M/S Vaishno Devi Traders Pvt. Ltd vs Ashoka Nanda Das And Anr
2021 Latest Caselaw 2581 Gua

                                                                          Page No.# 1/4

GAHC010146022021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : CRP/49/2021

            M/S VAISHNO DEVI TRADERS PVT. LTD.
            A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS
            REGISTERED OFFICE AT NH 37, BELTOLA, GUWAHATI, DIST KAMRUP M
            ASSAM
            REPRESENTED BY ITS AUTHORISED REPRESENTATIVES MR.
            YOUDHISTRA BHAMA, S/O SRI BALWAN BHAMA,
            RESIDENT OF HOUSE NO. 35 A, RADHA KRISHNA PATH,NEAR INCOME
            TAX COLONY BANGAON BELTOLA, GUWAHATI, DIST KAMRUPM ASSAM,



            VERSUS

            ASHOKA NANDA DAS AND ANR.
            S/O LATE J.N DAS, RESIDENT OF S 17, A/5 GF, DLF CITY III, GURGAON,
            122002,HARYANA,

            2:M/S SOFT DEAL TRADING COMPANY PVT. LTD.
            A COMPANY REGISTERED UNDER THE COMPANIES ACT
             HAVING ITS OFFICE AT ACME PLAZA
            ANDHERI KURLA ROAD
            ANDHERI (EAST) MUMBAI
             REPRESENTED BY MS. DEVINA DSOUZ

Advocate for the Petitioner   : MR. R K BHUYAN

Advocate for the Respondent : MR. A C SARMA
                                                                              Page No.# 2/4

                                  BEFORE
                 HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                      JUDGMENT

28.10.2021

Heard the learned senior counsel Mr. D. Das, assisted by Mr. R. K. Bhuyan, Advocate for the petitioner. Also heard the learned senior counsel Mr. K. N.Choudhury, assisted by Mr. G. Bharadwaj, Advocate for the respondent.

This is an application under Section 115 of the Code of Civil Procedure whereby the order dated 09.09.2021 passed by the Additional District Judge, Kamrup at Amingaon in Misc. Appeal No.2/2021 is put to challenge.

The facts necessary for disposal of this application under Section 115 of the CPC lies within a short campus- the present petitioner filed a suit being TS 156/2019 in the Court of the Civil Judge, Kamrup at Amingaon against the present respondents seeking a decree of declaration, specific performance of contract, cancellation of a Deed of Agreement for sale and for injunction. Along with the said suit, a petition under Order 39 Rule 1 and 2 of the CPC read with Section 151 of the said Code was filed and this petition was registered as Misc. (J) Case No. 190/2019. The Court of the Civil Judge, after hearing both sides granted the ad-interim injunction restraining the respondents, particularly, the respondent no. 1 from alienating and transferring the suit property to any other person and also directed the respondents not to disturb the peaceful possession of the petitioner over the suit property.

Being aggrieved by the aforesaid order, the respondent no. 1 filed an appeal in the Court of the Additional District Judge, Kamrup at Amingaon and the appeal was registered as Misc. Appeal No. 02/2021. It may be stated that the respondent no. 1 also filed a petition before the appellate Court for seeking a stay of the said order dated 21.01.2021 and this petition was registered as Misc. (J) Case No. 4/2021.

While disposing of Misc. (J) Case No. 4/2021, the appellate Court held that the case presented by the present petitioner has all the necessary ingredients for granting temporary injunction. Interestingly, the same appellate Court on 09.09.2021 while disposing of the Misc. Appeal No. 2/2021 held that the petitioner's case does not have any of the necessary ingredients for granting ad-interim injunction.

The appellate Court also held that according to Section 14 of the Specific Relief Act, the contracts, for violation of which monetary compensation is adequate relief, are not enforceable in law.

The learned senior counsel Mr. Das has pointed out that the appellate Court has relied upon the old Specific Relief Act of 1963. Mr.Das has submitted that on 01.102018, the aforesaid Specific Relief Act of 1963 was amended whereby major changes were incorporated in Section 14 of the said Act.

In fact, Section 14 (a) of the old Act is no more available in Section 14 of the Page No.# 3/4

new Act. In the said Clause it was stated that a contract for the non performance of which compensation in money is an adequate relief such contracts are not enforceable. After the amendment of the Specific Relief Act that Clause is no more available in Section 14 of the Act.

Mr. Das has pointed out that it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect. In order to buttress his argument, Mr. Das has relied upon the judgment of the Supreme Court rendered in Ex-Capt. K.C. Arora v. State of Haryana, (1984) 3 SCC 281. Paragraph 15 of the judgment is quoted as under-

"15. It may be pointed out at the very outset that the Parliament as also the State Legislature have plenary powers to legislate within the field of legislation committed to them and subject to certain constitutional restrictions they can legislate prospectively as well as retrospectively. It is, however, a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect. But the rule in general is applicable where the object of the statute is to affect the vested rights or to impose new burden or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to effect existing rights, it is deemed to be prospective only. Provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. The Governor can also exercise the same powers under Article 309 of the Constitution and there is not the slightest doubt that the impugned amendment brought in has been made retrospective. The impugned amendments in the instant case by necessary implication have undoubtedly a retrospective effect."

Per contra, Mr. Choudhury has deliberated upon some principles of interpretation of statute and supported impugned judgment.

I have bestowed my anxious consideration to the submissions made by the learned counsel for both sides.

It has been laid down in Section 115 of the CPC that under this Section, the High Court shall not, vary or reverse any order made or any order deciding an issue in the course of a suit, or other proceedings, except where the order, if it has been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

High Court exercises jurisdiction under Section 115 of the CPC when subordinate Courts exercises jurisdiction not vested in it by law and when subordinate Court fails to exercise its jurisdiction so vested. High Court can exercise jurisdiction under Section 115 of the CPC if a subordinate Court illegally exercises its jurisdiction. But the rider is that in its jurisdiction under Section 115 of the CPC, the High Court is not entitled to Page No.# 4/4

vary or reverse any decree or order against which an appeal lies to the High Court or to any Court subordinate to it.

In the case in hand, the appellate Court while disposing of the Misc. (J) Case No.4/2021 held that the present petitioner has proved his case for injunction on the basis of the fact that he had a prima facie case, and the balance of convenience tilted in his favour. But while the Misc. Appeal No. 2 of 2021 was disposed of on 09.09.2021, the appellate Court held that the ingredients for granting ad-interim injunction under Order 39 Rule 1 and 2 of the CPC are absent.

The one Single Court having two different views on the same issue is against the established judicial decorum. Moreover, the appellate Court relied upon Section 14 of the old Specific Relief Act of 1963, though the said Act was amended on 01.10.2018 and thereby Clause (a) of the erstwhile Section 14 was deleted.

Now, this Court is of the opinion that the impugned order dated 09.09.2021 passed by the Additional District Judge, Kamrup, Amingaon in Misc. Appeal Case No. 02/2021 suffers from perversity. Therefore, this Court hereby holds that a fresh decision by the Additional District Judge, Kamrup, Amingaon is necessary in this issue. Therefore, the present petition under Section 115 of the CPC is allowed. The impugned order dated 09.09.2021, passed by the Additional District Judge, Kamrup, Amingaon in Misc. Appeal Case No. 02/2021 is set aside. The matter stands remanded to the appellate Court i,e the Court of the Additional District Judge, Kamrup, Amingaon to pass a fresh order after hearing both sides.

With this observation the present application is disposed of.

JUDGE

Comparing Assistant