ANGSUMAN MUKHERJEE Vs. SHYAMALMOY PAL AND CO

JUDGEMENT

(1.) The instant revisional application is taken up for hearing on contest being directed against an order dated December 4, 1997 passed by the Second Court of Additional District Judge, Siliguri in Misc. Appeal No. 36 of 1997 confirming Order No. 2 dated September 15, 1997 passed by the Civil Judge, Junior Division, Siliguri in O.C. Suit No. 200 of 1997. It is not out of context to mention at the outset that the connected suit is for reliefs by way of multiple declarations that the conduct of the defendant No. 3 in settling the tender bid work is illegal and void, a further declaration that the candidature of defendant No. 9 is void as he is a disqualified person as per the documents, for a decree of declaration that the plaintiffs are the only qualified successful bidders as per bid documents and for a perpetual injunction restraining the defendant Nos. 3 to 9 acting on the basis of decision of defendant Nos. 3, 4, 5 and 10 and for other consequential reliefs. The filing of the said suit is followed by filing of an application under Order 39 rules 1 and 2 of the Code of Civil Procedure with a prayer for ad-interim/temporary injunction restraining the defendant No. 9 from taking any action or further action on the basis of the purported bid documents dated June 2, 1997. A comparative glance at prayer (d) of the plaint and the prayer contained in the application for temporary injunction will reveal that the original prayer in the plaint has been modified to the extent by circumscribing it to a limited injunction against the defendant/opposite party No. 9.

(2.) The trial court had passed a composite order by allowing the petition under section 80(2) of the Code of Civil Procedure ex-parte and by an ad-interim order of injunction restraining the said defendant No. 9 from executing the tender work. The said order was passed on September 15, 1997 which was made returnable on November 21, 1997. Against the said order of ad-interim injunction, a misc. appeal was preferred before the Second Court of Additional District Judge, Siliguri and the appeal court has confirmed the decision of the trial court. It is necessary to refer to a particular point sought to be agitated by Mr. Kundu, learned Advocate appearing on behalf of the opposite parties as, according to him, the connected misc. appeal was preferred only by the defendant No. 3 and it has been submitted that the restraint order of ad-interim injunction is only limited to defendant No. 9. Mr. Kundu was trying to refer to the Civil Manual and he was trying to point out that the appellant in the connected misc. appeal could not figure himself as an appellant therein as he could not be deemed to be a party aggrieved. This court has felt the need of picking up the said point first in view of the contention raised by Mr Kundu that the appeal itself as well as the revisional application at the behest of the said defendant No. 3 is not maintainable. This court has given its anxious consideration to the grievance ventilated by Mr. Kundu about the technicality of locus standi to prefer the petition and to file the appeal. In order to test the proposition raised by Mr. Kundu, this court on its own wants to make a reference to the provisions of Order 43 CPC which deals with appeals from orders and Order 43 rule 2 prescribes that rules of Order 41 CPC shall apply so far as it relates to appeals from orders. A reference may be made in this context to the provisions of Order 41 Rule 4 CPC which tends to contemplate that where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs as from two of the defendants, then any one of the plaintiffs or the defendants may appeal from the appellate decree and thereupon the appeal court may reverse or vary the decree made in favour of the plaintiffs or the defendants. This court has taken into account the aforesaid provisions and in view of the revisionist petitioner figuring as defendant No. 3 in the plaint of the suit itself and the said defendant can maintain an appeal under the provisions of Order 41 Rule 4 CPC.

(3.) Mr. Bikash Bhattacharyya, learned Advocate appearing on behalf of the revisionist petitioner, has first tried to invoke the mischief of the provisions of section 80(2) CPC by contending inter alia, that in a suit if a party desires to obtain an urgent and immediate relief against the Government or any public officer with regard to any act done by him in his official capacity, the same may be instituted with the leave of the court without serving any notice but the court shall grant relief, whether interim or otherwise, except giving a reasonable opportunity of showing cause. Mr. Bhattacharyya has tried to contend before this court that in view of the provisions as contained in section 80(2) CPC, no relief whether interim or otherwise can be granted without serving notice. In the instant, case it appears from the trial court's order that the interim order of injunction has been granted against the defendant No. 9, namely, Sri Uttamchand Sethia who is a party defendant and, therefore, the relief obtain is a relief by way of ad-interim order against a private person and not against the Government of the State or any public officer. As such, this court does not feel impressed that the rigours of section 80(2) CPC will operate as a bar for the courts concerned to pass interim orders or otherwise and the courts are not likely to be inhibited by the provisions as they are couched in terms of the letters engrafting the provisions of section 80(2) CPC. The said point taken by Mr. Bhattacharyya does not appear to be convincing before this court because of the distinguishing feature with regard to the grant of interim order against a private person and not against a Government or a public officer.