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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

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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.

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    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

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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

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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

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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

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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

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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

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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

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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

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    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

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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

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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:

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         "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

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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.

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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

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    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.