Judgment:
ORDER
A.R. Tiwari, J.
1. The appellate order dated 16th January, 1992 (Annexure 'G') rendered in Misc. Appeal No. 6/91 by District Judge, Indore, in reversal of the order dated 2nd December, 1991, passed by Civil Judge Class II, Hatod in COS No. 11A/91 (Annexure 'F'), is under challenge in this petition presented under Article 227 of the Constitution of India.
2. Briefly stated, the facts of the case are that the petitioner and respondent No. 1 are real brothers. Some dispute over the properties arose between them. Filled in with the surge of an urge, they opted for settlement of dispute by arbitration and, in that pursuit, executed agreement dated 13-10-1989 (Annexure 'A'). In due course of time, the award dated 20-12-1989 (Annexure-B) was passed. The award fixed 31-5-1990 as the date for its implementation. The land, having tube well, fell to the share of the petitioners.
3. In accordance with the term of the award, the petitioners as contended withheld the supply of water from this tube-well effective from 1-6-1990. The respondent No. 1 irked by this action of stoppage, instituted aforesaid suit on 1-11-1991 claiming reliefs of declaration of right to obtain water from 1st to 7th and then 15th to 23rd of every month (i.e. 15 days in a month) and perpetual injunction against interference in exercise of such rights vide plaint (Annexure-C). Temporary injunction in such suit through application under Order 39, Rule 1, 2 of the Code of Civil Procedure (Annexure-'D') was also claimed. The petitioners resisted the claim oppugned the prayer on two principal points --
a) New state of affairs cannot be created through interlocutary relief as on the date of suit the respondent No. 1 admittedly was not in enjoyment of this benefit.
b) The controversy was resolved by the award in pursuance of which exclusive rights in the land and, in consequence in the tube-well in question, became vested in the petitioners effective from 1-6-1990.
4. As regards, the position with regard to point No. (a) above, the petitioners (defendant) emphatically asserted that the respondent No. 1, with due deference to the award, stopped drawing water from the tube-well from 1-6-1990 and clearly pleaded that the respondent No. 1 (plaintiff) did not utilise this since 1-6-1990, thus, for about one and a half years till presentation of the plaint on 1-11-1991 whereas the respondent No. 1 averred in para 6 of the plaint that this was stopped by the petitioners on 16-10-1991. Be that as it may, the position that indisputably emerged was that, on the date of suit, the respondent No. 1 was not in enjoyment of this facility. Operation of Order (Annexure G) was stayed by this Court.
5. As regards point (b) above, the respondent No. 1, in his return, contended as under --
'The said Award was one sided and totally deprived the respondent No. 1 of the water for agriculture and there was no question of the respondent No. 1 accepting the same.' (Para 3)
It is, thus, noticed that it was not the existence, but the validity of the award which was disputed. It was further pleaded in the return that steps had been taken to have this award filed in the Court and to have it declared as a nullity through the application date 14-8-1991 (Annexure R/1-A) under Section 14 of the Arbitration Act.
The Trial Court, on detailed analysis of entire facts and features, concluded that there was no proof of prima facie case and other ingredients, and on that basis refused temporary injunction and rejected the application (Annexure D) by order (Annexure F). The Appellate Court, however, differed with the opinion of the trial Court and granted the temporary injunction to be operative till conclusion of the suit No. 11-A/91 by order dated 16-1-1992 (Annexure-G). It is, this order (Annexure-G) which has been assailed in this petition. These were the isagogic facts and features.
6. We have heard Shri Ravi Waghmare, learned counsel for the petitioners and Shri A.M. Mathur, learned senior counsel with Shri Brijesh Pandya for the respondent and have perused the documents annexed with the petition and the return.
7. The matter in the trial Court is at the interlocutary stage. The lis is pending and awaits answer to the questions in controversy between the parties. In view of this position, we deem it improper and imprudent to express any opinion on the merits of the principal question under litigation lest it should prejudice parties or fetter the freedom of trial Court to determine the suit.
8. We shall therefore, confine ourselves to the limited question as to whether the Appellate Court was justified in setting aside the order of the trial Court and granting temporary injunction Ex-voto.?
9. Now is the stage to notice the relevant provisions of law. Section 37 of the Specific Relief Act, 1963 provides as under --
'37. (1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.' -X- -X- -X-
10. Order 30, Rule 1 and 2 of the Civil Procedure Code (For short the Code) is reproduced below --
'Cases in which temporary injunction may be granted -- Where in any suit it is proved by affidavit or otherwise --
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens or intends, to remove or dispose of his property with a view to 'defrauding' his creditors.
(c) that the defendant threatens to dispossess the plaintiff in relation to any property in dispute in suit.
the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, dameging, alienating, sale, removal or disposition of the property (or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit) as the Court thinks fit, until the disposal of the suit or until further orders.
2- Injunction to restrain repetition or continuance of breach --
(1) in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of alike kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.' -X- -X- -X-
11. As noted above. Rule 2 of Order 39 of the Code pertains mainly to a contract and its apprehended breach. The discretionary order under Rule 1 of Order 39 of the Code is grantable on proof, by affidavit or otherwise, of the matters enumerated thereunder. In both these provisions, the nature of power, so exercisable, is indicated by the use of the word 'may'. The respondent No. 1 has not cared to tear up the tenebrosity as to under which of the aforesaid two Rules, he had sought the relief. However, indisputably, grant or refusal of the injunctions of this nature is a discretionary relief.
12. In John Wilke's case, (1770) 4 Burr 2528, Lord Mensfield stated in classic terms that discretion means sound discretion guided by law and governed by Rule, not by humour. It has to be reasonable and judicial, not arbitrary, vegue or fanciful.
13. It is contended that the award, even when it is not made the rule of Court, can be set up in defence to oppose the claim showing earlier settlement of the dispute and consequent untenability of the suit. Reference may be made to a decision reported in AIR 1961 SC 1107, Kashi Nathsa Yamosa Kabadi v. Nar Singsa Bhaskarsa Kabadi. We quote the relevant pericope --
'In such a case by setting up a defence in the partition suit that there has been a division of the property and the parties have entered into possession of the properties allotted, the defendant is not seeking to obtain a decision upon the existence, effect or validity of an award. He is merely seeking to set up a plea that the property was divided by consent of parties. Such a plea is not precluded by Section 32.'
14. The discretionary order of the trial Court, which has to try the lis and determine it finally and which thought it proper to refuse restraint as claimed, was perused by us. We noticed that the approach was not illegal and conclusion was not without jurisdiction. A Single Bench decision of this Court 1979 WN II 181, Pratap Singh v. Gangaram, laid down as under :--
'I am of the opinion that no case is made out for interference with the order made by the trial Court in exercise of it's discretion while deciding the application for temporary injunction. The order cannot be said to be illegal, without jurisdiction or having been made with any material irregularity. -X- -X- -X-
15. We are aware that scope of interference under Article 227 of the Constitution is little and limited. It is restricted 'to seeking that the Courts or tribunals function within the limits of their authority'. Luculently, this extraordinary jurisidiction is available only in circumstances to prevent manifest miscarriage of justice. So viewed, we find in the instant case that if we say 'mono-syllabic no' to the petitioners and allow the appellate order to stand and permit the law to stay petrified, then this is likely to occasion failure of justice in the following manner which yields extra-ordinary circumstances --
a) New state of things, not prevalent on the date of suit will come into being and disturb the status quo which admittedly had existed on the date of suit; and
b) The award, yet to be scrutinised by the Court in accordance with the provisions of the Arbitration Act, would suffer premature violation.
In our view, the Appellate Court unjustifiably entered the forbidden territory when it opted to examine merits at the infancy of the lis and to reverse the order on such meticulous scrutiny. In our view, such a prayer was liable to be spurned staunchly.
16. The power of superintendence is exercisable so as to eliminate erosion of faith in the system. Burger, C.J. of the American Supreme Court elegantly once observed --
'A sense of confidence in the Courts is essential to maintain the fabric of ordered liberty for a free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control to ensure it.' -X- -X- -X-
17. We may, however, record that the parties chose to go under protective umbrella of plethora of points in support of their respective contentions. We, however, as observed above, declined to examine their worth bearing in mind the stage of the original suit. However, on our scrutiny, we find that the appellate Court over-stepped its jurisdictional precinct in vacating the order of the Trial Court on wholly irrelevant considerations despite absence of the tinge of illegality, infirmity or arbitrariness in exercise of its discretion. We are acquiescent that the trial Court had exercised sound discretion guided by law and governed by rule and that there was no justification in demolishing the order and granting prohibitory order in these facts and circumstances.
18. Consequently, this petition is allowed, and the Appellate Order dated 16th January, 1992 (Annexure 'G') is set side. In the result, the order dated 2nd December, 1991 (Annexure 'F') stands revivified. Considering the fluctuation of fortune at the hands of two Courts below, we direct the parties to bear their own costs of this petition as incurred. Counsel fee on each side shall be Rs. 1,000/- if certified. The security amount, after verification shall be refunded to the petitioners.
19. However, considering the nature of controversy, we direct the trial Court to endeavour to decide the civil suit by 30th April, 1994. The parties are thus, directed to co-operate in expeditious disposal of the same so that the questions in controversy between the parties are determined before commencement of the next agricultural year.
20. We shall, however, part with this petition with the observation that interlocutary orders, Appellate or Revisional, of the Courts below now normally enjoy insignia of finality as a result of the amended scheme of the law. As such, the Appellate and Revisional Court have, now far more serious legal obligations on them to scrutinise matters little more carefully and cautiously so that chances of injustices, even if emphemeral, to the parties are nil or negligible. This caution should, while handling such matters, play on the mind because all errors are not liable to be corrected in extraordinary supervisory jurisdiction conferred under Article 227 of the Constitution of India. It is apt to remember that between justice and law, there has to be harmony, not antinomy.