MOHD. AKBER GANAI Vs. GH. QADIR BHAT

JUDGEMENT

(1.) THE question involved in this revision petition is as to whether order of injunction can be passed by a Court in an application for seeking restoration of suit dismissed in default.

(2.) IT seems that the civil suit was filed by the present Petitioners before the trial court against the Respondents which was dismissed in default on 31st of March, 2008 and application seeking restoration of the suit was filed along with an application for grant of interim injunction. The trial court while dealing with the application for grant of interim injunction decided that the court had no power to grant interim injunction as there was no lis pending before it. It is this order which is subject matter of challenge before this Court.

(3.) IN the present case, admittedly there is no suit which is pending, as such, no application under Order 39 Rules 1 and 2 can be filed. However, under Section 94 of the Act, the court has the power to grant temporary injunction even in a case where there is no suit pending. The effect of the expression 'if it is so prescribed' in Section 94 is only this that when the rules in Order 39, Code of Civil Procedure prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunction, but it could do that in the exercise of its inherent jurisdiction. Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. When the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code. There being no such expression in Section 94 which expressly prohibits issuance of temporary injunction in circumstances not covered under Order 39 or rules made thereunder. The Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39 Code of Civil Procedure.