Case: Baldota Brothers Vs. Libra Mining Works

been made out for the exercise of this Courts jurisdiction under Art. 136 of the Constitution. There is no question of one division bench sitting in judgment over another; the same Court hears the same matters at different stages, one for the limited purpose of granting special leave, when only the test of prima facie arguable point is applied, and the other for the final disposal when the question raised is considered in the presence of both the parties and when, it is in possession of all the relevant material. We therefore, hold that unless this Court is satisfied that the appeal raises a question that justifies the exercise of its discretionary jurisdiction under Art. 136 of the Constitution, the appeal is liable to be dismissed without further investigation into the merits of the case.4. The learned Solicitor-General then contends that the appeal raises the question of the appellants right to hold the other party to the bargain, and on the basis of that right to obtain an order of injunction with their suit in the Kakinada Court, and restraining the respondents from proceeding by that means to have his suit tried in Bombay, and that question is of sufficient importance to attract the jurisdiction of this Court under Art. 136 of the Constitution. There is an underlying fallacy in this argument. This appeal is not against the final decree in the suit, but only against the interlocutory order in an application for injunction pending the disposal of the suit. The Bombay High Court did not decide, either expressly or by necessary implication, that the Kakinada Court had jurisdiction to decide the suit. That plea was taken in the Kakinada suit and a specific issue was raised thereon, and the said issue falls to be decided on oral and documentary evidence. If the Kakinda Court holds that it has no jurisdiction, that suit will be dismissed. If, on the other hand, it comes to the conclusions that it has jurisdiction and decides the case on merits, it will have done so only on its finding that the suit contract is that entered into between the parties on October 17, 1956, and that the said contract does not contain a clause conferring sole jurisdiction on the Bombay Courts.The decision of the Kakinda Court, or the final decision made by the highest appellate Court against that decree, would not preclude the Bombay Court from proceeding with its suit, though the finding both on the question of jurisdiction and on the merits of the subject-matter which are common to the two suits might operate as res judicata. We cannot, therefore, appreciate the argument that the Bombay Court, by refusing to issue an injunction, has decided on the rights of parties, though, if the contention of the appellants is ultimately upheld by the Kakinada Court, they may be put to some inconvenience. The only point, therefore, that arises in this appeal is a simple one namely, whether the Bombay High Court has rightly exercised its discretion in refusing to issue an injunction against the respondents from proceeding with their Kakinda suit.5. Mody, J. assumed that he had jurisdiction to issue an order of injunction in suitable cases. Whether the power of the Bombay High Court to issue an injunction dehors the provisions of Rr. 1 and 2 O. XXXIX of the Code of Civil Procedure rests on S. 151 of the Code as held by the Bombay High Court in Ram Bahadur Thakur and Co. v. Devidayal (Sales) Ltd., ILR (1954) Bom 334 : (AIR 1954 Bom 176 ), or in exercise of power under its general equity jurisdiction independent of the Code of Civil Procedure as held by the High Courts of Calcutta and Madras in Rash Behary Dev v. Bhowani Churn Bhose, ILR 34 Cal 97 , Mungle Chand v. Gopal Ram, ILR 34 Cal 101 , Govindarajulu Nayudu v. Imperial Bank of India, Vellore, 35 Mad LW 168 : (AIR 1932 Mad 180 ) and Karuppayya v. Ponnusami, ILR 56 Mad 563 : (AIR 1933 Mad 500 (2)), it is not, and cannot be, disputed that the power is a discretionary one vested in a Court to be exercised for the ends of justice, having regard to the circumstances of each case. In the present case, though the learned Judge has not given any reason for his order, the affidavits filed by the parties disclose that a substantial question of fact falls to be decided for sustaining the plea of exclusive jurisdiction of the Bombay High Court, and that the application was filed at a belated stage after the Kakinada suit was ripe for hearing. The appellants may have a good case on merits, on which we do not, and cannot, express any opinion, for the question falls to be decided on evidence, and it may be also that they have good reason to account for the long delay in filing their application. But the learned Judge must have taken into consideration all the relevant circumstances, and, in exercise of his discretion, refused to give an injunction. It is not possible to say that under such circumstances, the question raised in one that attracts the discretionary jurisdiction of this Court. We understand from our brother, Sarkar, J., who was one of the members of the bench which granted leave, that special leave was granted in this case as the order of Mody J., assumed the correctness of the proposition that a chartered High Court can issue an injunction restraining the disposal of a suit filed earlier in another Court in or outside its territorial jurisdiction, notwithstanding the fact that the subsequent suit attracts the provisions of S. 10 of the Code of Civil Procedure and the said point is of sufficient importance. That point does not arise now, as we have held that even on the assumption that the Bombay High Court has jurisdiction to issue an injunction, the order made in exercise of its jurisdiction is purely a discretionary one.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]There is therefore no distinction in the scope of the exercise of the power under Art 136 of the Constitution at the stage of application for special leave and at the stage when the appeal is finally disposedtherefore, hold that unless this Court is satisfied that the appeal raises a question that justifies the exercise of its discretionary jurisdiction under Art. 136 of the Constitution, the appeal is liable to be dismissed without further investigation into the merits of theis an underlying fallacy in this argument. This appeal is not against the final decree in the suit, but only against the interlocutory order in an application for injunction pending the disposal of the suit. The Bombay High Court did not decide, either expressly or by necessary implication, that the Kakinada Court had jurisdiction to decide the suit. That plea was taken in the Kakinada suit and a specific issue was raised thereon, and the said issue falls to be decided on oral and documentary evidence. If the Kakinda Court holds that it has no jurisdiction, that suit will be dismissed. If, on the other hand, it comes to the conclusions that it has jurisdiction and decides the case on merits, it will have done so only on its finding that the suit contract is that entered into between the parties on October 17, 1956, and that the said contract does not contain a clause conferring sole jurisdiction on the Bombaycannot, therefore, appreciate the argument that the Bombay Court, by refusing to issue an injunction, has decided on the rights of parties, though, if the contention of the appellants is ultimately upheld by the Kakinada Court, they may be put to somethe present case, though the learned Judge has not given any reason for his order, the affidavits filed by the parties disclose that a substantial question of fact falls to be decided for sustaining the plea of exclusive jurisdiction of the Bombay High Court, and that the application was filed at a belated stage after the Kakinada suit was ripe for hearing. The appellants may have a good case on merits, on which we do not, and cannot, express any opinion, for the question falls to be decided on evidence, and it may be also that they have good reason to account for the long delay in filing their application. But the learned Judge must have taken into consideration all the relevant circumstances, and, in exercise of his discretion, refused to give an injunction. It is not possible to say that under such circumstances, the question raised in one that attracts the discretionary jurisdiction of this Court. We understand from our brother, Sarkar, J., who was one of the members of the bench which granted leave, that special leave was granted in this case as the order of Mody J., assumed the correctness of the proposition that a chartered High Court can issue an injunction restraining the disposal of a suit filed earlier in another Court in or outside its territorial jurisdiction, notwithstanding the fact that the subsequent suit attracts the provisions of S. 10 of the Code of Civil Procedure and the said point is of sufficient importance. That point does not arise now, as we have held that even on the assumption that the Bombay High Court has jurisdiction to issue an injunction, the order made in exercise of its jurisdiction is purely a discretionary one.