STATE OF TRIPURA Vs. SAJAL KANTI SENGUPTA

JUDGEMENT

(1.) THE application under Section 115 C.P.C and under art 227 of the constitution of India is directed against the order dated 20-01 81 passed by Shri B.B Deb Munsiff sadar at Agartala in Misc case No.390 of1981 arising out of the title suit no.314 of 1981. The circumstances leading to the present petition are as follows :

(2.) LEARNED counsel for the plaintiff opposite party submitted that this revision petition is not entertainable in view of Sub-section(2) of Section 115, C.P.C. wherein it is laid down that 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. Under the provisions of Order 43(1)(r) an order under Rules 1 and 2 of Order 39, C.P.C. is appealable. Learned counsel for the defendant petitioners on the other hand, was of opinion that these provisions apply to an appeal to the High Court and do not apply to an appeal to a subordinate Court. An appeal against an order Of temporary injunction lies to the Court of the Subordinate Judge and not to High Court, and, there4 fore, according to the learned counsel the revision to the High Court is quite maintanable. In support he relied on S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497, Vidya Vati v. Devi Das, AIR 1977 SC 397 and Vasu v. Narayanan, AIR 1962 Ker 261. But these decisions relate to a period prior to the coming into force of the amended C.P.C. In the unamended Section 115 of old C.P.C. there was no mention of the appellate Court and it was ruled in these cited cases that where appeal lies to any Court below the High Court revision under Section 115, C.P.C. lies to the High Court and that if the appeal lies to the High Court revision under Section 115, C.P.C. cannot be entertained. But in order to avoid the ambiguity found in the provisions Of the old section the amendment to Section 115, C.P.C. has made it clear that revision is barred against the order in which an appeal lies either to the High Court or to any Court subordinate thereto. So it is found that revision is incompetent against an order in which appeal lies either to the High Court or to any Court subordinate thereto. In that view this revision is quite incompetent. Learned counsel for the defdt. petitioners gave up the point and had recourse to the submission that as the impugned order of temporary injunction has been passed by the learned Munsiff under Section 151, C.P.C. the revision is quite competent in the High Court. It is found, however, that the impugned order dated 20-10-81 was passed by the learned Munsiff in exercise of his inherent powers under Section 151 C.P.C. (sic). The learned counsel for the plaintiff opp. party pointed out that the impugned order of temporary injunction was passed by the learned Munsiff under Order 39, Rule 2 C.P.C. and that this being the position the order is appealable and hence not amenable to revision in view of the provisions of sub-section (2) of Section 115, C.P.C.

(3.) THIS leads us to the question whether the learned Munsiff was wrong in exercising his inherent power under Section 151, C.P.C. Learned counsel for the defdt-petitiohers relied on S.M.R. and O. Mills v. Hindustan Motor Ltd. AIR 1973 Gauhati 120 wherein learned single Judge, Baharul Islam (as he then was) found "it is settled law that Section 151 cannot be invoked when there are other provisions in the Code." In that case an order was passed by the Court below regarding a plea raised on behalf of the defence by an application after in situation of the suit regarding lack of territorial jurisdiction of the Court, Despite there being clear procedure in the C.P.C. regarding raising of such a plea and disposal thereof, the learned Court below entertained the application raising the plea and disposed of it by exercise of its inherent power as against the provisions for the due procedure. Learned counsel also relied on Chou Khanyba Tea Company v. prabhu Dayal reported in AIR 1979 Gauhati 37 wherein the learned Chief Justice, M. Sadananda Swamy held that the Court cannot resort to its inherent powers under Section 151 for setting aside dismissal of suit as Order 9, Rule 9 provides for the same. The ratio, therefore, of this case is, that where there are provisions for dealing with certain matters in the Code, resort to the inherent powers of the Court overriding those provisions is prohibited. In this connection reliance was also placed by the learned counsel on Ram Karan Das v. Bhagawan Das, AIR 1965 SC 1144. There it was ruled that the inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. The learned Judge of the Supreme Court found in that case that Rule 3 of Order 37 expressly gives power to a Court to set assign a decree passed under the provisions of that order and that, therefore, if a case does not come within the provisions of that rule, there is no scope to resort to Section 151 for setting aside a decree.