STATE OF JAMMU AND KASHMIR Vs. GHULAM RASOOL

JUDGEMENT

(1.) This revision is directed against the order passed on 1-9-1993 by the City Munsiff, Srinagar in Suit No. 131 of 1993 titled Ghulam Rasool v. State and others. During the year 1993, the respondent herein was working as Senior Assistant in the office of the Executive Engineer, Transmission Line, Construction Division-II, PDD, Railway Station, Jammu, vide order No. DC/PD/ADM-2/Camp/9 of 1993 dated 17-8-1993, petitioner-1 herein transferred the respondent from the construction wing of Power Development Department, Jammu to the Procurement and Material Management Wing of the Power Development Department, Jammu. This order of transfer was challenged by the respondent in the abovesaid suit wherein it was prayed that the order may be declared as null and void. Consequential relief in the form of perpetual injunction was also sought that the petitioners be restrained from giving effect to the order in question. The plaint was accompanied by the application made under O. 39, Rr. 1 and 2, C. P. C. wherein relief of temporary injunction was sought for not giving effect to the above stated transfer order. On 1-9-1993, the City Munsiff, Srinagar in the said application passed ex parte order whereby the transfer order in question was kept in abeyance. The interim order is the subject matter of the dispute in this revision petition which has been referred to larger Bench by the learned single Judge vide his order dated 31-1-1997 who did not agree with the ratio of single Judge decision given in Civil Revision Petition No. 44/95. The reason for dis-agreement is the newly engrafted sub-section (2) in section 115, C. P. C. which stipulates that "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." In the abovesaid revision petition No. 44/95, it was held that revision petition is maintainable even where the appeal lies either to the High Court or to the Court subordinate thereto.

(2.) Mr. S. K. Anand, learned counsel appearing for the petitioners has contended that the revision petition in the present case is maintainable because the City Munsiff, Srinagar has not passed the impugned order under the provisions of O. 39, Rr. 1 and 2, C. P. C. as main suit was not maintainable before him because of lack of territorial and statutory jurisdiction. He had sought the relief of declaring the transfer order as'null and void' and by virtue of the impugned order sought the temporary relief of injunction in his favour not to give effect to the order of transfer in question. His prayer was accepted on the allegations made in the application that balance of convenience was in his favour and he had a prima facie case also. He had also alleged that in case the temporary relief was not granted he had to suffer irreparable loss. It may be noted that the State and the functionaries were arrayed as defendants in the suit. No notice as is contemplated under S. 80, C. P. C. was given to the defendants. The temporary relief was granted in complete dis-regard of sub-clause (3) to S. 80, C. P. C. which provides that a suit and/or an application for interim relief against the Government or any public officer in respect of any act purporting to be done by the public officer in his official capacity, may be instituted with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. The plaint had not disclosed how the Munsiff had jurisdiction in Srinagar when the impugned order was passed in Jammu and its area of operation was in Jammu itself. Section 56 of the Specific Relief Act provides that an injunction cannot be granted to interfere with the public duties of any department of the Government or the State or with the sovereign acts of foreign Government. In the instant case, vires of transfer order were challenged which was passed by the petitioners herein while performing their public duties. So the cognizance of the case by the learned Munsiff was also prohibited by this specific provision of law.

(3.) Undoubtedly, the impugned order has been passed by taking aid of O. 39, Rr. 1 and 2, C. P. C. which is appealable under O. 43, R. 1 Cl. (R), C. P. C. The appeal could lie before the learned District Judge, Srinagar.