P L D 1954 Lahore 414 (PLP)

KAIKAUS, J.‑Nadir, an occupancy tenant of land, and his widow Mst. Mehro having died, the collaterals of Nadir, who had taken possession of the land but in whose favour the revenue officer had refused a mutation, filed a suit for a declaration that they were entitled to inherit the land under section 4 of the Punjab Tenancy Act. The trial Court decreed the suit and the decree was upheld on appeal by the learned District Judge. In second appeal Kayani, J. held that the common ancestor had not been proved to have occupied the land and dismissed the suit. The collaterals have filed an appeal under the Letters Patent against that judgment. In the meantime the landlords have filed suits against the collaterals claiming sums of money equivalent to rent under section 14 of the Punjab Tenancy Act. In two suits they have already obtained decrees and two other suits are pending: The collaterals have now filed an application under section 151, C. P. C., asking for the issue of an injunction to the landlords to ‑the effect that they should neither execute the decrees they have obtained, nor prosecute the suits during the pen dency of the Letters Patent appeal. That application will be disposed of by this order. The questions which confront us at the very outset are :‑ (1) Can an injunction be issued at all to restrain judicial proceedings ? (2) Can it be issued to restrain proceedings pending in a Court which is not subordinate to the Court issuing injunc tion, and (3) Can the execution of a decree which is legal and bind ing on the parties be stayed at the instance of a party ? There is no doubt that there are certain matters which call for attention in connection with the issue of injunctions restraining judicial proceedings. The act restrained is perfectly legal and arises out of the fundamental right of a party to have recourse to law Courts of the country. Ordinarily acts which are restrained by injunction are those which appear to the Court issuing the injunction to be prima facie illegal or with respect to the legality of which there is a reasonable doubt. So far as permanent injunctions are concerned, it will appear from section 54 of the Specific Relief Act that they are issued only to prevent the breach of an obligation existing in favour of the plaintiff. If an act be perfectly legal, it cannot be said that there exists an obligation in favour of the plaintiff that it shall not be done. The issue of an injunction restraining the judicial proceedings involves a determination, though only a provisional one, by the Court issuing the injunction, that the party against whom injunction is issued is not, or at least may not be, entitled to the relief he is claiming in the proceeding which is restrained. It may be argued that the Court before which the proceeding is pending, and which admittedly has jurisdic tion to hear it is the only proper Court to decide whether the party is in fact entitled to relief and the issue of ail injunction is an interference with the exercise of a jurisdiction. Yet after full consideration I have reached the conclusion that not only on authority and by practice of Courts but even on principle and without the loss of consistency the issue of a temporary injunction in restraint of judicial proceedings is justified. The prosecution of a judicial proceeding is different from the exercise of ordinary legal rights by a party. It is a recourse to the judicial machinery of a country with the object of securing relief for the enforcement of civil rights and all that a party is entitled to is a proper and full adjudication of his rights and an appropriate relief. By the injunction the party is not being absolutely restrained from having recourse to a Court. Only the result of another proceeding is being allowed to affect the proceeding that is stayed. There are cases where although the grant of particular relief is within the jurisdiction of one Court, the determination of facts, which are to form the basis of relief, is more appropriate for another Court or the last word on the subject is within the jurisdiction of the other Court. In such cases a proper decision of the question as to what relief should be granted can only be possible if 4 determination by that Court is awaited. Really it is a case o3 co‑ordination of exercise of power by different parts of the machinery for dispensation of justice. For Instance, it would be quite proper to stay proceedings relating to succession cer tificates, probate and letters of administration till the decision; of any suit already pending wherein questions relating to in heritance, will etc. are the subject of contest. Proceedings before a Rent Controller on behalf of persons who claim as, heirs of a landlord may similarly be stayed pending the decision of suits between rival claimants to the inheritance. There may be cases where a proceeding is instituted in a Court of one kind of jurisdiction on the basis of a decree granted by a Court possessing a different jurisdiction. The present case is one of this kind, for here too the basis of the suit in the revenue Court is the decree of the High Court, dis missing the suit of the collaterals. If the decree which is the very basis of the new proceeding be itself under appeal, will it not be proper that the new pro ceedings be stayed till the previous decree becomes final. The objection, as I have already stated, to one Court issuing an injunction to restrain proceedings in another Court is that this involves a power in the Court issuing the injunc tion of determining whether the party is entitled to relief in the other Court and this matter ought to be decided by the Court which has jurisdiction to grant relief. But when by the law the judgment of one Court is to affect the order passed or to be passed by another Court, it may be said that the first Court does possess a power, directly or indirectly to determine the grant of relief by the second Court and, there fore, the objection loses its force. In England, Courts of Chancery used to issue injunctions restraining parties before, them from prosecuting proceedings pending before the Com mon Law Courts in respect of the same subject‑matter. The necessity for such injunctions arose when an equitable plea or an acquitable relief was disallowed by the Common Law Courts which the Chancery Courts could allow. Now the distinction between Court of Equity and Common Law has been abolished but injunctions to restrain proceedings in County Courts and certain other courts are still issued (Halsbury Vol. 18 pp. 86‑87). With respect to the Court of Appeal and the High Court, however, such injunctions have been pro hibited by the Judicature Act of 1873: Though stay of execution proceedings is particularly mentioned in the third question which I formulated, I may to illustrate my point also refer to such cases, for execution proceedings are also judicial proceedings. If a decree he for some reason liable to be influenced by a pending suit, will it not be proper to stay its execution till the suit is decided ? To take a glaring example if a suit be filed to impeach a decree on the ground of fraud, will not the Court hearing the suit have jurisdiction to order stay of execution ? I may refer to section 15 of the Limitation Act which provides that if a suit or an application for injunction has been stayed by injunction, the period for which the stay remains in force is to be excluded from the period provided for such suits and applications. In this section the Legislature has recognized that a suit or application for execution may legally be stayed. Now, I do not say that assumptions of Legislature are binding on us. The Legislature has jurisdiction only to enact and the interpretation of the law is within the province of Courts. The Legislature may make wrong assumptions. However the fact that the Legislature makes an assumption might well be used as an argument. Order 39 rule 1 also shows that the proceedings in execution may be stayed. This provision is sufficient by itself to show that there is no insuperable objection to staying judicial proceedings Section 56 (b) of the Specific Relief Act also recognizes the power to stay judicial proceedings by injunction though it restricts the power so far as permanent injunction are concerned to Courts subordinate to the Court issuing the injunction. I have not been able to find any case in undivided India where there may have :been a full discussion on the point before me, but the power to issue such an injunction has been recognized in some cases, vide Shyam Lal Gomatwaio v. Nand Lal and others (A I R 1944 All. 220.) and LV. Moran and others v. The River Steam Navigation Company (14 B L R 352 (358).) So far as the stay of proceedings in foreign Courts is concerned, it is well established that a jurisdiction to stay such proceedings exists, vide Vulcan Iron Works v. Bishumbhur Prosad (I L R 36 Cal. 233.) and Tikam Chand Santokchand v. Santokchand Singh (A I R 1920 Cal. 798.) With respect to the power of High Court to issue such injunctions, there are a number of cases in which this power has been recognized, Rash Behary Dey v. Bhowani Churn Bose (I L R 34 Cal. 97.), Mungle Chand v. Gopal Ram (I L R 34 Cal. 101,), Murugesa Mudah v. Angamuthu Mudali (A I R 1938 Mad. 190.) and In the matter of Nand Lal Mukharji (A I R 1932 Cal, 353.) I hold that an injunction can be issued to restrain judicial proceedings. It should be obvious, however, that it will be issued only where the proceedings in which it is issued can, directly or indirectly, affect the proceedings that are stayed. I will now deal with the question whether section 56 (b) of the Specific Relief Act prevents the Court from restraining (by temporary injunction) a proceeding pending in a Court not subordinate to the Court issuing injunction. In order to find out whether the power of Court to stay a judicial proceeding is affected by the fact that the Court in which proceeding is pending is not subordinate to the Court issuing ff the injunction, we have to determine what is the source of this jurisdiction. Order 39 rules 1 and 2 do not apply. It is only in the exercise of its inherent jurisdiction that the Court issues such injunctions. When we speak of inherent, jurisdiction, we refer to a jurisdiction that is necessarily involved in a jurisdiction that admittedly exists. Civil Courts have jurisdiction to grant relief in civil matters and if the exercise of a power be necessary for granting full relief, that power should be deemed to exist in the absence of statute or settled practice. For granting full relief it is essential that a power to maintain the status quo should exists, for a party to a suit should not suffer merely because a suit cannot be decided the moment it is filed. If a suit is filed for restraining the defendant from demolishing a wall, the Court must have power to prevent the defendant from demolishing the wall till the matter is decided. The case I am referring to is now covered by Order 39, rule 2, C. P. C., but had this rule not existed the power to grant such an injunction would still be there. I am conscious of the fact that in England, before the Judicature Acts, Courts of Common Law did not issue injunctions which fact may be used as an argument that such powers are not inherent. But luckily that distinction between Courts of Common Law and Equity which is more historical than fundamental, does not exist here, for our Courts of law are also Courts of Equity. If the jurisdiction to issue such a temporary injunction be referable to inherent power, it cannot be taken away by section 56 (b) of the Specific Relief Act By the express words of section 53, Specific Relief Act, temporary injunctions are to be governed by the Civil. Procedure Code. If there was any intention to limit the power to grant temporary injunctions on the principle contained in section; 56, there ought to have been a provision to that effect. If a jurisdiction to restrain judicial proceedings by temporary injunction did exist before the enactment of section 56 (b), it is obvious that it has not been taken away. In fact I need not labour the point, for it has been held by a Division Bench of this Court in Kanshi Ram and another v. Sharaf Din and another (A I R 1923 Lah. 144 (2).), that section 56 (b) does not govern temporary injunctions, Here I may refer to some judgments laying down that injunctions cannot be issued for restraining proceedings before revenue officers. It is argued on behalf of the respondent that if proceedings before revenue officers cannot be stayed ex hypothesi proceedings before revenue Courts cannot be stayed. The first case on the point and which is followed in later cases is Malik Sohara Khan and others v. Ahmad Khan and others (57 P R 1899.). In that case a suit had been filed for a declaration that certain property belonged to the plaintiffs and injunction was applied for in order to restrain partition proceedings pending before a revenue officer. It was held with reference to section 56 (b) of the Specific Relief Ac, that such an injunction could not legally be issued. Three previous cases were relied upon in support of the proposition. It is to he noted that in the judgment reference is to a revenue Court and not to a revenue officer and the partition proceed ings are regarded as pending before a revenue Court. Injunction was refused on the ground that the revenue Court was not subordinate to the High Court. Ignoring for the present that distinction between a revenue officer and a revenue Court, a simple answer to this case is the judgment to which I have already referred i. e. Kanshi Ram and another v. Sharaf Din and another (supra), wherein it has been held that section 56(b) of the Specific Relief Act does not apply to temporary injunctions, Out of these cases quoted in Malik Sohara Khan and others v. Ahmad Khan and others (supra) one, that is Dhuronidhur Sen and another v. The Agra Bank Limited (I L R 4 Cal. 380 (F. B).) was set aside on review in Dhuronidhur Sen and another v. The Agra Bank, Limited (I L R 5 Cal. 86 (F. B).). In the last mentioned case the following passage from Drury on Injunction was quoted with approval "Upon this principle it seems immaterial where or what the Court is in which the proceedings are sought to be restrained, provided the party sought to be restrained is amenable to the jurisdiction and is capable of being acted on by the process of contempt of Court, and the extension of the jurisdiction of equity to stay proceedings in other Courts, besides Courts of Common Law and in foreign Courts as well as in Courts within the jurisdiction of the Court of Chancery, becomes, when considered in reference to the principle stated, as rational and intelligible as it is firmly established in practice." The second case relied upon i. e. Mahip Singh and another v. Chotu (I L R 5 All. 429.) contains no discussion and as regards the third case i. e. Appu and others v. Raman and others (I L R 14 Mad. 425.), the view taken therein was doubted in a later case of the same Court, that is Subba Naidu and others v. Haji Badshah Sahib and 3 others (I L R 26 Mad. 168.). Khushala and others vs Dit Mal and others (133 P L R 1903.) simply follows Malik Sohara Khan and others v. Ahmad Khan and others (supra) In Ram Saran Das and others v Maulu and others (A I R 1926 Lah. 284.), the application was for an injunction to the revenue officer to stay partition proceedings. Section 151 was relied upon by the appellant. Zafar Ali J. said :‑ "As regards section 151 of the Civil Procedure Code there is nothing to show that this Court possesses an inherent power for granting injunctions against Government officers not subordinate to this Court." There is no further discussion. In Muhammad Masud and others v. Shiv Charan Lal and others (A I R 1931 Lah. 176.), Shadi Lal C. J. held, following Malik Sohara Khan and others v. Ahmad Khan and others (supra) that an injunction could not be issued to a revenue officer. The learned Judge held however, that an injunction could be issued to the party restraining it from prosecuting the partition proceedings, It is note worthy that in Malik Sohara Khan and others v. Ahmad Khan and others (supra) which case the learned Judge fol lowed, injunction had been asked for not against the revenue officer but against the party and had been refused. Reliance has also been placed on Matlob Hasan and others v. Mst. Kallvati and others (A I R 1931 All. 57 (2).) and Lala Beni Madho and another v. Mst. Kaniz Zohra Begum (A I R 1937 Ouch 359.). In the former case injunction to restrain partition proceedings was refused on the ground that section 112 of the U. P. Land Revenue Act empowered the High Court to stay proceedings if the Assistant Collector himself tried the question of title and an appeal was filed in the High Court, but not when he directed the party to institute a suit in a Civil Court. It was granted by the learned judges that the position was anamolous but it was held that there was no help to it as there was no jurisdic tion to grant such an injunction. The judgment is based on the absence of an express provision granting such a power and I have already held that the power is inherent. In Lala Beni Madho and another v. Mst Kaniz Zohra Begum (supra) an application for extinction of mortgage had been referred by the Collector, under section 4 of the U. P. Encumbered Estates Act, to a Special judge who extinguished the mortgage and passed a money decree. The mortgagor appealed to the Collector for delivery of possession. There was an appeal against the decree of the Special judge and pending the appeal asked for injunction to stay proceedings for delivery of possession. It was held that there was no jurisdiction to stay delivery as Collector's Court was not a subordinate Court though it was recognized that the decision of the appeal would have a direct effect upon delivery of possession. I am of opinion with all respect that it was a fit case for injunction. There is no legal bar to a Court issuing an injunction to a party restraining it from prosecuting a partition proceeding There is, at the same time, no bar to the issue of injunctions to Government officers even in respect of permanent injunc tions except in cases covered by section 56 (d) when the public duties of a department of the Government are inter fered with. As regards the applicability of section 56 (b) to temporary injunctions I have already referred to Kanshi Ram and another v. Sharaf Din and another (supra) which makes it clear that temporary injunctions are not to be govern ed by that section. That does not mean, however, that the principles underlying section 56 cannot be a guide for exercis ing our discretion in granting or refusing injunctions. How ever, they can only help as guides and cannot inhibit jurisdiction. There seems to be some confusion as to whether sec tion 56 (b) applies to injunctions issued to parties or to Courts. I have already referred to Muhammad Masud and others v. Shiv Charan Lal and others (supra), where it appears to have been accepted that the provision applies only to in junctions issued to Courts. In A Milton & Co. v. Ojha Automobile Engineering Co. (A I R 1931 Cal. 279.) Lort Williams J. made an express statement to the effect that section 56 (b) relates only to injunctions issued to the Court itself and not to those issued to the parties. With all respect it appears to me that permanent injunctions with respect to judicial proce edings are directed, like all other injunctions, to the parties. It is to be remembered that permanent injunctions with which the Specific Relief Act deals in sections 54 and 56 are to be incorporated in decrees. Can it be contemplated that there' should be decree for injunction against a Court ? A decree, can be passed only against a defendant. Neither the use of the word injunction, nor previous practice in England or, undivided India, lends support to the statement than injunctions can be issued to Courts. The nature of an injunction is thus explained in Halsbury Vol. 18 P. 3 :‑ "An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing. In the former case it is called a restrictive injunction, and in the latter a mandatory injunction." Such injunctions were issued by Chancery Courts and as will appear from the following extract from Strahan's Equity (P. 443, Sixth Edition) were always addressed to a party :‑ "The remedy of injunction consists of an order directing a defendant (i) not to do an act which he has threatened, or not to continue doing an act which he has already com menced, to do; or (ii) directing him to undo an act which he has already done. The first kind of injunction is usually called an ordinary or negative, arid the second kind a mandatory or positive, injunction." Similarly it is stated in Snell's Equity (pp. 574, 575, 23rd Edition) that such injunctions were always issued to parties and not to the Court. Equity, it is well known, acts in personem. Section 54, Specific Relief Act, 'provides for cases where injunctions may be issued and the reference to the defendant in that section would show that the injunction is to be issued to the defendant. I would respectfully agree with Wort J. (vide Mahanth Ramkeshwar Das v. Baldeo Singh (A I R 1938 Pat. 606.) that in junctions are never issued to Courts. Lort Williams J. has in the above‑mentioned case relied upon Cohen v. Rath field ((1919) 1 K B 410.) for the proposition he has laid down, but all that was held in that case was that injunctions to parties restraining them from proceeding with suits outside England could be issued. In England injunctions restraining parties from prose cuting a proceeding before a superior Court or Court of appeal cannot be issued at all,

‑(vide Halsbury Vol. 18, page 86), and section 56 (b) seems to be a similar provision. I regard the provisions in section 56 as governing injunctions issued to parties only. I now come to the question whether execution of decree can be stayed. So far as the power of the High Courts to stay execution is concerned, there is a good deal of authority in favour of the power. So far as the other Courts are con cerned, there ase some decided cases holding that a party can be restrained from executing a decree. The Madras High Court has however, held in T. S. Sankara Iyer v. Muhammad Ganni Rowther and others (A I R 1936 Mad. 276.) and in other cases relied on in that judgment that if there be a valid decree between the parties, there is no jurisdiction to stay it. The case of a decree obtained by fraud is, however, considered to be an ex ception to this rule. Although the case of a decree obtained by fraud is distinguishable from cases where the decree the execution of which is sought to be restrained is only liable to be altered as a result of the proceeding in which injunction is asked, the position is not altogether dissimilar and in some cases the principle underlying will be fully applicable. Take the case of a decree which has been passed merely on the strength of another decree which is itself under appeal. The decree of which execution is sought is valid but if the other decree be set aside on appeal, it will have to be vacated. The Court which is hearing the appeal should have jurisdic tion to prevent a party before it from executing a decree to which the party may in fact not be entitled. The decree may turn out to be invalid. Suppose the heirs of an occupancy tenant obtain a decree in a revenue Court on the basis of a decree of Civil Court declaring their right to succeed, and the decree of the Civil Court is still under appeal, should not the execution be stayed ? I come now to the merits of this application. While I concede the jurisdiction of the Civil Court to restrain a party from prosecuting proceeding in another Court, I do think that the proper procedure in such cases is to apply to the Court in which tile proceeding is pending for a stay. The situation is similar to that which calls for a stay under section 10 C. P. C. The determination of the previous proceeding is to affect the proceeding which is sought to be stayed. At the same time there is force in the contention of the learned counsel for the petitioner that the Revenue Court will probably not stay the proceeding itself and will require a stay order from this Court. In the cases in which decrees have been passed I direct that the respondent should not execute the decree till the disposal of the Letters Patent Appeal. Rahman J. had only stayed the execution of decrees at the Kacha hearing and I confirm that order. With respect to the suits I do not feel the necessity of making any order at present and leave the petitioner the option to apply again if urgent need arises. K. M. A. Petition accepted.