9911796707
TMI Blog2004 (3) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... kept pending and continued solely for the purpose of continuing an interim order made in the said suit. It is clear from record that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application u/s 151 of CPC to bring to the notice of the court the facto and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not. While dismissing the application I.A.No. 20651/2001 the courts below proceeded not on the basis that the original notice of termination has not become infructuous, but on the basis that the said application lacks in bona fide and if the said application is allowed the interlocutory injunction hitherto enjoyed by the plaintiff will get vacated and consequently the plaintiff will be prejudiced. The question for ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the disposal of these appeals are as follows: The appellant herein had appointed the respondent as the Steamship Agent of the appellant for the purpose of handling tankers, bulk carriers, and tramp vessels, calling at the port of Tuticorin. It is the contention of the appellant that the said agreement provides for termination of the contract. On being dissatisfied with the conduct of the respondent, invoking the said clause of termination and for the reasons mentioned therein, by a notice dated 23.2.1995, the appellant terminated the said contract of agency. The respondent herein challenged the said termination by way of a suit in O.S.No. 4212/95 in the City Civil Court at Madras (the trial court). In the said suit the respondent inter alia prayed for the following reliefs: The plaintiff, therefore, prays for a judgment and decree against the defendants 1 to 3 for a declaration to declare that the order of the termination issued by the 1st defendants on 232.1995 through telex terminating the Plaintiffs agency, as per the agreement dated 3.6.1988, is illegal, void and unenforceable. 5. During the pendency of the said suit, the respondent also prayed for an interim injunction re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial court on the ground that the same lacks in bona fide and allowing the application would cause prejudice to the respondent with regard to the continuation of the agency. The trial court also held since the injunction granted in the first suit had became final, same cannot be either defeated or vacated by seeking the dismissal of the suit. 10. The said order of the trial court came to be once again challenged before the High Court in the above noted revision petition and the miscellaneous petitions. The High Court agreeing with the conclusions of the trial court also came to the conclusion that the dismissal of O.S. No. 4212/95 on the ground that the same had become infructuous would result in vacating the order of interim injunction earlier granted in the said suit. The High Court also agreed with the trial court that such dismissal on the ground of suit having become infructuous would prejudice the respondent, hence, dismissed the petition. 11. It is against the said order of the High Court confirming the order of the trial court, the appellants are before us in these appeals. 12. Shri C.A. Sundram, learned senior counsel appearing for the appellant contended that the courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first letter of termination became non existent and consequently the suit filed on that basis became infructuous because the cause of action, if any, which gave rise to the first suit disappeared. Hence, the courts below ought co have accepted the application of the appellant for the dismissal of the suit. The learned counsel also contended both the courts below have not given any finding as to the effect of the second termination notice vis-a-vis the existence of cause of action to continue the first suit and proceeded erroneously on the ground that dismissal of said suit would make the injunction ineffective, as if the interim order in a proceeding can survive after the disposal of the main matter or that the main matter can be kept pending to continue the interim order. 14. Shri P.R. Kovilan learned counsel appearing for the respondent supported the orders of the courts below and contended that the same are just and equitable. Learned counsel also submitted that a revision against the dismissal of an application under Section 151 was not maintainable before the High Court because the same was an appealable order. He also supported the orders of the two courts below that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arguments of the parties and perused the records, we notice that the first three arguments addressed by the appellant though seems to indicate some legal backing still will not be entertained by us because that was not the basis on which application I.A.20651/2001 was filed by the appellant before the trial court. The only ground on which the said application was filed is that, in view of the subsequent termination notice the first termination notice disappeared consequently the cause of action also disappeared. This application did not question the maintainability of the suit on the grounds which are urged now before us nor the various provisions of CPC now urged before us ever urged in the said application, and that does not also seem to be the argument of the appellant before the courts below as could be seen from the contents of the two impugned orders. We do not think we should permit the appellant to raise these grounds for which sufficient foundation has not been laid in the pleadings and arguments before the courts below. At the same time, we are unable to accept the argument of the learned counsel for the respondent who contended that the revision petition filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 151 CPC this court after considering various previous judgments on the point held: The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercise if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the court. 20. From the above, it is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are crapulously obeyed. 23. In the very same case, this Court quoted with approval a judgment of the Supreme Court of United States in Patterson v. State of Alabama 294 US 600 wherein it was laid down thus : We have frequently held that in the exercise of cur appellate jurisdiction we have power not only to correct error in the judgment under review but to make such deposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. 24. Almost similar is the view taken by this Court in the case of J.M. Biswas v. N.K. Bhattacharjee and Ors. wherein this Court held : The dispute raised in the case has lost its relevance due to passage of time and subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kavita Trehan (Mrs.) and Anr. v. Balsara Hygiene Products Ltd. AIR1995SC441 wherein it is held : Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be Undone to the extent possible. 28. Therefore, in our opinion, the courts below erred in continuing an infructuous suit just to keep the interlocutory order alive which in a manner of speaking amounts to putting the cart before the dead horse. 29. The next ground given by the courts below that the dismissal of the suit would prejudice the respondent, again on the ground of interlocutory order getting dissolved, cannot also be sustained. If the suit in fact has become infructuous consequences of dismissal of such suit cannot cause any prejudice to the plaintiff. As a matter of fact, the consequence should be to the contrary, that is, such continuance of infructuous suit would cause prejudice to the defendant. 30. We have already noticed that the courts below have also held that the application of the appellant lacks in bona fide. We fail to understand how this is so. If a party has a legal right to ask for dismissal of an infructuous suit, and pursuant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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