ABBAS BHAI Vs. T DEIVAYANI ANIMAL

JUDGEMENT

(1.) I am thoroughly satisfied that this is a vexatious proceeding to which the petitioners have resorted in assailing an interim order made by the Court below in I.A.No.19379 of 1985 in O.S.No.8117 of 1985. The suit itself was brought by the first respondent herein against the present petitioners for a declaration that she is entitled to the easementary right of light and air passing through the 4 ventilators and one window from east to west on the northern wall of the first floor of her property and for a permanent injunction restraining the present petitioners from digging foundation for their southern wall in flush with her* northern wall in any manner whatsoever and from constructing their building in any way which will affect the free flow of light and air to the plaintiff-s building through the four ventilators and one window referred to. Pending suit, the first respondent herein came forward with I.A.No.19379 of 1985 for an interim injunction restraining the present petitioners from digging foundation for their southern wall in premises No.81, Lingi Chetty Street, Madras-1 in flush with the first respondent-s northern wall in premises No.82, Lingi Chetty Street, Madras-1 in any manner whatsoever and from constructing their building in any way to affect the free flow of light and air. The said application was moved almost immediately on the presentation of the plaint and the Court below passed an ex parte order as follows: -Heard. Interim injunction and notice 14th November, 1985.- It is this order that is sought to be revised in this revision.

(2.) It must immediately be noticed that the order was not passed on merits, but is an ex parte order and that the present petitioners have ample opportunity of contesting the said application as also the interim order passed by the Court below. Yet, the petitioners have rushed to this Court with this revision. According to the learned Counsel for the petitioners, by virtue of Order 39, rule 3 proviso, the Court shall record the reasons while granting interim injunction without notice to the opposite party and as in this case no reason was given by the Court below, the order is void and should be summarily set aside. In this context, learned Counsel for the petitioners relied upon the decisions reported in Sri Patil Shivayya v. Sri Kavi-shetti Shankarappa Sugurappa, M.L.A., I.L.R. (1980)1 Karnataka 295, Bacharaj Singhvi v. Hastimal Kothari, (1980)2 A.L.T.472, Balaiah v, Aravindanagar Co-operative Housing Society, (1980)1 A.L.T.90, Amiya Prasad v. Bejoy Krishna, A.I.R.1981 Cal.351, R.Satya-narayan Murty v. Raghu Ramarao, A.I.R. 1982 Orissa 244 and Achamma v. Dominic Paul, (1980) K.L.T.484.

(3.) When it was brought to the notice of the learned Counsel for the petitioners that under Section 151, CODE OF CIVIL PROCEDURE, 1908. the Court below had inherent jurisdiction to grant interim injunction, the learned Counsel brought to my notice the following decisions reported in Manohar Lal v. Seth Hira-lal, A.I.R.1962 S.C.527, Arjun Singh v. Mohindra Kumar, (1964)5 S.C.R.946= A.I.R. 1964 S.C.993, Ramkarandas v. Bhagwandas, (1965)2 S.C.J.810= A.I.R.1965 S.C.1144, Nain singh v. Koonwarjee, (1971)1 S.C.J. 252= A.I.R.1970 S.C.997 and Cotton Corporation of India v. United Industrial Bank, (1983)3 Comp.L.J.171= A.I.R.1983 S.C.1272. In the first decision, the Supreme Court overruled the view held by this Court that in the teeth of the specific provision of Order 39, rule 1, CODE OF CIVIL PROCEDURE, 1908. the Court did not possess any power, much less inherent power enshrined under section 151, CODE OF CIVIL PROCEDURE, 1908. to grant interim injunction. In other words, the then view was unless the application is brought within the four corners of Order 39, rules 1 and 2, CODE OF CIVIL PROCEDURE, 1908. no injunction can be granted in that matter. This is now overruled specifically by the Supreme Court in the first decision referred to supra. Thus the principle well settled is that section 151, CODE OF CIVIL PROCEDURE, 1908. can be resorted to by way of supplementing the power inhered in the Court. In other words, even though the matter cannot be brought within any of the specific provisions contained in the Code in the instant case Order 39, rules 1 and 2, CODE OF CIVIL PROCEDURE, 1908. yet section 151, CODE OF CIVIL PROCEDURE, 1908. can be resorted to by a civil court to render justice. Thus section 151, CODE OF CIVIL PROCEDURE, 1908. can be used as a supplemental power notwithstanding specific provisions in the Code. Indeed, in Nainsingh v. Koonwarjee, (1971)1 S.C.J.252= A.I.R.1970 S.C.997 and Cotton Corporation of India v. United Industrial Bank, (1983)3 Comp.L.J.171 = A.I.R.1983 S.C.1272 it is clearly pointed out that by exercising the inherent jurisdiction under section 151, CODE OF CIVIL PROCEDURE, 1908. the Court shall not override the express provision. In this case, there is no overriding of the express provision, but it is mere supplementing the power conferred under Order 30, rules 1 and 2, CODE OF CIVIL PROCEDURE, 1908.