BAMAN PANDA Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) BEING aggrieved by the order of the learned Subordinate Judge, Puri rejecting his application for temporary injunction the Appellant has filed this appeal under Order 43, Rule 1 (r) of the Code of Civil Procedure Code.

(2.) THE Appellant filed O. S. No. 143 of 1983 (Ill) in the Court of the Subordinate Judge. Puri, against the District Collector, Puri for realisation of Rs. 14,700/ - '' and to permanently restrain the Defendant from realising the balance bid amount of Rs. 5000/ - with interest from him. The dispute arose in relation to fishery Sairat 'Sunamuhin ' which the Appellant had taken on lease during the year 1981 -82. The State filed a certificate proceeding for realisation of the balance bid money amounting to Rs. 5000/ - from the Appellant whereafter the suit was filed for the reliefs referred to above. During pendency; of the suit, the Appellant filed the application under Order 39, Rule 1, Civil Procedure Code praying to issue an ad interim order of Injunction against the Respondent restraining him to proceed with certificate case No. 698 of 1983 and not to realise Rs. 5739.70 from him till disposal of the suit. This application was rejected by the impugned order.

(3.) BOTH these questions are no longer res integra. They are settled by several decisions of the Supreme Court as well as of this Court. The position is beyond controversy that where there is a legal bar for grant of the prayer for injunction sought by the Plaintiff in the suit, relief of temporary injunction cannot be granted by the Court. See Cotton Corporation of India Limited v. United Industrial Bank Limited and Ors. : A.I.R. 1983 S.C. 1272. The question therefore is whether the prayer for injunction in the present case is hit by the bar under Section 41 (b) of the Specific Relief Act. Section 41 enumerates the cases In which the prayer for injunction cannot be granted. Under Clause (b) thereof it is laid down that an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. Under Clause (a) thereof there is a similar bar against restraining any person from prosecuting a judicial proceeding at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. The apparent distinction between the aforesaid two provisions is that while the bar in Clause (b) is absolute that under Clause (a) is subject to the exception that injunction may be granted to prevent multiplicity of proceedings. In similar circumstances this Court in the case of M/s. Udyogsilpa Private Ltd. v. State of Orissa and Ors. : 55 (1983) C.L.T. 549 held that injunction restraining the Defendant not to proceed with certificate proceeding for realisation of money due from the Plaintiff is hit by both Clauses (a) and (b) of Section 41. In that case reliance was placed on an earlier decision of this Court reported in Narayan Prusti v, State and Ors. : 37 (1971) C.L.T. 1171, wherein Hon 'ble R. N. Mishra, J (as he then was) held that a case of this nature squarely comes under the provisions of Order 39. Rule I, Civil Procedure Code and the bar under Section 41 (b) of the Specific Relief Act, 1963 applies to it.