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TMI Blog1986 (8) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the provisions of Section 141, C.P.C. read with Order 8, Rule 9 C.P.C. also did not permit the plaintiff to file a rejoinder in case of an application for temporary injunction filed under Order 39, Rule 1 and 2 C.P.C. 3. Aggrieved against the order of the trial Court, these revisions have been filed by the plaintiffs. 4. It was contended by learned counsel for the plaintiffs that under the provisions of Section 141, C.P.C. the procedure provided in the Code of Civil Procedure in regard to the suit has to be followed as far as it can be made applicable in all proceedings in any Court of Civil jurisdiction. It is submitted that the proceedings under Order 39, Rule 1 and 2 being miscellaneous proceedings, the procedure provided in the C.P.C. in regard to suits should be followed to miscellaneous proceedings. It is further argued that in a suit for permanent injunction the scope of the suit as well as the application for temporary injunction remains almost identical. The Court is entitled to consider the pleadings contained in the plaint for deciding the questions of prima facie case, balance of convenience and irreparable loss for disposing of the application for temporar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time for presenting the same. 7. Order 8, Rule 9 permits the subsequent pleadings by the leave of the Court. This provision no doubt relates to the proceedings in a suit, but Section 141 deals with miscellaneous proceedings. The wordings of Section 141 clearly lay down that the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. The proceedings for temporary injunction are miscellaneous proceedings which are separately registered and decided by a separate order. Any order passed under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order is appealable under Clause (r) of Order 43, Rule 1, C.P.C. Any order passed on an application under Order 39, Rule 1 and 2 is temporary in the sense that it remains in force till the final disposal of the suit, but it cannot be lost sight of that such order has a very important effect and bearing as the main suit takes long number of years before final decision. Such order passed on an application for temporary injunction has even more important bearing and effect in a suit for permanent injunction. Sometimes the Court has to pass an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous proceedings would be to see as far as it can be made applicable. 10. If we consider the problem from another angle then also the result would be same. The Court may ask the defendant to file the written statement first before passing any order on the application for temporary injunction. In such a case the plaintiff becomes entitled to file subsequent pleading under Order 8, Rule 9 itself and that being so I see no reason as to how the plaintiff can be denied his right to file a rejoinder in the case of proceedings for temporary injunction by resorting to the provisions of Order 8, Rule 9 read with Section 141, C.P.C. 11. I shall now discuss the cases cited at the bar. In Ganpat Kinushet Sonar v. Vithal Bhikan Patil , AIR 1942 Bom 57, it was observed as under: But in the view we take it is not really very material whether an application to file an award is to be regarded as a suit within the meaning of this rule or not. The rule is essentially a rule of procedure, and it would seem that it would be applicable under Section 141 of the Code, whether an application is to be regarded as a suit or not. 12. In Ram Chandra Aggarwal v. State of Uttar Pradesh , AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Procedure available with respect to a proceeding arising out of a reference under Section 146(1), Cr. P.C. 13. A Full Bench of the Madhya Pradesh High Court in Nathu Prasad v. Singhai Kapurchand held that an application under Order 9, Rule 9, C.P.C. is a proceeding in a Court of Civil Jurisdiction within Section 141. The object and purpose of Section 141 is that for economy of words it was unnecessary to repeat the whole of the proceeding for procedure for an application or any other proceeding original or ancillary. An application under Order 9, Rule 9 is not an interlocutory application. By its nature, an application under Order 9, Rule 9, is an independent application and is registered as an independent Misc. Judicial case. Hence an application lies to restore application which was dismissed for default which application had been made for setting aside the dismissal of a suit for default. 14. In the above Full Bench case reliance was placed on: AIR 1962 SC 903,: AIR 1966 SC 1888, AIR 1966 AP 263 and AIR 1969 Guj 308 , was held not good law in view of AIR 1966 SC 1888 . 15. In Narain Singh v. Ram Gopal Madan Lal, AIR 1981 Delhi 88 , it was held as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of Order XXXII, Rule 7 of the Code, and as the Code provided specifically for suits, Section 141 could not be invoked; and (2) as we have held, an application by a judgment-debtor to set aside a sale is a proceeding in execution and therefore Section 141, which applies only to original proceedings, does not apply to such proceedings. 18. The above case is clearly distinguishable inasmuch as their Lordships were considering the question of applicability of Section 141 to proceedings in execution. In respect of the execution proceedings it was held that the Code provided specifically for the suits and as such Section 141 cannot be invoked. It was further held that an application by a judgment-debtor to set aside a sale is a proceeding in execution and therefore Section 141 which applies only to original proceedings does not apply to such proceedings. In this case their Lordships have used the term original proceeding in contradistinction to execution proceeding. In the case in hand before me there is no dispute that the suit for permanent injunction is pending and application for temporary injunction is a miscellaneous proceeding in that suit. In this view of the matter, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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