9911796707
TMI Blog2010 (8) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... instituted by Aderbad Co.op.Hsg. Society Ltd. claiming a decree of declaration that Defendants Nos. 9 10 have procured membership of the Plaintiff-society by fraud and misrepresentation. A further decree of declaration was claimed by the Plaintiff-society that Defendants Nos. 9 10 are not the members of the Plaintiff-society and/or are liable to be expelled as such. It appears that the Plaintiff-society in its General Body Meeting held on 6-2-2005 passed a Resolution resolving to revoke/cancel the nominal membership of the Defendants Nos. 9 10. The Plaintiff/society, thereafter, approached the Deputy Registrar, Co.operative Societies for his approval to the Resolution of expulsion of Defendants Nos. 9 10 from the membership of the society as required by the provisions of Section 35 of the Maharashtra Co.operative Societies Act. In the Civil Suit filed by the society, it appears that the Defendants Nos. 9 10 took out Notice of Motion No. 828 of 2005 seeking an interim order restraining the Plaintiff/society from prosecuting and proceeding with the application made by the society before the Deputy Registrar, Co.operative Societies, under Section 35 of the Co.operative Soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty to a suit before it restraining it from prosecuting an application under Section 35 of the Maharashtra Cooperative Societies Act, 1960 before the Deputy Registrar of Cooperative Societies ? 2. Export Credit Guarantee Corporation of India Ltd. had filed two civil suits being Civil Suit No. 2178 of 2001 and Civil Suit No. 2177 of 2001 on the original side of this Court seeking a decree of specific performance of the lease agreement. In those suits, notices of motion were taken out by the Plaintiff praying for temporary injunction restraining the Defendants from filing proceedings under the Maharashtra Rent Control Act, 1999 in the Small Causes Court. By an order dated 26-9-2006 which was a common order passed in both the Notices of Motion, Notices of Motion were rejected by the learned single Judge of this Court. Therefore, against the common order two Appeals were preferred by the Plaintiff being Appeal No. 295 of 2007 and Appeal No. 296 of 2007. When those Appeals came for admission before the Division Bench of this Court on 19th April, 2007 following order was passed: Heard the learned Advocate for the appellants. Admit. Since the issue involved in the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the Presidency Small Causes Court Act, 1882, Constitution of India, the Letters Patent and the Civil Procedure Code submitted that the Small Causes Court is sub-ordinate to this Court on its original side within the meaning of Section 41(b) of the Specific Relief Act. The learned Counsel relied on following judgments, (i) William Jacks Co. (India) Ltd. v. Nilima Dinesh Prasad and Ors. AIR 1992 Bom 126; (ii) Narayan Vithal Samant v. Jankibai Sitaram Samant and Ors. AIR 1915 Bombay 146; (iii) Naresh Shridhar Mirajkar v. His Lordship the Honourable Mr. Justice Tarkunde 67 BLR, 214, (iv) Pirbhai Khimji v. The Bombay, Baroda and Central India Railway Co. 1872 (8) Bombay High Court Judgments 59; 7. The learned Counsel appearing for the Respondents, on the other hand, submitted that the Small Causes Court is not sub-ordinate to the High Court exercising original civil jurisdiction on its original side, because the Small Causes Court under Section 41 of the Small Causes Court Act has exclusive jurisdiction and therefore it is a court of co-ordinate jurisdiction and therefore is not sub-ordinate to the High Court on its original side within the meaning of Section 41( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f suits for land or other Immovable property such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits, except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Causes Court at Bombay, or the Bombay City Civil Court. 9. It is, thus, clear that by virtue of Clause 12 of the Letters Patent this Court had power to try civil suits in its ordinary original civil jurisdiction. Clause 13 of the Letters Patent confers extra ordinary civil jurisdiction on this Court. Clause 13 of the Letters Patent reads as under: 13. Extraordinary Original Civil Jurisdiction And We do further ordain that the said High Court of Judicature at Bombay shall have power to remove and to try and determine, as a Court of extraordinary original jurisdiction, any suit being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is the power of reserving questions of law or equity for the opinion of the High Court, and the obligation to do so in cases above the value of Rs. 500, on the application of either of the parties, to which I have already adverted. The decision of the High court on such reserved question is binding on the Small Causes Court, and Mr. Justice Phear, in the above cited cases of John Thomson, it is to be noticed, speaks of such a power of reference to the opinion of the High Court as a modified form of appeal. For the above reasons I am of opinion that the Bombay Court of Small Causes, though not subject in all respects, or perhaps generally to the superintendence of the High Court, nor, strictly speaking subject to its appellate jurisdiction at all is so far subject to its superintendence as to give the latter court, under Section 13 of the Letters Patent, power to remove, and try and determine, any suit pending in the former court, when the High Court, for purposes of justice, shall think proper to do so. It is thus clear that In 1871 this Court had held that Small Causes Court, Bombay constituted under the Presidency Small Causes Court Act is sub-ordinate to this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion the respective powers of the Judges in relation to administration of justice remain the same as before the commencement of the Constitution. These powers are , of course, subject to modification, by any provisions of the Constitution or by any law made by the appropriate Legislature duly empowered by the Constitution, which now includes the Letters Patent. Any Judge of the Bombay High Court may, therefore, perform all the judicial functions of that court in exercise of its extra ordinary original as also appellate jurisdiction. The judicial decision of a single Judge , whether given in exercise of original or appellate jurisdiction would be the decision of the High Court, as much as, any similar decision given by two or more Judges sitting together. The Division Bench of this Court in its judgment in the case of Naresh Mirajkar, referred to above, has observed thus: The distinction between the Original Side and the Appellate Side was brought into existence by cls.11, 12, and 13 of the Letters Patent. But if we turn to cl.36 of the Letters Patent, we find the same idea expressed though in different language. We have already quoted the clause and what is of prime importance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a suit, and are regulated by the Code of Civil Procedure, 1908. Permanent injunctions can only be granted by the decree made at the hearing and upon merits of the suit and thereby defendant in the suit is perpetually enjoined from assertion of a right or from commission of an act, which would be contrary to the rights of the plaintiffs. Section 38 sets out situations in which the court can grant a perpetual injunction to the plaintiff to prevent the breach of an obligation existing in its favour, whether expressly or by implication. Section 38 is thus an enabling section which confers power on the court to grant perpetual injunction in situations and circumstances therein enumerated. Section 41 caters to the opposite situation. It provides that an injunction cannot be granted in the situation and circumstances therein set out. The Respondent relies on Section 41(b) in support of its contention that the court had no jurisdiction to grant temporary injunction because perpetual injunction could not have been granted by the Court in terms in which temporary or interim injunction was sought. Section 41(b) reads as under: 41. An injunction cannot be granted:( a) .... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instituting or prosecuting any proceeding in a court not sub-ordinate to that from which injunction is sought. Section 41(b) denies to the court the jurisdiction to grant an injunction restraining any person from instituting or prosecuting any proceeding in a court which is not sub-ordinate to the court from which the injunction is sought. In other words, the court can still grant an injunction restraining a person from instituting or prosecuting any proceeding in a court which is sub-ordinate to the court from which the injunction is sought. As a necessary corollary, it would follow that the court is precluded from granting an injunction restraining any person from instituting or prosecuting any proceeding in a court which is not sub-ordinate to it. This change in language deliberately adopted by the Legislature after taking note of judicial vacillation has to be given full effect. 14. Thus, it is clear that the only question we have to determine is, can it be said that the Small Causes Court is sub-ordinate to the original side of the High Court? The Presidency Small Causes Court Act was enacted in the year 1882. At that time the Bombay High Court existed having been constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Court of a grade inferior to that of a District Court and every Court of Small Causes is sub-ordinate to the High Court and District Court. Perusal of the above quoted provision shows that it declares that every court of Small Causes Court is sub-ordinate to the High Court and District Court. Thus, according to Section 3 of CPC the Small Causes Court is sub-ordinate to High Court as also District Court. In the judgment of the Full Bench of this Court in the case of Romila Jaidev Shroff v. Jaidev Rajnikant Shroff AIR 2000 Bombay 356, especially in paragraph 23 , the court has observed thus: 23. At the same time when of the several High Courts of this Country some of them happen to have Original Civil Jurisdiction by very compulsion of logic as and when it exercises its jurisdiction, the High Court has to be a District Court for that limited purpose and it as a result of it's inclusion in that concept if the High Court on its original side loses its jurisdiction, it does. It needs to be clarified that the loss of the jurisdiction will be confined only to that part of the Original Civil Jurisdiction as, like in the instant case, is relating to the matters to be dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as a body and that it is the Court which has jurisdiction to grant. It was however observed that inasmuch as it would not be convenient for the due administration of justice that the entire Court should have to sit for a valid determination of every suit, appeal and application, power is given to the Court to make rules for the exercise of the Court's jurisdiction by one or more Judges within the limits and subject to the conditions prescribed by the rule. The Court was of the opinion that the power to frame rules was for the purpose of convenient administration of justice and to avoid the inconvenience of all Judges of a particular Court being required to conduct every suit/proceedings/applications. In fact, the judgment of Macleod, J. went further to state that an order in personam to restrain a party in a suit from proceeding with the suit in a sub-ordinate Court would be with jurisdiction. In his opinion, a Single Judge sitting on the Original Side of the High Court was competent to restrain a party from proceeding with the suit in a sub-ordinate Court. The majority decision of the Full Bench in Narayan Vithal Samant's matter therefore leaves the question whether such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court exercising Original Jurisdiction from restraining a party from prosecuting and/or instituting a suit in the Court of Small Causes at Bombay. In view of discussions set out above, the Court of Small Causes at Bombay is sub-ordinate to the High Court and to a Single Judge exercising Original Jurisdiction therefore, the natural conclusion is that such Single Judge exercise Original Jurisdiction is empowered to pass an order of injunction restraining a party from prosecuting a suit in the Court of Small Causes at Bombay. 19. It was contended that because of the provision of Section 41 of the Small Causes Court Act and the Rent Act so far as the Original Side of the Court is concerned the Small Causes Court is a Court of co-ordinate jurisdiction. The submission is without any substance. Section 41 of the Small Causes Court Act and the Rent Act confer exclusive jurisdiction on the Small Causes Court to try suits between a landlord and tenant etc. Therefore, the jurisdiction of the High Court to try such suits in its original civil jurisdiction is ousted. Hence, it can not be said that in so far as suit between a landlord and tenant etc. are concerned, the two courts have ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
