article 133 (i.e., as to substantial
question of law) runs contrary to Privy Council judgment in Raghunath Prasad
Singh v. Deputy Commissioner Pratapgarh. The Supreme Court observing that
view of Bombay High Court was narrow while that of Nagpur High Court a little
too wide, but that of Madras
High Court was balanced and laid down the following principles to determine
whether a question of law is "substantial question of law":
(1) If the question is of general public importance, or its directly and substantially
affects the rights of the parties. A substantial question of law is a substantial
question of law as between the parties in the case involved, and does not mean
a question of general importance.
(2) Whether it is either open question in the sense that it is not finally settled by
this court or by Privy Council or by Federal Court of is not free from difficulty
(a doubt about principle of law is involved) or calls for discussion of alternative
views: then it is a substantial question of law.
(3) If the question is settled by the highest court or the general principles to be
applied are well-settled and there is a mere question of applying those
principles or that the plea raised is palpably absurd, the question would not be
substantial question of law.
The assessment of damages by High Court being well within the clauses of
mutual agreement were upheld by Supreme Court. Affirming the decree of the
High Court, the appeal with cost was dismissed but with an observation:
"The construction of agreement is not only one of law but also it is neither
simple nor free from doubt. Moreover, a claim of several lakh was involved ....
depending upon the success or failure of conception of the parties Thus, it is a
Substantial question of law".
Recently three judges bench of Supreme Court in Santosh Hazari v. Purshottarn
Tiwari, observed that:
"Section 100 of the Code of Civil Procedure, 1908 as amended in 1976 restricts
the jurisdiction of High Court to hear the second appeal only on "substantial
question of law involved in the case". An obligation is cast upon the appellant to
precisely state in Memorandum of Appeal the substantial question of law
involved in appeal for which appellant process to urge before High Court. High
Court must be satisfied that a substantial question of law is involved in the case
and such question has to be formulated by High Court. At the hearing of the
appeal, the scope of hearing is circumscribed by the question so formulated by
High Court. Respondent is at the liberty to show that question formulated by High
Court is not involved in the case. However, High Court's power to hear the appeal
on any other substantial question of law not earlier formulated by it, is not taken
away subject to twin conditions being satisfied:
(a) the High Court feels that the case involves such question, and
(b) High Court records reasons for such satisfaction."
Power of High Court to Determine Issues of Fact
According to section 103 of the Code of Civil Procedure, 1908,
In any second appeal, the High Court may, if the evidence on the record is
sufficient, determine an y issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower Appellate Court or both by the
Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such court or courts by reason of a
decision on such question of law as is referred to in section 100.
Order from which Appeal Lies
Section 104 of the Code of Civil Procedure, 1908 provides that,
(1) An appeal shall lie from the following orders, and save as otherwise expressly
provided in the body of this Code or by any law for the time being in force,
from no other orders:
(ff) an order under section 35A;
(ffa) an order under section 91 or section 92 refusing leave to institute a suit of
the nature referred to in section 91 or section 92, as the case may be;
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing
the arrest or detention in the civil prison of any person except where such arrest
or detention is in execution of a decree; (i) any order made under rules from
which an appeal is expressly allowed by rules:
Provided that no appeal shall lie against any order specified in clause (ff) save
on the ground that no order, or an order for the payment of a less amount, ought
to have been made.
(2) No appeal shall lie from any order passed in appeal under this section.
In Kondiba Dagadu Kadam v. Savitri Bai, the facts of the case were, the
appellants filed a suit for specific performance against the respondent with regard
to an agreement to sale dated 12th May, 1972 which was dismissed by Trial Court
by it's order dated 25th June, 1985. The lower Appellate Court allowed the appeal
and granted the relief of specific performance in favour of plaintiff.
The Appellate Court found that the deceased 'Sopan' executed a document
Exhibit page 68 in front of plaintiff witness Babu, who confirmed the thumb-
impression of deceased on Exhibit page 68 were made in his presence. The
findings of Appellate Court are based on appreciation of evidence and being the
finding of the last court on facts were binding upon the parties.
The fact that learned single judge of the High Court has only appreciated the
evidence is evident from findings "the lower Appellate Court has only relieved
upon the evidence of two attesting witnesses viz. Sopan Shankar Nadha and
Ramu Laxman Shinde (police patil)". Ramu Laxman Shinde had stated that he
was present at the time of execution of agreement of repurchase dated 12th May,
1972. However, in the plaint there is no reference whatsoever with regard to
Ramu Laxman, being present at the time of execution of said repurchase
agreement dated 12th May, 1972. In view thereof, the evidence of Ramu Laxman
Shinde cannot be accepted. Sopan Shankar Nadhe is also not reliable as he make's
contradictory statement about Sopan's thumb-impression. The Apex Court held
that the order of learned single Judge, impugned in the appeal being against the
settled norms and contrary is the mandate to section 100 of the Code of Civil
Procedure, 1908, therefore cannot be sustained. The appeal is allowed by setting
aside the impugned judgment of the High Court and restoring the judgment of the
first appellate court with costs throughout.
Observations and decision of the Supreme Court.--
The Apex Court made following observations with regards to section 100 of
the Code of Civil Procedure, 1908.
 After the Amendment Act, 1976 to the Code of Civil Procedure, 1908, a second
appeal can be filed only if a substantial question of law is involved in the case.
The memorandum of appeal must precisely state the substantial question of law
involved and the High Court is obliged to satisfy itself regarding the existence of
such question. The High Court has to formulate the substantial question of law
involved in the case. The respondent at the time of hearing of the appeal has a
right to argue that the case in the Court did not involve substantial question of
law. The proviso to the section, acknowledges the power of the High Court to
hear the appeal on substantial point of law, though not formulated by it with the
object of ensuring that no injustice is done to the litigant where such question was
not formulated at the time of admission either by mistake or by inadvertence.
It is not within the domain of the High Court to investigate the grounds on
which the findings were arrived at by the last Court of fact, being the first
Appellate Court. The lower Appellate Court should not reject witnesses accepted
by the Trial Court in respect of credibility but even where it has rejected the
witnesses accepted by the Trial Court, the same is no ground for interference in
second appeal when it is found that the Appellate Court has been given
satisfactory reasons for doing so. In case where from a given set of circumstances
two inferences are possible one drawn by lower Appellate Court is binding on the
High Court in second appeal. The High Court cannot substitute its opinion for the
opinion of the first Appellate Court unless it is found that conclusion drawn by
lower Appellate Court were erroneous being contrary to the mandatory provisions
of law applicable or its settled position on the basis of pronouncement made by
the Apex Court, or was based upon inadmissible evidence or arrived at without
evidence.
Q. Discuss the powers of an Appellate Court.
Section 107 of the Code of Civil Procedure, 1908 provides for the powers of
the Appellate Court in the following manner:
"(1) Subject to such conditions and limitations as may be prescribed, an Appellate
Court shall have power--
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall
perform as nearly as may be the same duties as are conferred and imposed by
the Code on courts of original jurisdiction in respect of suits instituted therein.
In Sarju Pershad v. Raja Jwaleshwari, the Supreme Court observed that, the
provisions of section 107 are clearly not involved to allow a litigant who has been
unsuccessful in the lower Court to patch up the weak parts of his case and fill up
omission in the Court of appeal.
The Appellate Court has to bear in mind that it does not have the advantage
which the Trial Court had in having the witnesses before him and of observing
the manner in which they deposed in court. This certainly does not mean that
when an appeal lies on facts, the Appellate Court is not competent to reverse a
finding of fact arrived at by the trial judge. The rule is and it is nothing more than
the rule of practice--that when there is conflict of oral evidence of the parties on
any matter in issue and the decision hinges upon the credibility of the witnesses,
the general rule is that the Appellate Court should permit the finding of fact
rendered by the Trial Court to prevail unless it clearly appears that some special
feature about the evidence of a particular witness has escaped the notice of the
Trial Court or there is sufficient balance of improbably to displace its opinion as
to where the erasability lies.
When Appeal Lies to the Supreme Court
Section 109 of the Code of Civil Procedure, 1908 provides for the conditions
when appeal lies to the Supreme Court in the following words:
"Subject to the provisions in Chapter IV of Part V of the Constitution and such
rules as may, from time to time, be made by the Supreme Court regarding appeals
from the Courts of India, and to the provisions hereinafter contained, an appeal
shall lie to the Supreme Court from any judgment, decree or final order in a civil
proceeding of a High Court, if the High Court certifies--
(i) that the case involves a substantial question of law of general importance; and
(ii) that in the opinion of the High Court the said question needs to be decided by
the Supreme Court."
It was observed in Shiv Shakti Coop. Housing Society v. Swaraj Developers,
that "appeal", is defined in the Oxford Dictionary, as the transference of a case
from an inferior to a higher court or tribunal in the hope of reversing or modifying
the decision of the former. In the Law Dictionary by Sweet, the term "appeal" is
defined as a proceeding taken to rectify an erroneous decision of the Court by
submitting the question to a higher court or court of appeal, and it is added that
the term, therefore, includes, in addition to the proceedings specifically so called,
the cases stated for the opinion of the Queen's Bench Division and the Court of
Crown Cases reserved, and proceedings in error. In the Law Dictionary by
Bouvier an appeal is defined as the removal of a case from a court of inferior to
one of superior jurisdiction for the purpose of obtaining a review and retrial, and
it is explained that in its technical sense it differs from a writ of error in this, that
it subjects both the law and the facts to a review and retrial, while the latter is a
common law process which involves matter of law only for re-examination; it is
added, however that the term "appeal" is used in a comprehensive sense so as to
include both what is described technically as an appeal and also the common law
writ of error. Sub-section (2) of section 115 has remained unaltered even after the
amendment by the Amendment Act. A new sub-section (3) has been added in
section 115 by the Amendment Act which states that revision shall not operate as
a stay of suit or other proceeding before the Court except where such suit or other
proceeding is stayed by the High Court.
In section 2, the expression "decree" and "order" have been defined in clauses
(2) and (14) respectively. It is to be noted that it matters little that the judgment is
styled as an "order". If, in fact, it fulfils the conditions of the definition under
section 2(2), it is a decree and becomes appealable. Orders that are not appealable
are, generally speaking, those which are procussual, i.e., interlocutory or
incidental orders regulating proceedings but not deciding any of the matters of
controversy in the suit. Order XLIII deals with "appeals from orders." These
appeals lie under section 104 of the Code of Civil Procedure, 1908. The said
section deals with appeals from the specific orders from which appeals can lie.
Sub-section (2) of section 104 says that no appeal shall lie from an order passed
in appeal under the said section. Section 104 and Order XLIII, rule 1 contain a
full list of appealable orders. An Order which amounts to a decree within section
2(2) does not fall within section 104 and the only applicable section is section 96.
Clauses (a) to (f) of section 104 were omitted by the Arbitration Act, 1940, section
105 relates to other orders. It, inter alia, relates to any order, i.e. to appealable as
well as non-appealable orders. It is in the nature of a prohibited stipulating that
save as otherwise expressly provided, no appeal shall lie from any order made by
a court in exercise of original or appellate jurisdiction; but where a decree is
appealed from, any error, defect or irregularity in any order, affecting the decision
of the case, may be set forth as a ground of objection in the memorandum of
appeal. Subsection (2) deals with case of remand. This section, in fact,
contemplates two things, i.e., (1) regular appeal from decree; and (2) the
provision relating to grant of objection relating to interim, order. Order XLIII,
rule 1 is an integral part of section 104.
A plain reading of section 115 as it stands makes it clear that the stress is on
the question whether the order in favour of the party applying for revision would
have given finality to suit or other proceeding. If the answer is "yes" then the
revision is not maintainable. Therefore, if the impugned order is interim in nature
or does not finally decides the lis, the revision will not be maintainable. The
legislative intent is crystal clear. Those orders, which are interim of revision under
section 115. There is marked distinction in the language of section 97(3) of the
old Amendment Act and section 32(2)(i) of the new Amendment Act. While in
the former, there was a clear legislative intent to save applications admitted or
pending before the amendments came into force. Such an intent is significantly
absent in section 32(2)(i). The amendment relates to procedures. No person has a
vested right in a course of procedure. He has only the right of proceeding in the
manner prescribed. If by a statutory change the mode of procedure is altered, the
parties are to proceed according to the altered mode, without exception, unless
there is a different stipulation.
Q. What do you mean by word 'Revision'?
Generally speaking, 'Revision' means "the action of revising, especially critical
or careful examination or perusal with a view to correcting or improving."
According to section 115 of the Code of Civil Procedure, 1908:
(1) The High Court may call for the record of any case which has been decided
by any court subordinate to such High Court and in which no appeal lies
thereto, and if such subordinate court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any
order made, or any order deciding an issue, in the course of a suit or other
proceeding, except where the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or other
proceedings.
Discuss the essential ingredients of 'revision'.
(2) The High Court shall not, under this section, vary or reverse any decree or
order against which an appeal lies either to the High Court or to any Court
subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the
Court except where such suit or other proceeding is stayed by the High Court.
Explanation.--
 In this section, the expression "any case which has been decided" includes
any order made, or any order deciding an issue, in the course of a suit or other
proceeding.
Therefore, under the Code, the jurisdiction exercised by the High Courts
under this section is called 'revisional jurisdiction'. However, the powers of the
High Courts under this section could only be invoked in cases in which no appeal
lies to the High Court and the case was decided by any court subordinate to such
High Court and such subordinate court appeared:
(i) to have exercised a jurisdiction not vested in it by law; or
(ii) to have failed to exercise a jurisdiction so vested; or
(iii) to have acted in the exercise of its jurisdiction illegally on with material
irregularity.
However, under section 115 of the Code of Civil Procedure, 1908, the High Court
cannot:
(i) vary or reverse any order except where the order, if it has been made in favour
of the party applying for revision would have finally disposed off the suit or
proceedings.
(ii) vary or reverse any decree or order against which an appeal lies either to the
High Court or to any sub-ordinate court.
It should be noted that, a 'revision', docs not, operate as a stay of suit or other
proceedings before the Court, unless such suit or proceeding is, in fact, stayed by
the High Court. Further, in the exercise of its revisional power, it is not the
province of the High Court to enter into the merits of the evidence.
In Ram Kumar v. State of Rajasthan, it is held that the suit itself was
dismissed on merits after the issue as to the maintainability of the suit for non-
service of notice upon the respondent was decided in favour of the appellants. It
is now pending in appeal before the Appellate Court. Therefore, by any stretch of
imagination, it cannot be said that at the time the revision was decided, it was
open to High Court to deal with the issue passed by the Trial Court when the suit
itself was dismissed on merits. The revision became in fractus in view of the
disposal of the suit on merits.
Q. Discuss the essential ingredients of 'revision'. (or) Essential Requirements
for 'Revision'
Any High Court within the territorial limits of India may exercise its
revisional powers under section 115 of the Code of Civil Procedure, 1908 if
following conditions are satisfied:
(i) there must be a case decided by a court;
(ii) the Court deciding the case must be one subordinate to the High Court;
(iii) the decision must be one in which no appeal lies to the High Court; and
(iv) the subordinate Court in deciding the case must appear to have:
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction vested in it by law; or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity;
Michael Mascarenhas, Major v. Johu Mascarenhas,
Exercise of Revisional Jurisdiction is Discretionary
The use of word "may" in section 115 of the Code of Civil Procedure, 1908
indicates that the exercise of the revisional powers of the High Court is entirely
discretionary. The High Court does not usually interfere if the aim of an
irregularity of the lower Court has been to promote justice; Sham Mohan Lai v.
Jai Gopal. Likewise, the High Court may decline to exercise its revisional
jurisdiction if the matter is sub-judice in the appeal filed by another party to the
same suit. Before interfering in the 'Revision' the Court always takes into
consideration the conduct of the petitioner; Dominion of India v. Gobordhan Das,
if he does not disclose his entire case the Court shall not exercise its revisional
jurisdiction; J.N. Basu v. Tarakchandra Raychowdhury. Where the power of
revision has been invoked and dealt with, the High Court ought not to interfere
with the order in question in a subsequent writ petition; Shankar R. Abhyankar v.
Krishnaji.
'Case' and 'Suit': Distinction
Q. Differentiate the words 'case' and 'suit'?
The meaning of expression 'case' being of a comprehensive import, it includes
civil proceedings other than suits and it is not restricted to the entirety of the
proceedings in a civil suit. To interpret 'case' as in entire proceedings, and not a
part of proceedings, would be to restrict the supervisory jurisdiction of the High
Court resulting in gross injustice to an aggrieved litigant. In view of that, 'case'
includes a part of the case, there is no escape from the conclusion that a revisional
jurisdiction may be exercised in respect of the question whether an appeal lies
from the ultimate order or decree passed in the suit.1 Therefore, the word 'case' is
more comprehensive than the word 'suit'; Patna Municipal Corporation v. Brij Raj
Krishna.
Jurisdictional Error
Section 115 of the Code of Civil Procedure, 1908 is clearly limited to keep
subordinate courts within the bounds of their jurisdiction. This section concerns
jurisdiction alone involving:
(i) exercise by court of jurisdiction not vested in it by law; or (ii) failure to
exercise jurisdiction; or
(iii) a court in exercise of its jurisdiction has acted illegally or with material
irregularity-.
The word 'jurisdiction' originally seems to mean the entitlement 'to enter upon
the enquiry in question'. In MX. Sethi v. R.P. Kapur, it was held by the Supreme
Court, through Mathew. that, "it is a verbal case of many colours." A court may
have jurisdiction to entertain a suit or appeal, and yet it may have no jurisdiction
to pass a particular order in the suit or an appeal. Section 115 is not attracted
against a conclusion of law or of a fact, in which question of jurisdiction is not
involved. However, where the question of court-fee simpliciter, in case of a
combined question of court-fee and jurisdiction, the defendant can request the
High Court to interfere in a revision with the impugned order of the lower court;
A.P. State Electricity Board v. K. Venkateswara Rao.
(i) Exercise by court of jurisdiction not vested in it by law.--
Where a Civil Court exercised jurisdiction not vested in him by a statue and
violated the procedure laid down by the statute and thus, committing an illegality
in exercise of its jurisdiction, the High Court must rectify the error by the exercise
of its revisional jurisdiction; Chandrika Singh v. Raja V.P. Singh. Following cases
reflect unauthorized jurisdiction by subordinate court:
(a) assumes jurisdiction beyond its pecuniary or territorial limit or by reason of
subject-matter of suit; or
(b) entertains an appeal from an order which is not appealable; or
(c) entertains a suit or appeal which it has no jurisdiction to entertain; or
(d) making ultra-vires order; or
(e) grant an injunction without considering whether a prima facie case is made;
or
(f) allows withdrawal of suit on a ground not contemplated under Order XXIII,
rule 1; or
(g) directs a subordinate court to try a suit not triable by it.
There is distinction between cases in which on a wrong decision the Court has
assumed jurisdiction which is not vested in it and those in which in exercise of its
jurisdiction the Court has arrived at a conclusion erroneous in law or in fact. In
the former class of cases. Revisional power is permissible, while in latter class of
cases it is not. Thus, if by an erroneous decision on a question of fact or law
touching its jurisdiction, the subordinate court assumes a jurisdiction not vested
in it by law or fails to exercise a jurisdiction so vested, its decision is not final
and is subject to the revisional jurisdiction of the High Court under section 115.
(ii) Failure to exercise its jurisdiction.--
Where a court having jurisdiction to decide a matter, thinks erroneously under
misapprehension of law or fact that it has no jurisdiction and declines to exercise
it, the High Court can interfere in revision.
(iii) Exercise of jurisdiction illegally or with material irregularity.--
The expression "illegality" and "material irregularity" cannot be precisely
defined but the substance can be culled from the observations of the Supreme
Court in D.L.F. case.
In D.L.F. Housing & Construction Co. Ltd. v. Sarup Singh, the Supreme Court
observed that:
"While exercising the jurisdiction under section 115, it is not competent to the
High Court to correct error of fact however gross or even errors of law unless the
said errors have relation to the jurisdiction of the Court to try the dispute itself...
The words "illegally" and "with material irregularity" do not cover either errors
of fact or of law, they do not refer to the decisions arrived at but merely to the
manner in which it is reached. The errors contemplated by this clause may, in our
view, relate either to the breach of some provision of law or to material defects of
some provision of law or to material defects of procedure affecting the ultimate
decision, and not to errors either of fact or of law; after the prescribed formalities
have been complied with.
Five instances of material irregularity are:
(1) court decides the case without considering evidence on record;
(2) evidence not legally taken or otherwise inadmissible;
(3) fails to follow a decision of the High Court to which it is subordinate;
(4) follow a decision inapplicable to the facts of the case;
(5) framing issues wrongly places burden of proof, etc.
Section 115 bestows revisional power on the High Court with a view to
subserve and not to defeat the ends of justice. Where substantial justice has been
done by the orders of the lower court, the High Court will not interfere with it, in
the "Revision" in spite of the fact that the reasons or the order are not correct or
the order is improper or irregular. If order reflect grave injustice or hardship or
substantial failure of justice, the High Court will interfere. High Court will not
exercise revisional jurisdiction in case the aggrieved party has alternative remedy,
available against the order passed by lower court, or who suppresses material fact
from the Court. Another exception was introduced by the Code of Civil Procedure
(Amendment) Act, 1999, by adding provision its sub-section (1) of section 115
stating that High Court shall not vary or reverse any order passed in course of a
suit or other proceedings except where the order, if it had been made in favour of
the applicant, it would have finally disposed of the suit or other proceedings.
Sub-section (2) as inserted by the Amendment Act of 1999 clarifies that mere
filing of revision in the High Court would not operate as stay of suit or other
proceeding are pending unless such stay is granted by the High Court.
The High Court will exercise revisional powers on the application of aggrieved
party, but in appropriate cases where the conditions laid down in this section are
satisfied, it may suo motu call for any record and pass necessary orders. The
Supreme Court in Swastik Oil Mills v. H.B. Munshi, held, the proceeding for
revision, if started suo motu, must not, of course, be based on a mere conjecture
and there should be some ground for invoking the revisional powers. Once those
powers are invoked, the actual interference must be based on sufficient grounds,
and, if it is considered necessary that some additional enquiry should be made to
arrive at a proper and just decision, there can be no bar to the revising authority
holding the further enquiry or directing such an enquiry to be held by some
appropriate authority.
REVIEW (SECTION 114 and ORDER XLVII)
Q. What does the word 'Review' mean?
'Review' means "to look once again". The main object of granting a review of
judgment is reconsideration of the same matter by same judge under certain
conditions. The provisions relating to review, thus, strikes down the general rule.
"Once the judgment is signed and pronounced by the Court it become 'functus
officio" and has no jurisdiction to alter it."
Section 114 of the Code of Civil Procedure, 1908 lays down very general
provisions for review of cases which is further elaborated and conditioned by
provisions of Order XLVII of the Code.
Section 114 reads:
Subject as aforesaid, any person considering himself aggrieved,--
 (a) by a decree or order from which an appeal is allowed by this Code, but from
which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for
a review of judgment to the Court which passed the decree or made the order,
and the Court may make such order thereon as it thinks fit.
According to rule 1 of Order XLVII:
(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no
appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from
the discovery of new and important matter or evidence which, after the
exercise of due diligence was not within his knowledge or could not be
produced by him at the time when the decree was passed or order made, or
on account of some mistake or error apparent on the face of the record, or
for any other sufficient reason, desires to obtain a review of the decree
passed or order made against him; may apply for a review of judgment to
the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review
of judgment notwithstanding the pendency of an appeal by some other party
except where the ground of such appeal is common to the applicant and the
appellant, or when, being respondent, he can present to the Appellate Court the
case on which he applies for the review.
Explanation.-- The fact that the decision on a question of law on which the
judgment of the Court is based has been reversed or modified by the subsequent
decision of a superior court in any other case, shall not be a ground for the review
of such judgment.
Conditions Precedent to Allow Review Application
Q. What are the essential conditions to allow review application?
In every fit case, the Court allowing the review application should keep two
points in mind:
(i) Notice should be given to the opposite party to enable him to appear and be
heard in the matter; and
(ii) if the application is made on the ground of discovery of new matter/ evidence,
which the applicant alleges, was not within his knowledge, or could not be
adduced by him, when the decree was passed, or the order was made, the
review application is not to be granted without strict proof of such allegation.
It should be noted that, lack of sufficient ground for review, the application is
liable to be rejected by the Court. Subsequent event may be taken into
consideration by the Court, while exercising review jurisdiction; BCCI v. Netaji
Cricket Club.
The Kerala High Court in Pathrose v. Kuttan, AIR 1991 Ker 186, it has been held
that error apparent on the face of record is not limited to the errors of fact only
and it extends to errors of law as well. The Court further said that it matters not
whether the error of law was apparent in the light of decision of the superior court
which was existing at the time of the making of the decision or it was pronounced
even after the decision in the case in question was made. In other words court
said:
"Where a decision has been taken by a court and subsequent to that a
pronouncement is made on the same point of law involved in the case in question,
the same would be a good ground for the review of the judgment of the Court."
Thus the following two grounds are good enough for the judicial review:
(1) If another binding decision interpreting the law differently was given before
or after the judgment in the given case and the petitioner had no opportunity to
bring it to the notice of the Court.
(2) If the legislature amends the existing law, the same can also be a good ground
for judicial review. However, the principle is applicable where the statue is
amended retrospective and not otherwise.
In Surinder Singh Arora v. Major Sohan Singh Arora, the facts of this case
are that Major Sohan Singh Arora (Respondent) filed on application in Delhi High
Court to review its earlier order, on the ground that said order was passed without
noticing the provisions of section 21 (2) of the Code of Civil Procedure, 1908.
The earlier order by the High Court set aside, the order of remand by Additional
District Judge and directed that the suit be retired and disposed by an Additional
District Judge. The subsequent proceedings to remand order were also quashed
on ground of being made without jurisdiction.
The contented provisions of section 21(2) were not brought to the notice
of High Court when the earlier order was made and the Court quashed the
proceeding on the basis of general principles of law with regard to the legality of
the proceedings of court not competent to try the suit for want of requisite
pecuniary jurisdiction. The High Court accepting the contention of the counsel of
Respondent that in view of specific provision of section 21(2), an objection to the
pecuniary jurisdiction of a court must be raised at the earliest stage of the
proceeding in a suit and that it must be further shown that some prejudice has
resulted to the aggrieved party before the proceedings of the Court having
requisite pecuniary jurisdiction can be set aside. In the instant case it was only in
the revision petition which was filed by petitioner in the High Court that he raised
the objection regarding the pecuniary units of the Courts of subordinate judge for
the first time.
If the said provisions of section 21(2) would have been brought to the
notice of the High Court the proceedings before the subordinate judge after the
remand order of Additional District Judge would not have been quashed
especially when the trial of suit was in progress and there could be no question of
failure of justice consequent upon the same.
As to maintainability of the review petition. It was urged that the inherent
fact that order under review is wrong on a point of law will not, according to well-
established principles furnish a ground for review by this court, more so when no
new and important matter of evidence has been discovered.
Decision: The High Court on this contention held that:
The erroneous decision on a point of law in the sense that the Court has
taken a view on a point of law which is erroneous is quite different from case
where specific provision of law having bearing on the controversy between the
parties has not been considered at all. May be because it was not within the
knowledge of the counsel for the parties or for that matter the Court itself Hence,
if it is brought to the notice of the Court that there was a specific provision of law
interdicting an appellate or revisional court to entertain the plea, the Court would
be failing in its duty if it refuse to rectify the error on pure technical grounds.
When the Court disposes of a case without adverting to or applying its mind
to a provision of law which gives it jurisdiction to act in a particular way that may
amount to an error analogous to be apparent on the face of the record sufficient
to bring the case within purview of Order XLVII, rule 1 of the Code of Civil
Procedure, 1908.
In Union of India v. B. Valluban, it is held that the High Court's jurisdiction to
review its own judgment is limited. The High Court, indisputably, has a power of
review, but it must be exercised within the framework of section 114 read with
Order XLVII of the Code of Civil Procedure. The High Court did not arrive at a
finding that there existed an error on the face of the record. In fact, the High Court,
despite noticing the argument advanced on behalf of Union of India that the
Respondent had no legal right to be appointed, proceeded to opine that the panel
prepared for filling up of future vacancies should be given effect to. The review
of the High Court was not only contrary to the circular letter issued by Union of
India, but also contrary to the general principles of law.
'Appeal' and 'Revision': Distinction
Q. Differentiate between 'appeal' and 'revision'.
There are following main distinctions between Revision and Appeal:
(a) An appeal lies to Superior Court from every original decree unless expressly
barred, while a revision lies only in the cases mentioned in section 115 of the
Code of Civil Procedure, 1908, and to the High Courts only.
(b) The revisional jurisdiction can also be exercised suo motu, while appellate
jurisdiction cannot be exercised suo motu.
(c) The exercise of revisional power is entirely discretionary and ordinary. High
Court does take a technical view so as interfere in every case while right of
the appeal is a substantive right given by statute, and every appeal is to be
decided according to law.
(d) The High Court or revisional court cannot, in exercise of its revisional powers,
set aside the findings of facts of subordinate courts but a court of appeal can
do so.
(e) An appeal abates if the legal representative of the deceased are not brought on
record within the time allowed by law while a revision may not abate and the
High Court has a right to bring the proper parties before the Court at any time.
(f) Order XLI, rule 31 of the Code provides for a procedure for deciding the
appeal. The law requires substantial compliance of the said provisions. The
first appeal is a valuable right and the parties have a right to be heard both on
question of law and on facts. Parimal v. Veena.
'Revision' and 'Review': Distinction
Q. Point out the difference between 'Revision' and 'Review'.
There are following distinctions between Revision and Review:
(a) The power of revision is exercised by the High Court and in some cases by
the district court, i.e., the Superior Court, while the power of review is
exercised by the Court which passed the decree or order.
(b) The power of revision is conferred on the High Court only and in some cases
in some states, on the district court also, but review can be made by any court
which passed the judgment or order.
(c) Revisional powers can be exercised only in cases in which no appeal lies, but
review can be made even when appeal lies to the Supreme Court.
(d) The grounds on which the powers of revision and review can be exercised and
different. The ground for revision relates to jurisdiction, i.e., want of
jurisdiction, failure to exercise jurisdiction vested in the Court, or illegal or
irregular exercise of the jurisdiction, while the grounds for review are
discovery of new and important matter of evidence, some apparent mistake or
error on the face of the record or any other sufficient reason.
(e) No appeal lies from an order passed in the exercise of revisional jurisdiction
while the order following the review application is appealable.
(f) Under Order XLVII, rule 1, in case of grounds of review the expression "any
other sufficient reason" has to be read in light of other specified grounds. State
of West Bengal v. Kamal Sengupta.