Title: Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal on 16 November, 1961

Supreme Court of India
Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal on 16 November, 1961
Equivalent citations: 1962 AIR 527, 1962 SCR SUPL. (1) 450, AIR 1962 SUPREME COURT 527, 1963 ALL. L. J. 169
Author:
Raghubar Dayal
Bench:
Raghubar Dayal
,
K.N. Wanchoo
,
K.C. Das Gupta
,
J.C. Shah
PETITIONER:
MANOHAR LAL CHOPRA

	Vs.

RESPONDENT:
RAI BAHADUR RAO RAJA SETH HIRALAL

DATE OF JUDGMENT:
16/11/1961

BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
WANCHOO, K.N.
GUPTA, K.C. DAS
SHAH, J.C.

CITATION:
 1962 AIR  527		  1962 SCR  Supl. (1) 450
 CITATOR INFO :
 F	    1965 SC1144	 (6)
 R	    1966 SC1899	 (5)
 F	    1983 SC1272	 (21)
 R	    1986 SC 421	 (34)


ACT:
     Civil Procedure-Inherent  powers  of  courts-
Temporary   Injunction-Restraining    party   from
proceeding with suit in another State-Legality and
propriety of-
Code  of Civil  Procedure
, 1908 (V of
1908), ss. 94(c) 151:O. 39 r. 1.



HEADNOTE:
     M filed  a suit  at  Asansol  against  H  for
recovery of  money. Later,  H filed a counter suit
at Indore  against M for recovery of money. In the
Asansol suit  one of  the defences raised by H was
that the  Asansol court	 had  no  jurisdiction	to
entertain the suit. H applied to the Asansol court
to stay the suit but the court refused the prayer.
An appeal  to the  Calcutta High Court against the
refusal to  stay was  dismissed with the direction
that the  preliminary issue of jurisdiction should
be disposed  of by  the trial  court  immediately.
Thereupon, H  applied to  the Indore  court for an
injunction to  restrain M from proceeding with the
Asansol suit  pending the  disposal of	the Indore
suit and  the court  purporting to act under O. 39
Code of	 Civil Procedure
granted the injunction. M
appealed to  the Madhya	 Bharat High  Court  which
dismissed the appeal holding that though O. 39 was
not applicable to the case the order of injunction
could be  made under  the inherent  powers of  the
court under
s. 151
Code of Civil Procedure.
^
     Held,  that   the	order  of  injunction  was
wrongly granted and should be vacated.
     Per, Wanchoo,  Das Gupta,	and  Dayal,JJ.-The
Civil courts had inherent power to issue temporary
injunctions in cases which were not covered by the
provisions of  O. 39  Civil  Procedure	Code.  The
provisions of the Code were not
451
exhaustive. There  was no  prohibition	in  s.	94
against the  grant of  a  temporay  injunction	in
circumstances not  covered by  O. 39. But inherent
powers	were   not  to	be  exercised  when  their
exercise  was	in  conflict   with  the   express
provisions  of	 the  Code   or	 was  against  the
intention of  the legislature. Such powers were to
be exercised  in very exceptional circumstances. A
plaintiff of  a suit in another jurisdiction could
only be	 restrained from  proceeding with his suit
if the	suit was vexatious and useless. It was not
so in  the present  case. It  was proper  that the
issue as  to jurisdiction should be decided by the
Asansol court  as directed  by the  Calcutta  High
Court. The  Indore court  could	 not  decide  this
issue. Beside, it was open to the Asansol court to
ignore the  order  of  the  Indore  court  and	to
proceed with  the suit.	 This would  place M in an
impossible position.  An order	of a  court should
not lead to such a result.
     Varadacharlu v.  Narsimha Charlu, A.I.R. 1926
Mad.258; Govindarajalu	v. Imperial Bank of India,
A.I.R. 1932  Mad. 180  ; Karuppayya v. Ponnuswami,
A.I.R.	1933   Mad.  500(2);  Murugesa	Mudali	v.
Angamuthu  Madali,   A.I.R.  1938   Mad.  190  and
Subramanian v.	Seetarama, A.I.R.  1940 Mad.  104,
not approved.
     Dhaneshwar Nath  v.  Ghanshyam  Dhar,  A.I.R.
1940 All.185,  Firm Richchha  Ram v.  Firm  Baldeo
Sahai, A.I.R. 1940 All.241, Bhagat Singh v. Jagbir
Sawhney, A.I.R.	 1941 Cal. 670 and Chinese Tannery
Owners' Association  v. Makhan	Lal,  A.I.R.  1952
Cal. 550, approved.
     Padam Sen	v. State of U.P. [1961] 1 S. C. R.
884, Cohen  v. Rothfield, L. R. [1919] 1 K. B. 410
and Hyman  v. Helm,  L. R.(1883)  24 Ch.  D.  531,
relied on.
     Per, Shah,	 J.-Civil courts  have no inherent
power to  issue injunctions in case not covered by
O. 39,	rr. 1  and 2
Code of Civil Procedure
. The
power of  civil courts,	 other than Chartered High
Courts, to  issue injunctions must be found within
the terms  of
s.  94
and O. 39, rr. 1 and 2. Where
an express  provision is made to meet a particular
situation the  Code must be observed and departure
therefrom is not permissible. Where the Code deals
expressly with	a particular  matter the provision
should normally be regarded as exhaustive.
     Padam Sen v. State of U. P. [1961] 1 S. C. R.
884, relied upon.



JUDGMENT:
CIVIL APPELLATE  JURISDICTION:  Civil  Appeal
No. 346 of 1958.
452
Appeal by special leave from the judgment and
order dated  May 10,  1955, of	the former  Madhya
Bharat High Court in Misc. Appeal No. 26 of 1954.
S. N. Andley, Rameshwar Nath and P. L. Vohra,
for the appellant.
S. T.  Desai,  K.	B.  Bhatt  and	B.  R.	L.
Iyengar, for the respondent.
1961. November  16. The  Judgment of Wanchoo,
Das Gupta and Dayal,JJ., was delivered by Dayal J.
Shah J., delivered a separate Judgment.
RAGHUBUR  DAYAL,  J.-The  appellant  and  the
respondent entered  into a  partnership at  Indore
for working  coal mines	 at Kajora  gram (District
Burdwan) and  manufacture of  cement etc.,  in the
name and  style of  'Diamond Industries'. The head
office of  the	partnership  was  at  Indore.  The
partnership was dissolved by a deed of dissolution
dated August  22, 1945.	 Under the  terms of  this
deed, the  appellant made himself liable to render
full, correct  and true	 account of all the moneys
advanced by  the respondent  and  also	to  render
accounts of the said partnership and its business,
and was	 held entitled	to 1/4th of Rs. 4,00,000/-
solely contributed  by the  respondent toward  the
capital of  the partnership.  He was, however, not
entitled to  get this  amount unless  and until he
had  rendered  the  accounts  and  they	 had  been
checked and audited.
The  second   proviso  at	 the  end  of  the
convenants in the deed of dissolution reads:
"Provided however  and it  is agreed	by
     and between  the parties  that as the parties
     entered into  the	partnership  agreement	at
     Indore  (Holker   State)  all   disputes  and
     differences whether  regarding money or as to
     the relationship  or as  to their	rights and
     liabilities of  the parties hereto in respect
     of the
453
partnership hereby dissolved or in respect of
     question arising  by and  under this document
     shall be  decided amicably	 or  in	 court	at
     Indore and at nowhere else."
On September 29, 1945, a registered letter on
behalf	of   the  respondent   was  sent   to  the
appellant. This	 required the appellant to explain
to and	satisfy the respondent at Indore as to the
accounts of  the said colliery within three months
of the	receipt of  the notice. It was said in the
notice	that   the  accounts   submitted  by   the
appellant had not been properly kept and that many
entries	 appeared   to	be   wilfully	falsified,
evidently with	malafide intentions and that there
appeared in  the account  books various	 false and
fictitious entries  causing wrongful  loss to  the
respondent and wrongful gain to the appellant. The
appellant sent	a reply to this notice on December
5, 1935,  and denied  the various allegations, and
requested the respondent to meet him at Asansol or
Kajoraram on  any day  suitable to him, within ten
days from the receipt of that letter.
On August	18, 1948, the appellant instituted
Suit M.	 S. No.	 33 of	1948 in	 the Court  of the
Subordinate   Judge   at   Asansol   against   the
respondent for	the recovery  of Rs. 1,00,000/- on
account of his share in the capital and assests of
the partnership	 firm 'Diamond Industries' and Rs.
18,000/- as interest for detention of the money or
as   damages	or   compensation   for	  wrongful
withholding of	the  payment.  In  the	plaint	he
mentioned about	 the respondent's  notice and  his
reply and  to a	 second letter	on behalf  of  the
respondent and	his own	 reply thereto.	 A copy of
the  deed   of	dissolution,   according  to   the
statement in paragraph 13 of the plaint, was filed
along with it.
On	 October  27,  1948,  respondent  filed	 a
petition under
s. 34
of the Arbitration Act in the
Asansol Court praying for the stay of the suit in
454
view of	 the arbitration agreement in the original
deed of partnership. This application was rejected
on August 20, 1949.
Meanwhile, on January 3, 1949, the respondent
filed Civil  Original Suit  No. 71  of 1949 in the
Court of  the District	Judge, Indore, against the
appellant,  and	  prayed  for  a  decree  for  Rs.
1,90,519-0-6 against  the  appellant  and  further
interest on the footing of settled accounts and in
the alternative	 for a	direction to the appellant
to  render   true  and	 full  accounts	  of   the
partnership.
On November  28, 1949,  the respondent  filed
his  written   statement  in  the  Asansol  Court.
Paragraphs 19 and 21 of the written statement are:
"19. With  reference to  paragraph 21 of
     the plaint,  the defendant	 denies	 that  the
     plaintiff has any cause of action against the
     defendant	or   that  the	alleged	 cause	of
     action, the  existence of	which  is  denied,
     arose  at	 Kajora	 Colliery.  The	 defendant
     craves  reference	 to  the   said	 deed	of
     dissolution whereby  the  plaintiff  and  the
     defendant agreed  to have	disputes, if  any,
     tried  in	 the  Court   at  Indore.  In  the
     circumstances,  the  defendant  submits  that
     this Court	 has no	 jurisdiction to  try  and
     entertain this suit.
21. The  suit is vexatious, speculative,
     oppressive and  is	 instituted  malafide  and
     should be dismissed with costs."
Issues were  struck on February 4, 1950. The first
two issues are:
"1.  Has   this  Court  jurisdiction	to
     entertain and try this suit?
2.  Has   the	 plaintiff   rendered  and
     satisfactorily explained  the accounts of the
     partnership  in   terms  of   the	 deed	of
     dissolution of partnership ?"
455
In December  1951, the  respondent applied in
the Court  at Asansol for the stay of that suit in
the  exercise	of  its	  inherent   powers.   The
application was	 rejected on  August 9,	 1952. The
learned Sub-Judge held:
"No act  done or proceedings taken as of
     right in  due course  of law  is 'an abuse of
     the process of the Court' simply because such
     proceeding is  likely to  embarass the  other
     party."
He therefore held that there could be no scope for
acting under  s. 151,
Code of Civil Procedure
, as
s. 10
of that Code had no application to the suit,
it having been instituted earlier than the suit at
Indore. The  High Court of Calcutta confirmed this
order on May 7, 1953, and said:
"We  do   not	  think	  that,	  in   the
     circumstance  of	these  cases  and  on  the
     materials on record, those orders ought to be
     revised.  We   would  not	 make  any   other
     observation lest  it might	 prejudice any	of
     the parties."
The  High   Court  further   gave  the	 following
direction:
"As the  preliminary issue  No.1 in  the
     two Asansol  suits have been pending for over
     two years, it is only desirable that the said
     issues should be heard out at once. We would,
     accordingly, direct  that the  hearing of the
     said issues should be taken up by the learned
     Subordinate   Judge   as	expeditiously	as
     possible and  the learned	Subordinate  Judge
     will take immediate steps in that direction."
Now we  may refer	to what	 took place in the
Indore suit  till then.	 On April  28,	1950,  the
appellant applied  to the Indore Court for staying
that suit  under
ss.  10
and
151
Code	 of  Civil
Procedure.
456
The application	 was opposed  by the respondent on
three grounds. The first ground was that according
to the term in the deed of dissolution, that Court
alone could  decide the	 disputes. The	second was
that under  the provisions  of the Civil Procedure
Code in	 force in  Madhya  Bharat,  the	 court	at
Asansol was  not an  internal Court  and that  the
suit filed  in Asansol	Court could  not have  the
effect of  staying the	proceedings of	that suit.
The third was that the two suits were of different
nature, their  subject matter  and relief  claimed
being different.  The  application  for	 stay  was
rejected on  July 5, 1951. The Court mainly relied
on the	provisions of  the Second  proviso in  the
deed of	 dissolution. The  High	 Court	of  Madhya
Bharat confirmed that order on August 20, 1953.
The position then, after August 20, 1953, was
that the  proceedings in  both the  suits were	to
continue, and  that the	 Asansol  Court	 had  been
directed to  hear the  issue of jurisdiction at an
early date.
It	 was   in  these  circumstances	 that  the
respondent applied  under
s.  151
, Code	 of  Civil
Procedure on  September 14,  1953, to  the  Indore
Court,	for   restraining   the	  appellant   from
continuing the	proceedings in	the suit  filed by
him  in	 the  Court  at	 Asansol.  The	respondent
alleged that  the  appellant  filed  the  suit	at
Asansol in  order to  put him  to  trouble,  heavy
expenses and  wastage of  time in going to Asansol
and that  he was  taking steps for the continuance
of the	suit filed in the Court of the Subordinate
Judge of  Asansol. The	appellant  contested  this
application and	 stated that  he  was  within  his
rights to institute the suit at Asansol, that that
Court was  competent to	 try it and that the point
had been  decided  by  overruling  the	objections
raised by the respondent and that the respondent's
objection for the stay or
457
proceedings in	the  Court  at	Asansol	 had  been
rejected by  that Court. He denied that his object
in instituting	the suit  was to cause trouble and
heavy expenses to the respondent.
It may  be mentioned  that the respondent did
not state  in his application that his application
for the	 stay of  the suit  at	Asansol	 had  been
finally dismissed  by the  High Court  of Calcutta
and that  that Court  had directed the trial Court
to decide  the issue  of jurisdiction  at an early
date. The  appellant, too,  in his  objection, did
not specifically  state that  the order	 rejecting
the  respondents's   stay  application	 had  been
confirmed by  the High	Court at Calcutta and that
that Court  had directed  for an  early hearing of
the issue of jurisdiction.
The  learned   Additional	 District   Judge,
Indore, issues	interim injunction under O. XXXIX,
Code  of   Civil  Procedure
,   to  the	 appellant
restraining him	 from proceeding  with his Asansol
suit pending  decision of  the Indore suit, as the
appellant was  proceeding with the suit at Asansol
in spite  of the  rejection of his application for
the stay  of the  suit at  Indore, and	,  as  the
appellant wanted  to violate  the provision in the
deed of	 dissolution about  the Indore Court being
the proper  forum for deciding the dispute between
the parties.  Against this  order,  the	 appellant
went in	 appeal to the High Court of Judicature at
Madhya	Bharat,	 contending  that  the	Additional
District  Judge	 erred	in  holding  that  he  was
competent to  issue such  an interim injunction to
the appellant  under O. XXXIX
of the Code of Civil
Procedure
and that it was a fit case for the issue
of such	 an injunction	and that,  considering the
provisions of  O. XXXIX,  the  order  was  without
jurisdiction.
The High  Court dismissed	the appeal  by its
order dated  May  10,  1955.  The  learned  Judges
agreed with the contention that O. XXXIX, r. 1 did
not
458
apply to  the facts  of the  case. They,  however,
held that  the order of injunction could be issued
in the	exercise of  the inherent  powers  of  the
Court under  s. 151,
C.P.C
. It	 is  against  this
order  that   the  appellant  has  preferred  this
appeal, by special leave.
On	 behalf	  of  the   appellant,	two   main
questions have	been raised for consideration. The
first is  that the  Court could	 not exercise  its
inherent   powers   when   there   were	  specific
provisions in
the Code of Civil Procedure
for the
issue of interim injunctions, they being s. 94 and
O.XXXIX. The  other question is whether the Court,
in the	exercise  of  its  inherent  jurisdiction,
exercised its discretion properly, keeping in mind
the facts  of the case. The third point which came
up for	discussion at  the hearing  related to the
legal effect  of the second proviso in the deed of
dissolution on	the maintainability of the suit in
the Court at Asansol.
We do  not propose	 of express any opinion on
this question of jurisdiction as it is the subject
matter of an issue in the suit at Asansol and also
in the	suit at	 Indore and because that issue had
not yet been decided in any of the two suits.
On the  first question  it is  argued for the
appellant that the provisions of cl. (c) of
s. 94
,
Code of Civil Procedure make it clear that interim
injunctions can be issued only if a provisions 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.	 2,  means
'prescribed by	rules' and  that rr.  1 and  2	of
O.XXXIX lay  down certain circumstances in which a
temporary injunction may be issued.
There is  difference of  opinion between  the
High Court on this point. One view is that a Court
459
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
(
1), Govindarajulu
v. Imperial  Bank  of  India
(
2),  Karuppayya	v.
Ponnuswami
(
3),   Murugesa  Mudali  v.	 Angamuthu
Mudali
(
4)  and Subramanian  v. Seetarama
(5). The
other view  is that  a Court  can issue an interin
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  interin  injunction:
Dhaneshwar  Nath   v.  Ghanshyam  Dhar
(
6),  Firm
Bichchha Ram v. Firm Baldeo Sahai
(7),Bhagat Singh
v. jagbir  Sawhney (8) and Chinese Tannery owners'
Association v.	Makhan Lal
(9). We are of opinion
that the  latter view  is  correct  and	 that  the
Courts	have   inherent	 jurisdiction	to   issue
temporary injunctions  in circumstances	 which are
not covered  by the provisions of O.XXXIX,
Code of
Civil Procedure
. There is no such expression in s.
94  which  expressly  prohibits	 the  issue  of	 a
temporary injunction  in circumstances not covered
by O.  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
460
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 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 powers.
There is  nothing in  O. XXXIX,  rr. 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.
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 the justice or to
     prevent abuse of the process of the Court."
A similar	question about	the powers  of the
Court to issue a commission in the exercise of its
powers under  s. 151  of the Code in circumstances
not covered  by s.  75 and  Order XXVI,	 arose	in
Padam Sen  v. The  State of  Uttar Pradesh
(1) and
this  Court  held  that	 the  Court  can  issue	 a
commission in  such circumstances.  It observed at
page 887 thus:
"The inherent  powers of  the  Court  are	in
     addition to the powers specifically conferred
     on
461
the Court by the Code. They are complementary
     to those powers and therefore it must be held
     that the  Court is	 free to exercise them for
     the purpose  mentioned in	s. 151 of the Code
     when the  exercise of  those powers is not in
     any  way  in  conflict  with  what	 has  been
     expressly provided in the Code or against the
     intentions of the Legislature."
These observations  clearly mean that the inherent
powers are  not	 in  any  way  controlled  by  the
provisions of  the Code	 as has	 been specifically
stated in  151 itself. But those powers are not to
be  exercised	when  their  exercise  may  be	in
conflict with  what had been expressly provided in
the  Code   or	against	  the  intentions  of  the
Legislature.  This   restriction,  for	 practical
purposes, on  the exercise  of these powers is not
because	 these	 powers	 are   controlled  by  the
provisions of  the Code	 but because  it should be
presumed that  the procedure specifically provided
by  the	  Legislature  for   orders   in   certain
circumstances is  dictated  by	the  interests	of
justices.
In
the  above case
, this Court did not uphold
the order of the Civil Court, not coming under the
provisions   of	   order   XXVI,    appointing	 a
commissioner for  seizing the account books of the
plaintiff on  the application  of the  defandants.
The order was held to be defective not because the
Court had  no power  to appoint	 a commissioner in
circumstances not  covered by  s. 75  and O. XXVI,
but because  the  power	 was  exercised	 not  with
respect to  matters of	procedure but with respect
to a  matter affecting	the substantive	 rights of
the plaintiff.	This is	 clear	from  the  further
observations made at page 887. This Court said:
"The question  for determination  is  whether
     the impugned  order of  the Additional Munsif
     appointing Shri Raghubir Pershad Commissioner
     for seizing the plaintiff's books of account
462
can be said to be an order which is passed by
     the Court	in the	exercise of  its  inherent
     powers. The  inherent powers  saved by s. 151
     of the Code are with respect to the procedure
     to be  followed by	 the Court in deciding the
     cause before  it. These powers are not powers
     over  the	 substantive  rights   which   any
     litigant possesses.  Specific powers  have to
     be conferred  on the  Courts for passing such
     orders which  would affect	 such rights  of a
     party. Such  powers cannot	 come  within  the
     scope of  inherent powers	of  the	 Court	in
     matters of procedure, which powers have their
     source  in	  the  Court  possessing  all  the
     essential powers to regulate its practice and
     procedure."
The case  reported	 as  Maqbul  Ahmad  Pratap
Narain Singh  does not	lay down that the inherent
powers	of   the  Court	  are  controlled  by  the
provisions of  the Code.  It simply holds that the
statutory discretion  possessed by a Court in some
limited respects  under an Act does not imply that
the  Court   possesses	a  general  discretion	to
dispense with  the provisions of that Act. In that
case, an  application for  the	preparation  of	 a
final decree  was presented  by the  decree-holder
beyond the period of limitation prescribed for the
presentation  of   such	 an  application.  It  was
however contended  that the  Court possessed  some
sort of	 judicial discretion which would enable it
to relieve the decree-holder from the operation of
the
Limitation Act
in a case of hardship. To rebut
this contention, it was said at page 87:
"It  is  enough  to  say  that  there  is	no
     authority	 to    support	 the   proposition
     contended for. In their Lordships' opinion it
     is impossible to hold that, in a matter which
     is governed  by Act,  an Act  which  in  some
     limited respects  gives the Court a statutory
     discretion, there can be
463
implied in	 the Court,  outside the limits of
     the Act,  a general  discretion  to  dispense
     with its  provisions. It  is to be noted that
     this view	is supported by the fact that
s. 3
of the Act is peremptory and that the duty of
     the Court	is to  notice  the  Act	 and  give
     effect to	it, even though it is not referred
     to in the pleadings".
These observations have no bearing on the question
of the	Court's	 exercising  its  inherent  powers
under s.  151 of the Code. The section 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.
Further, 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.
We	 therefore   repel  the	 first	contention
raised for the appellant.
On the  second question,  we are  of  opinion
that in	 view of the facts of the case, the Courts
below  were   in  error	 in  issuing  a	 temporary
injunction to  the appellant  restraining him from
proceeding with the suit in the Asansol Court.
The inherent  powers are  to be  exercised by
the Court  in very  exceptional circumstances, for
which the Code lays down no procedure.
The question  of issuing  an order to a party
restraining him	 from proceeding  with	any  other
suit in	 a  regularly  constituted  Court  of  law
deserves
464
great care  and consideration and such an order is
not to be made unless absolutely essential for the
ends of justice.
In this connection, reference may usefully be
made to	 what was  said in  Cohen v. Rothfield (1)
and which  case appears	 to  have  influenced  the
decision of  the Courts	 in this  country  in  the
matter	of   issuing   such   injunction   orders.
Scrutton, L. J., said at page 413:
"Where it  is proposed to stay an action
     on the  ground that  another is  pending, and
     the action	 to be	stayed is not in the Court
     asked to  make the	 order, the same result is
     obtained by  restraining the  person  who	is
     bringing the  second action  from proceedings
     with it.  But, as	the effect is to interfere
     with  proceedings	in  another  jurisdiction,
     this power	 should be  exercised  with  great
     caution to avoid even the appearance of undue
     interference with another Court".
And again, at page 415:
"While, therefore, there is jurisdiction
     to restrain a defendant from suing abroad, it
     is a  jurisdiction very rarely exercised, and
     to be  resorted to	 with great  care  and	on
     ample evidence produced by the applicant that
     the action	 abroad is  really  vexatious  and
     useless."
The principle  enunciated for  a  plaintiff  in	 a
earlier instituted  suit to  successfully  urge	 a
restraint  order   against   a	 subsequent   suit
instituted by  the defendant,  is stated  thus	in
this case, at page 415:
"It  appears	 to  me	 that  unless  the
     applicant	satisfies   the	 Court	 that	no
     advantage can  be gained  by the defendant by
     proceeding with  the action  in which  he	is
     plaintiff	in  another  part  of  the  King's
     dominions, the Court should not stop him from
     proceeding
465
with  the	 only  proceedings  which  he,	as
     plaintiff, can  control.  The  principle  has
     been repeatedly acted upon."
The injunction	order in  dispute is  not based on
any such  principle. In fact, in the present case,
it is  the defendant  of the previously instituted
suit  that   has  obtained  the	 injunction  order
against the plaintiff of the previously instituted
suit.
The considerations	 which would  make a  suit
vexatious are well explained in Hyman v. Helm (1).
In that	 case, the  defendant, in an action before
the Chancery Division of the High Court brought an
action against	the plaintiffs	in San	Francisco.
The plaintiffs, is an action in England, prayed to
the  Court   to	 restrain   the	 defendants   from
proceeding  further   with  the	  action  in   San
Francisco. It  was contended that it was vexatious
for the	 defendants to	bring the  action  in  San
Francisco as  the witnesses  to	 the  action  were
residents of  England, the  contract  between  the
parties was  an	 English  contract  and	 that  its
fulfilment took place is England. In repelling the
contention that	 the defendants' subsequent action
in San Francisco was vexatious, Brett, M. R., said
at page 537:
"If that  makes an  action vexatious	it
     would be a ground for the interference of the
     Court,  although  there  were  no	action	in
     England at	 all, the  ground for alleging the
     action in San Francisco to be vexatious being
     that it  is brought in an inconvenient place.
     But that is not the sort of vexation on which
     an English Court can act.
It seems to me that where a party claims
     this  interference	  of  the  Court  to  stop
     another action  between the  same parties, it
     lies upon	him to	shew to the Court that the
     multiplicity of  actions  is  vexatious,  and
     that the whole burden of proof lies upon him.
     He does  not satisfy  that burden of proof by
     merely she-
466
wing that there is a multiplicity of actions,
     he	 must  go  further.  If	 two  actions  are
     brought by	 the same  plaintiff  against  the
     same defendant  in England for the same cause
     of action,	 then, as  was said  in Mchonry v.
     Lewis (22	Ch. D.	397) and  the case  of the
     Peruvian Guano  Company v.	 Bockwoldt (23 Ch.
     D. 225),  prima facie  that is vexatious, and
     therefore the  party who  complains of such a
     multiplicity of  actions had made out a prima
     facie case for the interference of the Court.
     Where there  is an	 action by  a plaintiff in
     England, and  a crossaction by a defendant in
     England, whether the same prima facie case of
     vaxation arises  is  a  much  more	 difficult
     point to  decide and I am not prepared to say
     that it does."
It should  be noticed  that this  question for	an
action being  vexatious was  being considered with
respect to  the subsequent  action brought  by the
defendant in  the previously  instituted suit  and
when  the   restraint  order  was  sought  by  the
plaintiff of  the earlier suit. In the case before
us, it is the plaintiff of the subsequent suit who
seeks to  restrain the	plaintiff of  the  earlier
suit from proceeding with his suit. This cannot be
justified on  general principles when the previous
suit has been instituted in a competent Court.
The reasons  which	 weighed  with	the  Court
below for  maintaining the order of injunction may
be given in its own words as follows:
"In the  plaint  filed  in  the  Asansol
     Court the	defendant has  based his  claim on
     the deed  of dissolution  dated 22, 1945, but
     has avoided  all references to the provisions
     regarding the agreement to place the disputes
     before the	 Indore Courts.	 It was	 an action
     taken   by	   the	 present    defendant	in
     anticipation of  the  present  suit  and  was
     taken in flagrant breach
467
of the  terms of the contract. In my opinion,
     the defendant's action constitutes misuse and
     abuse of the process of the Court."
The appellant  attached the deed of dissolution to
the plaint  he filed at Asansol. Of course, he did
not state  specifically in  the plaint	about  the
proviso with respect to the forum for the decision
of the dispute. Even if he had mentioned the term,
that would  have made no difference to the Asansol
Court entertaining the suit, as it is not disputed
in these  proceedings that  both  the  Indore  and
Asansol Courts	could try the suit in spite of the
agreement. The appellant's institution of the suit
at Asansol cannot be said to be in anticipation of
the suit  at Indore,  which followed  it by  a few
months. There is nothing on the record to indicate
that the  appellant  knew,  at	the  time  of  his
instituting the	 suit,	that  the  respondent  was
contemplating the institution of a suit at Indore.
The notices  which  the	 respondent  gave  to  the
appellant were	in December  1945.  The	 suit  was
filed at  Asansol in  August 1948,  more than  two
years  and   a	half   after   the   exchange	of
correspondence referred	 to in the plaint filed at
Asansol.
In fact,  it is the conduct of the respondent
in applying  for the injunction in September 1953,
knowing full  well of  the order  of the  Calcutta
High Court  confirming the  order refusing stay of
the Asansol  suit  and	directing  that	 Court	to
proceed	 with	the  decision	of  the	 issue	of
jurisdiction at	 an early  date, which can be said
to amount to an abuse of the process of the Court.
It was	really in  the respondent's interest if he
was  sure   of	his   ground  that  the	 issue	of
jurisdiction  be  decided  by  the  Asansol  Court
expeditiously, as  ordered by  the  Calcutta  High
Court in  May  1953.  If  the  Asansol	Court  had
clearly no jurisdiction to try the suit in view of
the terms of the deed of dissolution, the decision
of that issue
468
would have finished the Asansol suit for ever. He,
however, appears  to have  avoided a  decision	of
that  issue   from  that  Court	 and,  instead	of
submitting to  the  order  of  the  Calcutta  High
Court, put  in this application for injunction. It
is not	understandable why  the appellant  did not
clearly state  in his objection to the application
what the  High Court of Calcutta had ordered. That
might have  led the  consideration of the question
by the Indore Court in a different perspective.
It	 is   not  right   to  base  an	 order	of
injunction, under  s. 151 of the Code, restraining
the plaintiff  from proceeding	with his  suit	at
Asansol, on  the consideration	that the  terms of
the deed  of dissolution  between the parties make
it a  valid contract  and the  institution of  the
suit at	 Asansol is  in breach of it. The question
of jurisdiction	 of the	 Asansol  Court	 over  the
subject matter	of the	suit  before  it  will	be
decided by  that Court.	 The Indore  Court  cannot
decide that  question. Further,	 it is not for the
Indore Court  to see  that the	appellant observes
the terms  of the  contract and	 does not file the
suit in	 any other  Court. It  is only	in  proper
proceedings  when   the	 Court	considers  alleged
breach of contract and gives redress for it.
For the  purposes of  the present	appeal, we
assume that  the jurisdiction of the Asansol Court
is not	ousted by the provisions of the proviso in
the deed  of dissolution, even though that proviso
expresses the  choice of  the parties  for  having
their disputes decided in the Court at Indore. The
appellant therefore  could  choose  the	 forum	in
which to  file his  suit. He  chose the	 Court	at
Asansol, for his suit. The mere fact that Court is
situate at  a long  distance  from  the	 place	of
residence of  the respondent  is not sufficient to
establish that	the suit  has been  filed in  that
Court in  order to  put the  respondent to trouble
and harassment and to unnecessary expense.
469
It cannot	be denied that it is for the Court
to control  the proceedings  of the suit before it
and not	 for  a	 party,	 and  that  therefore,	an
injunction to  a party	with respect to his taking
part in	 the proceedings  of  the  suit	 would	be
putting	 that	party  in   a  very   inconvenient
position.
It has been said that the Asansol Court would
not act	 in a way which may put the appellant in a
difficult position  and	 will  show  a	spirit	of
cooperation with the Indore Court. Orders of Court
are not	 ordinarily based  on such  considerations
when there be the least chance for the other Court
not to	think in  that way. The narration of facts
will indicate  how each	 Court has  been acting on
its own view of the legal position and the conduct
of the parties.
There have been case in the past, though few,
in  which   the	 Court	took  no  notice  of  such
injunction orders  to the  party in  a suit before
them.  They   are:
Menon  v.  Parvathi	 Ammal
(1),
Harbhagat Kaur v. Kirpal Singh (2) and Shiv Charan
Lal v. Phool Chand (3). In the last case, the Agra
Court issued  an injunction  against the plaintiff
of a suit at Delhi restraining him from proceeding
with that  suit. The Delhi Court, holding that the
order of  the Agra  Court did not bind it, decided
to  proceed   with  the	  suit.	 This  action  was
supported by the High Court. Kapur J., observed at
page 248:
"On the  facts as  have been	proved	it
     does  appear  rather  extra-ordinary  that	 a
     previously instituted  suit should	 be sought
     to	 be   stayed  by   adopting  this   rather
     extraordinary procedure."
It is  admitted that  the Indore  Court could
not have  issued an  induction or direction to the
Asansol Court  not to  proceed with  the suit. The
effect of  issuing an  injunction to the plaintiff
of the
470
suit at	 Asansol, indirectly  achieves the  object
which an  injunction to the Court would have done.
A court	 ought not  to achieve	indirectly what it
cannot do  directly. The  plaintiff, who  has been
restrained, is	expected to  bring  the	 restraint
order to  the notice  of the Court. If that Court,
as expected  by the  Indore  Court,  respects  the
injunction order  against the  appellant and  does
not proceed  with the  suit, the  injunction order
issued to  the appellant  who is  the plaintiff in
that suit  is as  effective an order for arresting
the progress  of that  suit as an injunction order
to the Court would have been. If the Court insists
on proceeding  with the	 suit, the  plaintiff will
have either to disobey the restraint order or will
run the	 risk of his suit being dismissed for want
of prosecution.	 Either	 of  these  results  is	 a
consequence which an order of the Court should not
ordinarily lead to.
The suit  at Indore which had been instituted
later, could  be stayed	 in view  of
s.	 10
of the
Code. The  provisions of  that section	are clear,
definite  and	mandatory.  A  Court  in  which	 a
subsequent suit	 has been filed is prohibited from
proceeding with	 the trial of that suit in certain
specified circumstances.  When there  is a special
provision in
the  Code	 of  Civil  Procedure
for
dealing with  the contingencies	 of two such suits
being instituted,  recourse to the inherent powers
under s.  151 is  not justified. The provisions of
s. 10
do  not	become	inapplicable  on  a  Court
holding that  the previously  instituted suit is a
vexatious suit or has been instituted in violation
of the	terms of  the contract. It does not appear
correct to say, as has been said in
Ram Bahadur v.
Devidayal Ltd.
(1) that  the Legislature  did not
contemplate the	 provisions of
s. 10
to apply when
the previously	instituted  suit  be  held  to	be
instituted in  those circumstances. The provisions
of s.  35A indicate that the Legislature was aware
of false or vexatious claims or defences
471
being made, in suits, and accordingly provided for
compensatory  cost.  The  Legislature  could  have
therefore provided  for the non-application of the
provisions of
s. 10
in those circumstances, but it
did not.  Further, s.  22 of the Code provides for
the transfer  of a  suit to  another Court  when a
suit which  could be  instituted in any one of two
or more	 Courts	 is  instituted	 in  one  of  such
Courts. In view of the provisions of this section,
it was	open to	 the respondent	 to apply  for the
transfer of  the suit  at Asansol  to  the  Indore
Court and, if the suit had been transferred to the
Indore Court,  the two suits could have been tried
together.  It	is  clear,   therefore,	 that  the
Legislature had	 contemplated the  contingency	of
two suits  with respect	 to similar  reliefs being
instituted and of the institution of a suit in one
Court when  it could also be instituted in another
Court and  it be  preferable, for certain reasons,
that the suit be tried in that other Court.
In view  of the various considerations stated
above, we  are of  opinion that	 the  order  under
appeal cannot  be sustained  and cannot be said to
be an  order necessary in the interests of justice
or to  prevent the  abuse of  the process  of  the
Court. We  therefore allow  the appeal with costs,
and set	 aside the order restraining the appellant
from proceeding with the suit at Asansol.
SHAH,  J.-I   have	  perused   the	  judgment
delivered by  Mr. Justice  Dayal. I agree with the
conclusion that	 the appeal  must succeed but I am
unable to  hold that  civil courts  generally have
inherent jurisdiction  in cases not covered by rr.
1 and  2 of  O. 39,  Civil Procedure Code to issue
temporary injunctions  restraining parties  to the
proceedings before  them from  doing certain acts.
The powers  of courts,	other than  the	 Chartertd
High Courts,  in the  exercise of  their  ordinary
original Civil	jurisdiction  to  issue	 temporary
injunctions  are   defined  by	the  terms  of	s.
94(1)(c) and
472
O.  39,	  Civil	 Procedure   Code.   A	 temporary
injunction may	issue if  it is	 so prescribed	by
rules in  the Code. The provisions relating to the
issue of  temporary injunctions are to be found in
O. 39  rr. 1  and 2: a temporary injunction may be
issued only  in those  cases which  come  strictly
within those  rules, and normally the civil courts
have   no    power   to	  issue	  injunctions	by
transgressing the limits prescribed by the rule.
It is  true that  the High Courts constituted
under Charters	and exercising	ordinary  original
jurisdiction do	 exercise inherent jurisdiction to
issue an  injunction to restrain parties in a suit
before	them  from  proceedings	 with  a  suit	in
another court,	but that  is because the Chartered
High  Courts   claim  to   have	  inherited   this
jurisdiction from the Supreme Courts of which they
were successors.  This jurisdiction would be saved
by
s.  9
of  the Charter  Act (24  and 25 Vict. c.
104) of	 1861, and in
the Code of Civil Procedure
,
1908 it	 is expressly  provided by  s. 4.  But the
power of the civil courts other than the Chartered
High Courts  must be  found within s. 94 and O. 39
rr. 1 and 2 of the Civil Procedure Code.
The
Code  of Civil	 Procedure
is  undoubtedly
not exhaustive:	 it does  not lay  down rules  for
guidance in  respect of all situations nor does it
seek  to   provide  rules   for	 decision  of  all
conceivable  cases  which  may	arise.	The  civil
courts are  authorised to  pass such orders(as may
be necessary  for  the	ends  of  justice,  or	to
prevent abuse  of the  process of court, but where
an express  provision is made to meet a particular
situation the  Code must be observed, an departure
therefrom is not permissible. As observed in L. R.
62 I.  A. 80 (
Maqbul Ahmed v. Onkar Pratab
) "It is
impossible to  hold that  in  a	 matter	 which	is
governed by an Act, which in some limited respects
gives the  court a statutory discretion, there can
be implied in
473
court, outside	the limits  of the  Act a  general
discretion to  dispense with the provisions of the
Act." Inherent	jurisdiction of	 the court to make
order ex  debito justitiae is undoubtedly affirmed
by s.  151 of  the  Code,  but	that  jurisdiction
cannot	be   exercised	so   as	 to   nullify  the
provisions of  the  Code.  Where  the  Code  deals
Expressly with	a particular matter, the provision
should normally be regarded as exhaustive.
Power to issue an injunction is restricted by
s. 94  and O.  39, and it is not open to the civil
court which  is not  a	Chartered  High	 Court	to
exercise  that	 power	ignoring  the  restriction
imposed there  by, in  purported exercise  of  its
inherent jurisdiction.	The decision of this Court
in
Padam Sen v. The State of Uttar Pradesh
(1) does
not assist  the case  of the  appellant.
In
Padam
Sen
's  case  this  Court  was  called  upon  is	 a
original appeal	 to consider whether an order of a
Munsiff	 appointing  a	commissioner  for  seizing
certain account	 books of  the plaintiff in a suit
pending before the Munsiff was an order authorised
by law.	 It was	 the case for the prosecution that
the appellants offered a bribe to the commissioner
as consideration  for being allowed to tamper with
entries	 therein,   and	 thereby   the	appellants
committed an  offence punishable  under
s. 165A
of
the Indian  Penal Code.	 This Court  held that the
commissioner  appointed	 by  the  civil	 court	in
exercise of  powers under O. 26 C. P. Code did not
hold any  office  as  a	 public	 servant  and  the
appointment   by   the	 Munsiff   being   without
jurisdiction, the commissioner could not be deemed
to be  a  public  servant.  In	dealing	 with  the
argument of  counsel for  the appellants  that the
civil court  had  inherent  powers  to	appoint	 a
commissioner in exercise of authority under s. 151
Civil Procedure	 Code for  purposes which  do  not
fall
474
within the  provisions of  s. 75  and O.  26 Civil
Procedure Code, the Court observed:
"Section 75  of the  Code  empowers  the
     Court  to	issue  a  commission,  subject	to
     conditions	 and   limitations  which  may	be
     prescribed,  for  four  purposes,	viz.,  for
     examining any person, for making or adjusting
     accounts and  for making  a partition.  Order
     XXVI lays down rules relating to the issue of
     commissions   and	  allied   matters.    Mr.
     Chatterjee,   learned    counsel	 of    the
     appellants, has  submitted that the powers of
     a Court must be found within the four corners
     of the  Code  and	that  when  the	 Code  has
     expressly dealt  with the	subject matter	of
     commissions in  s. 75 the Court cannot invoke
     its inherent  powers under s. 151 and thereby
     add to  its powers.  On the other hand, it is
     submitted for the State, that the Code is not
     exhaustive and  the Court, in the exercise of
     its inherent  powers, can adopt any procedure
     not prohibited  by the  Code expressly  or by
     necessary implication  if the Court considers
     it necessary  for the  ends of  justice or to
     prevent abuse of the process of the Court.
x		     x			 x
x
	  x		     x			 x
x
The inherent  powers  of  the  Court  are	in
     addition to the powers specifically conferred
     on	 the   Court  by   the	Code.	They   are
     complementary to  those powers  and therefore
     it must  be held  that the	 Court is  free to
     exercise them  for the  purposes mentioned in
     s. 151 of the Code when the exercise of those
     powers is	not in	any way	 in conflict  with
     what has  been expressly provided in the Code
     or against the intentions of the Legislature.
     It is  also well recognized that the inherent
     power is  not to  be exercised  in	 a  manner
     which will be
475
contrary  or  different  from  the	 procedure
     expressly provided in the Code."
The Court
in that  case
held  that in exercise of
the powers  under
s.  151
of  the  Code	 of  Civil
Procedure,  1908   the	Court	cannot	 issue	 a
commission  for	  seizing  books   of  account	of
plaintiff-a purpose  for which a commission is not
authorized to be issued by s. 75.
The principle  of the  case is destructive of
the  submission	 of  the  appellants.  Section	75
empowers the  Court  to	 issue	a  commission  for
purposes specified  therein: even though it is not
so expressly  stated that  there is  no	 power	to
appoint	 a  commissioner  for  other  purposes,	 a
prohibition to	that effect is, in the view of the
Court in
Padam Sen
's  case, implicit in s. 76. By
parity	of   reasoning,	 if  the  power	 to  issue
injunctions may	 be exercised, if it is prescribed
by rules  in the  Orders in Schedule I, it must he
deemed to  be not  exercisable in any other manner
or for	purposes other than those set out in O. 39
rr. 1 and 2.
Appeal allowed.