Rakesh Kumar Vs. Ms. Ashima Kumar - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 6. learned counsel for the petitioner has vehemently argued that anti suit injunction is a principle well recognized by the hon'ble supreme court and, therefore, in the facts of the case, the defendant should be re-strained from prosecuting her complaint which is lodged before the foreign court. rajat taneja 2003 (2) rcr (civil) 197 as well as on the judgments of the supreme court in smt. (1) in exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects: (b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; still further, even if the injunction is declined, it cannot be said that the ends of justice will be defeated and in-justice will be perpetuated. it was held that there is nothing which supports the proposition that the high court has no jurisdiction to grant any injunction or a restraint order in exercise of its inherent power in a situation like the one in the said case. 15. it may be noticed that cotton corporation of india [1983]3scr962 ,as well as oil and natural gas commission's cases (supra) are the judgments rendered by a two judge bench of the hon'ble supreme court.orderhemant gupta, j.1. the challenge in the present petition is to an order passed by the learned trial court on 17-1-2007 issuing notice of an ad interim injunction application filed by the petitioner to the defendant on 27-1-2007.2. the petitioner has filed a suit for mandatory injunction/permanent injunction/ prohibitory injunction restraining the defendant from continuing with the complaint for divorce pending in the superior court of new jersey chancery division-family part passaic county (hereinafter referred to aa 'the foreign court') and from filing any other suit case against the plaintiff in the courts at new jersey (usa) or any other court abroad, in contravention of the provisions of the hindu marriage act, 1955 (hereinafter referred to as 'the act').3. it is the case of the petitioner that the marriage between the parties was solemnized on 27.1.2000 at dehradun in the state of uttaranchal. the parties resided as husband and wife at panchkula. a daughter was born out of the wedlock on 13.9.2002. the defendant initially went abroad without permission and without seeking consent of the plaintiff on 15.6.2005. leaving her three year old child with her relatives in delhi. on return from england, the defendant again joined the company of the plaintiff but refused to apologise for her behaviour and remained non committal about her future plan of leaving the country without the con-sent of the plaintiff.4. it is alleged that the defendant left the matrimonial home on 9.9.2005 in his absence and by taking away the child, all her belongings, jewelleries and other valuables. now, the respondent has filed a complaint for divorce on 12.12.2006 before the foreign court, on the basis of vague allegations and in respect of the period when the defendant stayed at matrimonial home at panchkula. it is alleged that none of the al-legations fall within the jurisdiction of the foreign court, in as much as the plaintiff never resided or even visited the new jersey, at any point of time. the plaintiff has been directed to answer the complaint within 35 days after the service of the summons. it is also pointed out that the petitioner has submitted reptytaking the objections with regard to the territorial jurisdiction of the foreign court, yet the present suit is necessitated on account of open assertions by the father of the defendant that the foreign court will pass an ex parle order with regard to the claim made by the defendant. it is alleged that in terms of section 19 of the act, the court at panchkula had the jurisdiction to entertain the present suit.5. learned counsel for the petitioner insisted that the application for ad interim injunction should have been decided by the learned trial court ex parte as the foreign court is likely to decide the claim of the defendant on or before 2.2.2007. but, the trial court has called upon the defendant in such ad interim injunction application. the learned counsel for the plaintiff argued that such process has caused manifest injustice to the petitioner. learned counsel for the petitioner has further called upon this court to pass an order on merits after considering the judgments referred to by the petitioner.6. learned counsel for the petitioner has vehemently argued that anti suit injunction is a principle well recognized by the hon'ble supreme court and, therefore, in the facts of the case, the defendant should be re-strained from prosecuting her complaint which is lodged before the foreign court. it is alleged that the foreign court has no jurisdiction to deal with the divorce petition with respect to a marriage solemnized under the act and when the petitioner has never visited the new jersey state. learned counsel for the petitioner has placed reliance on modi entertainment network v. w.s.g. cricket pte. ltd. : [2003]1scr480 and oil and natural gas commission v. western co. of north america : [1987]1scr1024 . reference was also made to ad interim order passed by the learned single judge of delhi high court in harmeeta singh v. rajat taneja 2003 (2) rcr (civil) 197 as well as on the judgments of the supreme court in smt. satya v. shri teja singh : 1975crilj52 y. narasimha rao v. y. venkata lakshmi : [1991]2scr821 and vikas aggarwal v. anubha : [2002]2scr1084 .7. before dealing with the judgments referred to by the learned counsel for the petitioner, it may be noticed that the petitioner has not filed proceedings under the act. the present suit is a suit for injunction restraining the defendant from pursuing or continuing with the complaint for divorce pending in the foreign court. the defendant is shown as resident of deharadun, but now residing in the state of new jersey. usa. the jurisdiction of such a suit is not to be regulated by the provisions of the act but by the code of civil procedure. in terms of section 20 of the code, every suit is required to be instituted in a court within the local limits of whose jurisdiction, the defendant actually and voluntarily resides or carries on business or personally works for gain. the suit also be filed within the territorial jurisdiction of the court, where the cause of action wholly or in part arises. as per the averments made by the plaintiff. panchayat court has the jurisdiction to entertain the suit in view of section 19 of the act, alone. thus, in my view, in terms of section 19 of the act, the plaintiff cannot seek to file the present suit for injunction before the courts at panchkula.8. as per the averments made in the plaint, the petitioner has filed his objections before the foreign court, a copy of which has been attached as annexure-p.4 with the present petition. the petitioner has raised objections regarding jurisdiction of the foreign court to entertain the complaint for divorce before the said court. it cannot be presumed that such objections shall not be considered by the foreign court in accordance with law.9. modi entertainment network and oil and natural gas commissioner's case 2003 sc 1177 (supra) pertained to the dispute arising out of a contract. in modi entertainment network's case (supra), the parties have agreed to be governed by the english law and submitted to the jurisdiction of the english court but the plaintiff sought an injunction for restraining the defendant from prosecuting the proceedings initiated by the defendant in england. the plaintiffs appeal was dismissed by the hon'ble supreme court. the court has relied upon the rules formulated in the conflict of law' by dicey and morris (13th edition) on the basis of the judgments of the house of lords and the privy council and held that clause 5. rule 31 deals with a case not covered by a jurisdiction agreement whereas clause 4 of rule 32 deals with a case involving jurisdictional agreement. the present case is not of an agreement. the jurisdiction issue has to be examined with reference to the relevant statute. in the case, the supreme court concluded to the following effect:from the above discussion the following principles emerge:(1) in exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects:(a) the defendant against whom injunction is sought, is amenable to the personal jurisdiction of the court;(b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and(c) the principle of comity-respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained must be borne in mind.(2) in a case where more forums than one are available, the court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non conveniens.10. the said judgment provides little assistance to the petitioner as the defendant is not amendable to the jurisdiction of the court at panchkula. still further, even if the injunction is declined, it cannot be said that the ends of justice will be defeated and in-justice will be perpetuated. the effect of the decree for divorce even if it is granted needs to be examined as binding on the plaintiff in terms of section 13 of the code of civil procedure. the foreign court is yet to pass an order on the objections filed. the principles of comity i.e. respect for the court in which commencement of continuation of action proceedings is sought. has to be borne in mind. therefore, it is premature for the petitioner to allege that he will suffer any grave injustice.11. in oil and natural gas commission's case air 1987 sc 674 (supra), the agreement between the parties stipulated jurisdiction of the courts in india. initially, the respondent (western company of north america) filed the award in the bombay high court but later lodged a complaint in united state district court, seeking confirmation of the award and the supplementary award. the appellant raised objections under sections 30 and 33 of the arbitration act, 1940 for setting aside of the award. ongc sought an interim order restraining the respondent from proceeding further with the action instituted in the u.s. court. in the aforesaid circumstances. the hon'ble supreme court found that the facts of the case were suitable for granting a restraint order as prayed by ongc. the hon'ble supreme court ob served that the supreme court sparingly exercises a jurisdiction to restrain the appellant from proceeding further in an action instituted in the foreign court, but it would be unjust and unfair not to restrain the respondent therein from proceeding further with the action in the american court in the facts and circumstances of the case. hesitation in granting restraint order would be oppressive. the court also considered an argument that the high court does not have the jurisdiction to grant such a restraint order even if the proceedings in the foreign court are considered to be oppressive in view of the provisions contained in section 41(b) of the specific relief act, 1963. the court also considered the judgment in cotton corporation of india v. united industrial bank : [1983]3scr962 . the hon'ble supreme court held that section 41(b) of the specific relief act, 1963 would be attracted only in a situation where an injunction is sought to restrain a party from instituting or prosecuting any proceeding in a court subordinate to that from which the injunction is sought. it was held that there is nothing which supports the proposition that the high court has no jurisdiction to grant any injunction or a restraint order in exercise of its inherent power in a situation like the one in the said case.12. the said judgment is again not helpful to the petitioner. the hon'ble supreme court has intervened to grant an injunction inter alia for the reason that the respondent has earlier invoked the jurisdiction of the bombay high court for making award as rule of the court. the said action was in terms of the agreement. but still, the respondent initiated proceedings in the u.s. court. therefore, the injunction was granted in the facts of that case.13. in cotton corporation's case 1983 sc 1272 (supra), the hon'ble supreme court has considered the corresponding provisions contained in section 56(b) of the specific relief act, 1887. under the old act, by a judicial interpretation, a consensus was reached that as injunction acts in personam while the court by its injunction cannot stay proceedings in a court of superior jurisdiction. it could certainly by an injunction re-strain a party before it from further prosecuting the proceeding in other courts may be superior or inferior in the hierarchy of courts. but the provisions have been materially altered while enacting section 41(b) of the specific relief act, 1963. it was held to the following effect:the legislature manifestly expressed its mind by enacting section 41(b) in such clear and unambiguous language that an injunction cannot be granted to restrain any person, the language takes care of injunction acting in personam, from 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 subordinate 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 subordinate 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 of co-ordinate or superior jurisdiction. this change in language deliberately adopted by the legislature after taking note of judicial vacillation has to be given full effect. 14. still further, it considered that the expression court in section 41(b) of the specific relief act. 1963 is used in its widest amplitude comprehending every forum where relief can be obtained in accordance with law. the court also considered that there is near unanimous view that the courts had no jurisdiction to grant interim injunction restraining a person from instituting any proceeding in a court not subordinate to that from which injunction is sought. in view of the above, the foreign court cannot be treated as a court subordinate to the panchkula court. therefore, in terms of section 41(a) and (b) of the specific relief act, 1963, injunction cannot be granted.15. it may be noticed that cotton corporation of india : [1983]3scr962 , as well as oil and natural gas commission's cases (supra) are the judgments rendered by a two judge bench of the hon'ble supreme court. in cotton corporation of india's case (supra), the anti-suit injunction is sought from an indian court only. in any case, the foreign court cannot be said to be court subordinate to the learned trial judge. the court granted anti-suit injunction in oil and natural gas commission's case : [1987]1scr1024 (supra) in the facts of the said case. the judgments in smt. satya and y. narasimha rao's cases : 1975crilj52 (supra), pertain to a foreign judgment in terms of section 13 of the code of civil procedure. in the present case, the proceedings before the foreign court are still pending, therefore, the said judgments provide little assistance to the petitioner. the case of vikas aggarwal : [2002]2scr1084 (supra), deals with an order wherein the challenge was to an order striking off the defence for not appearing before the court in pursuance of the order calling upon the petitioner to appear in person. though an argument was raised on the basis of section 41(a) and (b) of the specific relief act, 1963 but the court has not given any opinion on the said argument.16. in harmeeta singh's case (supra), the court granted injunction for a limited period from prosecuting the proceedings in usa after taking into consideration the undisputed fact that neither of the parties is presently residing in connecticut usa and also taking into consideration that the wife has not received spouse visa and, therefore, she may not be in a position to enter usa and that she has not submitted to the jurisdiction of the court in america. however, in the present case, the petitioner has submitted his objections and thus, submitted to the jurisdiction of the foreign court.17. in view of the above discussion, i do not find that any case for granting an injunction is made out. hence, the present petition is dismissed.

Judgment:
ORDER

Hemant Gupta, J.

1. The challenge in the present petition is to an order passed by the learned trial Court on 17-1-2007 issuing notice of an ad interim injunction application filed by the petitioner to the defendant on 27-1-2007.

2. The petitioner has filed a suit for mandatory injunction/permanent injunction/ prohibitory injunction restraining the defendant from continuing with the complaint for divorce pending in the Superior Court of New Jersey Chancery Division-Family Part Passaic County (hereinafter referred to aa 'the Foreign Court') and from filing any other suit case against the plaintiff in the Courts at New Jersey (USA) or any other Court abroad, in contravention of the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').

3. It is the case of the petitioner that the marriage between the parties was solemnized on 27.1.2000 at Dehradun in the State of Uttaranchal. The parties resided as husband and wife at Panchkula. A daughter was born out of the wedlock on 13.9.2002. The defendant initially went abroad without permission and without seeking consent of the plaintiff on 15.6.2005. leaving her three year old child with her relatives in Delhi. On return from England, the defendant again joined the Company of the plaintiff but refused to apologise for her behaviour and remained non committal about her future plan of leaving the country without the con-sent of the plaintiff.

4. It is alleged that the defendant left the matrimonial home on 9.9.2005 in his absence and by taking away the child, all her belongings, jewelleries and other valuables. Now, the respondent has filed a complaint for divorce on 12.12.2006 before the Foreign Court, on the basis of vague allegations and in respect of the period when the defendant stayed at matrimonial home at Panchkula. It is alleged that none of the al-legations fall within the jurisdiction of the Foreign Court, in as much as the plaintiff never resided or even visited the New Jersey, at any point of time. The plaintiff has been directed to answer the complaint within 35 days after the service of the summons. It is also pointed out that the petitioner has submitted reptytaking the objections with regard to the territorial jurisdiction of the Foreign Court, yet the present suit is necessitated on account of open assertions by the father of the defendant that the Foreign Court will pass an ex parle order with regard to the claim made by the defendant. It is alleged that in terms of Section 19 of the Act, the Court at Panchkula had the jurisdiction to entertain the present suit.

5. Learned Counsel for the petitioner insisted that the application for ad interim injunction should have been decided by the learned trial Court ex parte as the Foreign Court is likely to decide the claim of the defendant on or before 2.2.2007. But, the trial Court has called upon the defendant in such ad interim injunction application. The learned Counsel for the plaintiff argued that such process has caused manifest injustice to the petitioner. Learned Counsel for the petitioner has further called upon this Court to pass an order on merits after considering the judgments referred to by the petitioner.

6. Learned Counsel for the petitioner has vehemently argued that anti suit injunction is a principle well recognized by the Hon'ble Supreme Court and, therefore, in the facts of the case, the defendant should be re-strained from prosecuting her complaint which is lodged before the Foreign Court. It is alleged that the Foreign Court has no jurisdiction to deal with the divorce petition with respect to a marriage solemnized under the Act and when the petitioner has never visited the New Jersey State. Learned Counsel for the petitioner has placed reliance on Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd. : [2003]1SCR480 and Oil and Natural Gas Commission v. Western Co. of North America : [1987]1SCR1024 . Reference was also made to ad interim order passed by the learned single Judge of Delhi High Court in Harmeeta Singh v. Rajat Taneja 2003 (2) RCR (Civil) 197 as well as on the judgments of the Supreme Court in Smt. Satya v. Shri Teja Singh : 1975CriLJ52 Y. Narasimha Rao v. Y. Venkata Lakshmi : [1991]2SCR821 and Vikas Aggarwal v. Anubha : [2002]2SCR1084 .

7. Before dealing with the judgments referred to by the learned Counsel for the petitioner, it may be noticed that the petitioner has not filed proceedings under the Act. The present suit is a suit for injunction restraining the defendant from pursuing or continuing with the complaint for divorce pending in the Foreign Court. The defendant is shown as resident of Deharadun, but now residing in the State of New Jersey. USA. The jurisdiction of such a suit is not to be regulated by the provisions of the Act but by the Code of Civil Procedure. In terms of Section 20 of the Code, every suit is required to be instituted in a Court within the local limits of whose jurisdiction, the defendant actually and voluntarily resides or carries on business or personally works for gain. The suit also be filed within the territorial jurisdiction of the Court, where the cause of action wholly or in part arises. As per the averments made by the plaintiff. Panchayat Court has the jurisdiction to entertain the suit in view of Section 19 of the Act, alone. Thus, in my view, in terms of Section 19 of the Act, the plaintiff cannot seek to file the present suit for injunction before the Courts at Panchkula.

8. As per the averments made in the plaint, the petitioner has filed his objections before the Foreign Court, a copy of which has been attached as Annexure-P.4 with the present petition. The petitioner has raised objections regarding jurisdiction of the Foreign Court to entertain the complaint for divorce before the said Court. It cannot be presumed that such objections shall not be considered by the Foreign Court in accordance with law.

9. Modi Entertainment Network and Oil and Natural Gas Commissioner's case 2003 SC 1177 (supra) pertained to the dispute arising out of a contract. In Modi Entertainment Network's case (supra), the parties have agreed to be governed by the English Law and submitted to the jurisdiction of the English Court but the plaintiff sought an injunction for restraining the defendant from prosecuting the proceedings initiated by the defendant in England. The plaintiffs appeal was dismissed by the Hon'ble Supreme Court. The Court has relied upon the Rules formulated in The Conflict of Law' by Dicey and Morris (13th Edition) on the basis of the judgments of the House of Lords and the Privy Council and held that Clause 5. Rule 31 deals with a case not covered by a jurisdiction agreement whereas Clause 4 of Rule 32 deals with a case involving jurisdictional agreement. The present case is not of an agreement. The jurisdiction issue has to be examined with reference to the relevant statute. In the case, the supreme Court concluded to the following effect:

From the above discussion the following principles emerge:

(1) In exercising discretion to grant an anti-suit injunction the Court must be satisfied of the following aspects:

(a) the defendant against whom injunction is sought, is amenable to the personal jurisdiction of the Court;

(b) If the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and

(c) the principle of comity-respect for the Court in which the commencement or continuance of action/proceeding is sought to be restrained must be borne in mind.

(2) In a case where more forums than one are available, the court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non conveniens.

10. The said judgment provides little assistance to the petitioner as the defendant is not amendable to the jurisdiction of the Court at Panchkula. Still further, even if the injunction is declined, it cannot be said that the ends of justice will be defeated and in-justice will be perpetuated. The effect of the decree for divorce even if it is granted needs to be examined as binding on the plaintiff in terms of Section 13 of the Code of Civil Procedure. The Foreign Court is yet to pass an order on the objections filed. The principles of comity i.e. respect for the Court in which commencement of continuation of action proceedings is sought. has to be borne in mind. Therefore, it is premature for the petitioner to allege that he will suffer any grave injustice.

11. In Oil and Natural Gas Commission's case AIR 1987 SC 674 (supra), the agreement between the parties stipulated jurisdiction of the Courts in India. Initially, the respondent (Western Company of North America) filed the Award in the Bombay High Court but later lodged a complaint in United State District Court, seeking confirmation of the Award and the supplementary Award. The appellant raised objections under Sections 30 and 33 of the Arbitration Act, 1940 for setting aside of the award. ONGC sought an interim order restraining the respondent from proceeding further with the action instituted in the U.S. Court. In the aforesaid circumstances. the Hon'ble Supreme Court found that the facts of the case were suitable for granting a restraint order as prayed by ONGC. The Hon'ble Supreme Court ob served that the Supreme Court sparingly exercises a jurisdiction to restrain the appellant from proceeding further in an action instituted in the Foreign Court, but it would be unjust and unfair not to restrain the respondent therein from proceeding further with the action in the American Court in the facts and circumstances of the case. Hesitation in granting restraint order would be oppressive. The Court also considered an argument that the High Court does not have the jurisdiction to grant such a restraint order even if the proceedings in the Foreign Court are considered to be oppressive in view of the provisions contained in Section 41(b) of the Specific Relief Act, 1963. The Court also considered the judgment in Cotton Corporation of India v. United Industrial Bank : [1983]3SCR962 . The Hon'ble Supreme Court held that Section 41(b) of the Specific Relief Act, 1963 would be attracted only in a situation where an injunction is sought to restrain a party from instituting or prosecuting any proceeding in a Court subordinate to that from which the injunction is sought. It was held that there is nothing which supports the proposition that the High Court has no jurisdiction to grant any injunction or a restraint order in exercise of its inherent power in a situation like the one in the said case.

12. The said judgment is again not helpful to the petitioner. The Hon'ble Supreme Court has intervened to grant an injunction inter alia for the reason that the respondent has earlier invoked the jurisdiction of the Bombay High Court for making Award as Rule of the Court. The said action was in terms of the agreement. But still, the respondent initiated proceedings in the U.S. Court. Therefore, the injunction was granted in the facts of that case.

13. In Cotton Corporation's case 1983 SC 1272 (supra), the Hon'ble Supreme Court has considered the corresponding provisions contained in Section 56(b) of the Specific Relief Act, 1887. Under the old Act, by a judicial interpretation, a consensus was reached that as injunction acts in personam while the Court by its injunction cannot stay proceedings in a Court of superior jurisdiction. it could certainly by an injunction re-strain a party before it from further prosecuting the proceeding in other Courts may be superior or inferior in the hierarchy of courts. But the provisions have been materially altered while enacting Section 41(b) of the Specific Relief Act, 1963. It was held to the following effect:

The Legislature manifestly expressed its mind by enacting Section 41(b) in such clear and unambiguous language that an injunction cannot be granted to restrain any person, the language takes care of injunction acting in personam, from 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 subordinate 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 subordinate 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 of co-ordinate or superior jurisdiction. This change in language deliberately adopted by the Legislature after taking note of judicial vacillation has to be given full effect.

14. Still further, it considered that the expression Court in Section 41(b) of the Specific Relief Act. 1963 is used in its widest amplitude comprehending every forum where relief can be obtained in accordance with law. The Court also considered that there is near unanimous view that the Courts had no jurisdiction to grant interim injunction restraining a person from instituting any proceeding in a Court not subordinate to that from which injunction is sought. In view of the above, the Foreign Court cannot be treated as a Court subordinate to the Panchkula Court. Therefore, in terms of Section 41(a) and (b) of the Specific Relief Act, 1963, injunction cannot be granted.

15. It may be noticed that Cotton Corporation of India : [1983]3SCR962 , as well as Oil and Natural Gas Commission's cases (supra) are the judgments rendered by a two Judge Bench of the Hon'ble Supreme Court. In Cotton Corporation of India's case (supra), the anti-suit injunction is sought from an Indian Court only. In any case, the Foreign Court cannot be said to be Court subordinate to the learned trial Judge. The Court granted anti-suit injunction in Oil and Natural Gas Commission's case : [1987]1SCR1024 (supra) in the facts of the said case. The judgments in Smt. Satya and Y. Narasimha Rao's cases : 1975CriLJ52 (supra), pertain to a foreign judgment in terms of Section 13 of the Code of Civil Procedure. In the present case, the proceedings before the Foreign Court are still pending, therefore, the said judgments provide little assistance to the petitioner. The case of Vikas Aggarwal : [2002]2SCR1084 (supra), deals with an order wherein the challenge was to an order striking off the defence for not appearing before the Court in pursuance of the order calling upon the petitioner to appear in person. Though an argument was raised on the basis of Section 41(a) and (b) of the Specific Relief Act, 1963 but the Court has not given any opinion on the said argument.

16. In Harmeeta Singh's case (supra), the Court granted injunction for a limited period from prosecuting the proceedings in USA after taking into consideration the undisputed fact that neither of the parties is presently residing in Connecticut USA and also taking into consideration that the wife has not received spouse visa and, therefore, she may not be in a position to enter USA and that she has not submitted to the jurisdiction of the Court in America. However, in the present case, the petitioner has submitted his objections and thus, submitted to the jurisdiction of the Foreign Court.

17. In view of the above discussion, I do not find that any case for granting an injunction is made out. Hence, the present petition is dismissed.