IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.343 of 2007 1. UNION OF INDIA, through G.M. (Con), South East Central Railway, Bilashpur, Madhya Pradesh. 2. Deputy Chief Engineer Con), Balaghat at Nagpur, South East Central Railway, Nagpur. ---------------------- Defendants/Appellants. Versus YOGENDRA SINGH, S/o – Late Triveni Singh, resident of Mahdauli, Subdivision – Teghra, P.S. – Bhagwanpur, District – Begusarai – 821119. ------------------- Plaintiff/Respondents. ------- For the appellants : Mr. Bindhyachal Singh, Adv. Mr. Sushil Kr. Singh, Adv. For the Respondents : Mr. Pramod Kumar Sinha, Adv. Mr. Arvind Kumar Sharma, No. 1, Adv. ********* 10. 05.07.2010 This is an appeal preferred against order dated 14.08.2006, passed in Title Suit No. 191/2005, directing the appellants and other defendants (who are not made party to this appeal) to maintain status quo till final decision of the suit. 2. As it appears from the submission of learned counsels appearing on behalf of the parties as well as from the impugned order that the matter in the suit was involved with respect to two tenders were published by Head Office of South East Central Railway for supply and stacking of 56300 cum machine crushed stone ballast (conforming to specification of ballast issued by RDSO in January, 1999 corrected upto date). The plaintiff firm was successfully tendered bid and the tender was initially accepted, but, at subsequent stage some controversy arose as regard to initiation of the work and payments etc. giving rise to filing of the suit. Wherein initially petition under order XXXIX Rule 1 of the Civil Procedure Code seeking ad interim - 2 - injunction against the defendants restraining them from taking any coercive steps was filed but, after hearing the parties which was refused by the court below observing that apprehension of the plaintiff appears to be imaginary one. 3. It further appears that on the basis of a letter issued by the authorities, of course, prior to refusal of prayer of injunction, the plaintiff respondent filed another petition under Section 94 of the Civil Procedure Code, wherein the court below after hearing the parties passed the impugned order directing the defendants to maintain status quo giving rise to this appeal. 4. This appeal has been filed almost delayed by 11 months and it is submitted on behalf of the appellant that since after passing of the impugned order before filing of the appeal, several formalities were to be adopted by the Railway which cause the delay and there was nothing to show that any intentional delay was caused in preferring the appeal. On the other hand, learned counsel for the plaintiff respondent vehemently objected the submissions and contended that the defendant appellant is not cooperative in early disposal of the suit and the delay caused in filing of the appeal deserves not to be condoned since the explanation offered are not satisfactory. 5. The learned counsel for the appellant mainly contended that once prayer of injunction was refused by the court below after hearing the parties. It was not open to pass subsequent order taking shelter of section 94 of the Civil - 3 - Procedure Code, which is not independent provision. On the other hand, learned counsel for the plaintiff respondent by placing reliance upon a decision in case of Manohar Lal v. Seth Hiralal reported in A.I.R. 1962 SC 527 that court below has exercised its power for which he had jurisdiction. 6. It is also contended on behalf of the appellants that question of territorial jurisdiction of the court below besides question of jurisdiction in view of arbitration clause in the agreement entered into between the parties though has been mentioned in the impugned order as the points raised by the defendant-appellants, but, the court below has ignored all such submissions whereas it was incumbent upon the court below to decide the issue first and dismiss the subsequent prayer for injunction. Learned counsel for the plaintiff respondent submitted that all such issues can be decided at appropriate stage, but, it is the defendant appellant who is not taking any step and matters before the court below is lying as it is. 7. It appears from the impugned order that court below after considering the submissions of the parties and the materials available earlier refused the prayer of the plaintiff respondent only on the ground that at the relevant time there was no material to show that plaintiff had any apprehension of taking of any coercive step at the hands of defendants appellants and accordingly earlier petition dated 24.08.2005 was dismissed on 21.06.2006, just before passing such order injunction letter dated - 4 - 16.05.2006 issued by Deputy Chief Engineer, Nagpur, giving rise to filing of the subsequent petition and court below finding that apprehension of the plaintiff proved true and if order of maintaining status quo is not passed and plaintiff respondent is not giving the relief, it shall be against the interest of justice and he suffer substantial loss taking into consideration all such aspects and the impugned order was passed. So far contention of learned counsel for the appellant that second injunction petition is not maintainable is concerned it has in fact no substance. The Civil Procedure Code has made provision for issuance of ad interim injunction under order XXXIX as well as under section 94 of the Civil Procedure Code. Irrespective of these two provisions the civil courts has inherent jurisdiction also and there is nothing to prohibit passing any order to protect interest of justice. This view stands substantiated by the Apex Court in case of Manohar Lal v. Seth Hiralal reported in A.I.R. 1962 SC 527. The relevant paragraph 17 to 20 of the decision are as such: “17. On the first question it is argued for the appellant that the provisions of cl. (c) of S. 94 C.P.C., make it clear that interim injunctions can be issued only if a provision for their issue is made under the rules, as they provide that a Court may, if it is so prescribed, grant temporary injunctions in order to prevent the ends of justice from being defeated, that the word „prescribed‟ according to S. - 5 - 2, means „prescribed by rules‟ and that rules 1 and 2 or Order XXXIX lay down certain circumstances in which a temporary injunction may be issued. 18. There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code: Varadacharlu v. Narsimha charlu, AIR 1926 Mad 258; Govindarajulu v. Imperial Bank of India, AIR 1932 Mad 180; Karuppayya v. Ponnuswami, AIR 1933 Mad 500(2); Murugesa Mudali v. Angamuthu Mudali, AIR 1938 Mad 190 and Subramanian v. Seetarama, AIR 1949 Mad 104. The other view is that a Court can issue an interim injunction under circumstances which are not covered by Order XXXIX of the Code, if the Court is of opinion that the interests of justice require the issue of such interim injunction: Dhaneshwar Nath v. Ghanshyam Dhar, AIR 1940 All 185; Firm Bichchha Ram Baburam v. firm Baldeo Sahai Surajmal, AIR 1940 All 241; Bhagat Singh v. Jagbir Sawhney, AIR 1941 Cal 670 and Chinese Tannery Owners‟ Association v. Makhan Lal, AIR 1952 Cal 560. We are of opinion that the latter view is correct and that the - 6 - Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX C.P.C. There is no such expression in S. 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code. it is well settled that the provisions of the Code are not exhaustive, for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression „if it is so prescribed‟ is only this that when the rules 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 S. 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court‟s exercising that jurisdiction and the Court exercises its inherent - 7 - jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. it is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of S.94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power. 19. There is nothing in Order XXXIX, rules 1 and 2, which provide specifically that a temporary injunction is not to be issued in cases which are not mentioned in those rules. The rules only provide that in circumstances mentioned in them the Court may grant a temporary injunction. 20. Further, the provisions of S. 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. Section 151 reads: “ Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court”. 8. So far question of jurisdiction of the court below is concerned, it is first to be decided by the court where suit is - 8 - pending and law makers have made provision for determination of such questions if covered under order XIV Rule 2 of the Civil Procedure Code, also as preliminary issue, otherwise, all relevant issues can be decided simultaneously. It is for the defendant appellant to pursue the court below and obtain appropriate order there from. 9. This appeal is otherwise barred by limitation also almost 11 months after passing of the impugned order it has been preferred and the ground taken is that though certified copy of the impugned order was made available to learned advocate within 8 days of its passing but, it took almost 2 months in arriving before the appropriate authorities at Nagpur, and thereafter travelled from here to there and 4 to 5 months time was taken to engaging lawyer to represent the authority at this court. All such ground taken in the I.A. application No. 4198/2007 appears not sufficient to explain the delay caused. 10. Thus on both counts, I find this appeal has no merit, accordingly, it is dismissed. Simultaneously, the court below is directed to proceed expeditiously and preferably dispose of the suit within a year and if either of the side fails to cooperate deal with them in accordance with law with iron hands. Rajeev/ (Akhilesh Chandra, J.)