Kerala High Court

Latha Menon vs Ponnamma on 17 May, 2022

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                     &
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
          Tuesday, the 17th day of May 2022 / 27th Vaisakha, 1944

                          OP(C) NO. 3271 OF 2019

            OS 2307/2015 OF PRINCIPAL MUNSIFF COURT,IRINJALAKUDA
PETITIONERS:

  1. LATHA MENON, AGED 60 YEARS, D/O.VADAKKEDATH AMMINI AMMA @
     KUNCHUKUTTI AMMA, BHARATH NIVAS, PESHKAR ROAD, MANAVALASSERRY
     VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680 121.
  2. LAKSHMI, AGED 39 YEARS, D/O.KOTHANATH, NARAYANANKUTTY, LAKSHMI
     NIVAS, POOMANGALAM VILLAGE, AIKKARAKUNNU DESOM, MUKUNDAPURAM TALUK,
     NADAVARAMBU (PO), THRISSUR DISTRICT-680 661.
  3. NAVANEETHA, AGED 33 YEARS, D/O.KOTHANATH NARAYANANKUTTY, LAKSHMI
     NIVAS, POOMANGALAM VILLAGE, AIKKARAKUNNU DESOM, MUKUNDAPURAM TALUK,
     NADAVARAMBU(PO), THRISSUR DISTRICT-680 661.

RESPONDENT:

     PONNAMMA, AGED 81 YEARS, D/O.CHERUPARAMBIL AMMUKUTTY AMMA,
     AIKKARAKUNNU DESOM, VELUKKARA VILLAGE, MUKUNDAPURAM TALUK,
     NADAVARAMBU(PO), THRISSUR DSITRICT-680 661.

     Op (civil) praying inter alia that in the circumstances stated in
the affidavit filed along with the OP(C) the High Court be pleased to stay
all further proceedings in OS 2307/2015 on the files of the Principal
Munsiff's Court, Irinjalakuda, pending disposal of the original petition.
     This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of OP(C) and this court's order dated
13.03.2020 and upon hearing the arguments of M/S.GIRIJA K GOPAL &
VIGY.K.N, Avocates for the petitioners and of SRI.S.K.BALACHANDRAN &
SMT.N.D.DEEPA, Advocates for the respondent, the court passed the
following:




                                                                    (p.t.o)
                                                                    'CR'

          ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
           -----------------------------------------------------
                       O.P.(C) No.3271 of 2019
          ------------------------------------------------------
                 Dated this the 17th day of May, 2022


                               ORDER

Ajithkumar, J

This is a referred matter.

2. In Seetha Ramachandran @ Seetha Varma and

others v. K.B.Radhakrishnan [2012 (4) KLT 856] a learned

Single Judge of this Court held that provisions of Order XXIII, Rule

1 of the Code of Civil Procedure, 1908 do not apply to

interlocutory applications. The said order was rendered after

referring to the judgments of the Madras High Court in Latchayya

and another v. Surya Prakasa Rao [AIR 1928 Madras 1165]

and of the Calcutta High Court in B.A. Stores Syndicate v.

Stores and Engineering Supply Company [AIR 1952 (39)

Calcutta 411 (CN 116)]. The said judgments were rendered

prior to introduction of the Explanation to Section 141 of the Code,

which was in the year 1976. Pointing out that in view of the

clarification in the said Explanation that 'proceedings' include

proceedings under Order IX of the Code as well, the matter was

referred to the Division Bench opining that the decision in Seetha

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Ramachandran requires a relook.

3. Heard the counsel appearing for the petitioners and

the learned counsel appearing for the respondent.

4. The learned counsel appearing for the petitioners,

Advocate Smt.Girija K. Gopal advanced arguments

exhaustively and contended that the provisions of Section 141

of the Code make applicable the procedure for the suits in the

Code to all proceedings in a court of civil jurisdiction and

therefore, the provisions of Order XXIII Rule 1 apply to every

interlocutory application. Its obvious corollary is that when an

interlocutory application is withdrawn without obtaining leave

of the court to institute a fresh one for the same purpose, no

second application is possible, in view of the bar under sub-

rule (4) of Order XXIII Rule 1 of the Code. Supporting the

view in Seetha Ramachandran, it is further submitted that

the amendment brought about to Section 141 of the Code

makes the position clearer, inasmuch as the proceedings

under Order IX also are brought into its penumbra, in addition

to the interlocutory matters in the pending suits which are

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already covered.

5. Per contra, the learned Counsel appearing for the

respondent, Advocate Sri. S.K. Balachandran contended that

invoking Section 141 of the Code, what is possible is to apply

procedural law only and not substantive law. Therefore, the

procedural part of the provisions in the Code intended to

apply to the suits can alone be made applicable to the other

proceedings in the courts of civil jurisdiction.

6. Both the learned counsel cited slew of decisions to

fortify their respective contentions. Decisions having relevance

to the points under consideration are referred to at

appropriate places. A few decisions, which deal with 'subject

matter', consequence of 'not press', res judicata and when can

a suit be permitted to be withdrawn, are not discussed since

not required to answer the reference.

      7.     In     Seetha     Ramachandran,        the       question

considered    was    whether   an application      filed quoting a

different provision after withdrawing an earlier application for

the same purpose without obtaining leave of the court to file a

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fresh one is barred under the provisions of Order XXIII Rule 1

(4) of the Code. While answering that question, the learned

Single Judge laid down two interwoven principles; (i) Order

XXIII Rule 1 deals with suits and part of the claim raised in a

suit only and (ii) Order XXIII Rule (1) does not apply to

interlocutory applications and the orders passed thereon.

8. In Seetha Ramachandran, the petitioners filed an

interlocutory application invoking Section 114 read with Order

XLVII Rule 1 and Section 151 of the Code seeking to review

the compromise decree passed in the suit. The petitioners, on

finding that wrong provisions were quoted, withdrew that

application and filed a fresh one with the very same relief

invoking the provisions of Order XXIII Rule 3 of the Code.

Rejection of that application was in question. The Court placed

reliance on not only the decisions in Latchayya and B.A.

Stores Syndicate but also the principle laid down by the

Apex Court in Manohar Lal Chopra v. Rai Bahadur Rao

Raja Seth Hiralal [AIR 1962 SC 527] and Jet Ply Wood

(P) Ltd. v. Madhukar Nowlakha and others [(2006) 3

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SCC 699] which quoted with approval the ratio in Rameswar

Sarkar v. State of West Bengal and others [AIR 1986

Calcutta 19]. The Apex Court in Manoharlal Chopra and Jet

Ply Wood (P) Ltd had considered the scope of inherent

powers which a civil court can exercise under Section 151 of

the Code. The ratio laid down was that the provisions in the

Code do not affect the power of the court to make orders

necessary for the ends of justice and that in the absence of a

specific provision in the Code, the court is competent to

invoke Section 151 of the Code, which is subject to the caveat

that such exercise of power shall only be in extreme cases;

where interest of justice demanded it. The question requires

consideration in this reference is limited to whether Order

XXIII Rule 1 deals with suits and part of the claim pleaded in

a suit only and, does Order XXIII Rule 1 apply to interlocutory

applications and the orders passed thereon. Therefore the

aforesaid decisions of the Apex Court and the Calcutta High

Court which explain the scope and ambit of Section 151 of the

Code do not have any relevance here.

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9. Implication of the decision in Seetha

Ramachandran is that none of the provisions in Rule 1 of

Order XXIII of the Code would apply to interlocutory

applications. The doubt raised is that, can there be such a

universal exclusion even after addition of the Explanation to

Section 141 by Act 104 of 1976 with effect from 01.02.1977.

Also, it is queried, since pre-amendment precedents were

relied on, if the ratio in Seetha Ramachandran went wrong?

10. Section 141 of the Code before the said

amendment reads:

"141. Miscellaneous proceedings The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction."

The Explanation to Section 141 added by the Act 104 of

1976 reads:

Explanation.-In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.

     11.   We    feel        that        in       order     to    have     a   proper

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understanding of the reason for adding the Explanation and

the real purport of the provision its legislative history has to

be looked into. It is apposite here to have a reference to the

following observations of the Apex Court in Nandini

Satpathy v. P. L. Dani and Another [(1978) 2 SCC 424] :

"33.......The only rule of construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do in such case best declare the intention of the law giver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute......."

12. The Law Commission in its 54th report had

recommended amendment to Section 141 of the Code. The

Commission deliberated upon in detail as to whether Section

141 of the Code should be made applicable to the execution

and other proceedings under the Code, proceedings under

other Acts, proceedings under the Constitution and also other

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similar proceedings. The need for such consideration has

arisen on account of the conflicting views taken by various

High Courts in the Country with regard to the applicability of

Section 141 to proceedings other than suits. Views with

respect to the applicability of Section 141 to execution

proceedings, interlocutory applications, proceedings under

Article 226 and 227 of the Constitution of India and also the

original proceedings under the other statutes were conflicting.

Observation in Mulla on CPC, 13 th Edition which was referred

to in Seetha Ramachandran at paragraph No.9 reflects the

fluid situation. It states that Section 141 of the Code intended

only that the procedure in proceedings like probate,

guardianship and so on and so forth shall be regulated by the

procedure for the suits in the Code. That view negates

application of Section 141 to interlocutory applications filed in

the civil courts. If that is the line of approach, proceedings

under Order IX of the Code also will get excluded from the

scope of Section 141. Cognizant of that uncertainty, the Law

Commission has recommended to amend Section 141 by

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adding the Explanation thereby to include within its scope,

the proceedings under Order IX of the Code and to exclude

proceedings under Article 226 of the Constitution of India.

There was no mention in the report as to whether execution

proceedings and interlocutory applications are to be either

included or excluded from the purview of Section 141 of the

Code.

13. Clause 50 in notes on Clauses appended to the

Code of Civil Procedure (Amendment) Bill, 1974 contains the

reason for the amendment of Section 141, which reads thus:

"Clause 50- The applicability of Section 141 to various types of proceedings has been the subject of controversy, particularly whether the section applies where an application to set aside ex parte proceedings or orders of dismissal for default are themselves dismissed for default or decided ex parte. The High Court of Bombay held that in such cases section 151 applies. The Supreme Court, however, came to a contrary conclusion. In the circumstances, Section 141 is being amended to clarify that the Section applies to proceedings under Order IX. The question whether an application under Article 226 of the Constitution is a "proceedings in a Court of civil jurisdiction" within the

O.P.(C) No.3271 of 2019

meaning of Section 141 has been the subject-matter of a controversy. While the Andhra High Court holds that Section 141 applies to such proceedings, the Allahabad, Calcutta, Madras and Punjab High Courts have held that Section 141 does not apply to such proceedings. In the circumstances, it is being clarified that Section 141 does not apply to proceedings under Article 226 of the Constitution".

14. A Joint Parliamentary Committee constituted for

making its recommendations with respect to the said Bill has

submitted its report on 01.04.1976. During the deliberations

of the Committee, the nature of amendment required to

Section 141 of the Code attracted serious discussions. There

was a strong line of thinking that the execution proceedings

under the Code have to be excluded but the proceedings

under Article 226 and 227 of the Constitution of India were to

be included within the purview of Section 141. On observing

that the Apex Court had already taken the view that the

execution proceedings under the Code are beyond the purview

of Section 141, it concluded that the execution proceedings

does not require mention in Section 141. The Committee

ultimately made up its view that the proceedings under

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Articles 226 and 227 of the Constitution of India should be

excluded from the scope of Section 141 and thereby the

recommendation of the Law Commission was accepted.

Although there were deliberations before the Joint

Parliamentary Committee as well as in the Parliament as to

whether interlocutory applications in general are to be

mentioned, the amendment came to be passed without there

having any mention about interlocutory applications. The

Explanation only clarifies that the expression 'proceedings'

includes proceedings under Order IX of the Code. However,

the legislative intent is clear from the developments

culminating in the amendment, that interlocutory applications

are covered by Section 141 of the Code, and clarification was

required so as to add applications under Order IX of the Code

also since, such applications are filed after disposal of the

suits. In the said circumstances, it is also required to consider

the judicial precedents on the point.

15. Initially, the view was that Section 141 of the Code

was intended to make the procedure in the Code for the suits

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applicable also to the original proceedings under special

statutes like the Guardian and Wards Act, 1890, the Indian

Succession Act, 1920, and so on and so forth. To which other

proceedings, like execution, interlocutory applications and,

proceedings under Articles 226 and 227 of the Constitution of

India should apply, the view of various courts have been so

conflicting. Whether Section 141 of the Code applies if an

application is filed to restore an application to set aside an ex

parte decree or restore a suit dismissed for default has been

more controversial. It was in that context the Explanation was

added, whereby it was clarified that the proceedings made

mention of in Section 141 include proceedings under Order IX

of the Code.

16. It is interesting to note that the understanding of

Section 141 by various courts prior to the amendment also

was that it takes in its fold the proceedings under Order IX of

the Code.

17. In Munshi Ram v. Banwari Lal (deceased) and

His Heirs and Legal Representatives and another [AIR

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1962 SC 903] the question was whether after a decree on

the arbitral award was properly passed, the compromise

arrived at between the parties which works out only within the

terms of the award be given effect by the court by making a

substitution in the operative part of the decree. The Apex

Court held that such an application can be entertained by

invoking the provisions of Section 41 of the Arbitration Act

and also Section 141 of the Code. After referring to that

principle, the Apex Court in Ram Chandra Aggarwal and

another v. State of U. P. and another [AIR 1966 SC

1888] held,

"though there is no discussion, the Court has acted upon the view that the expression "civil proceeding" in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of guardian, etc., but that it applies also to a proceeding which is not an original proceeding".

18. A Full Bench of the Madhya Pradesh High Court in

Nathu Prassad v. Singhai Kapurchand [AIR 1976

Madhya Pradesh 136] took cue from the said decisions to

hold that Section 141 of the Code applies to applications to

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set aside ex parte proceedings or orders of dismissal for

default and also proceedings initiated when such an

application itself is dismissed for default or decided ex parte.

19. The Apex Court in Nawab Usmanali Khan v.

Sagar Mal [AIR 1965 SC 1798] held that by virtue of

Section 141, the provisions in the Code applicable to the suits

are applicable to proceedings in the civil court under the

Indian Arbitration Act, 1940. Following the said principle,

various High Courts including the High Court of Kerala took

the view that the interlocutory applications are also covered,

the same way Section 141 of the Code covers suits.

20. After addition of the Explanation to Section 141 of

the Code by the amendment in 1976, which says that the

expression "proceedings" includes proceedings under Order IX

there is no reason for any doubt on that aspect. On a careful

reading of Section 141, it is clear that the procedure provided

in the Code with regard to the suit shall be followed as far as

it can be made applicable in all proceedings in any court of

civil jurisdiction. A long line of post amendment decisions also

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fortify the said view. A Division Bench of this Court in

Ezhuthachan National Academy and others v.

R.Gopinathan Nair and others [2019 (2) KLT 1073],

considered a question referred to it by a learned Single Judge.

The question was, does the District Court, while exercising

jurisdiction under Section 25 of the Travancore-Cochin Literary

Scientific and Charitable Societies Registration Act, 1955,

have the power to grant an interim order of injunction? The

obvious preluding question was, if Section 141 of the Code

applies to the interlocutory matters. The Division Bench

followed the principle in Navab Usmanali Khan to take the

view that the procedure applicable to suits are to be followed

while dealing with interlocutory applications also by

implication of Section 141 of the Code. Decisions of various

High Courts which reiterated that view have also been

referred to.

21. The question that was considered in S. Noordeen

v. V. S. Thiru Venkita Reddiar [(1996) 3 SCC 289] was

whether a proceedings under Order XXXVIII Rule 8 read with

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Order XXI Rule 58, is a civil proceeding. The Apex Court held,

"7. The question is: whether proceedings under XXXVIII Rule 6 of the Code is part of the civil proceedings? It is seen that when an application under XXXVIII Rule 1 is made for attachment before judgment, as envisaged in clauses (i), (ii),

(iii) and (iv), if the defendant furnishes security, then the need to make an attachment of the properties does not arise. On his failure to do so, Rule 6 gives power to the court to attach the properties before judgment where no cause is shown or security is not furnished. Then mode of attachment has been provided in Rule 7. It says that "save otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree." Rule 8 provides adjudication of claim to property attached before judgment. The procedure has been provided for attachment under Order XXI Rule 38 and adjudication under XXI Rule 58.

8. Section 141 of the Code provides that "the procedure provided therein in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction".

      The    Explanation       amplifies    the    doubt     that   the
      expression      "proceedings"         includes      proceedings
      under     Order    IX,     but   does       not    include    any

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proceeding under Article 226 of the Constitution". It would thus be clear that the proceedings envisaged for adjudication under Order XXXVIII Rule 8 read with Order XXI Rule 58, is a civil proceeding. When attachment of the properties has been made before the judgment, they become part of the civil proceedings in the suit....."

(underline supplied)

22. Precedents in this respect are almost harmonious.

It is, therefore, no more res integra that Section 141 of the

Code applies to interlocutory applications.

23. The further question to be examined to answer the

reference is as to the ambit of applicability of the provisions in

the Code which govern suits, to the other proceedings,

particularly, interlocutory applications.

24. The fundamental rule of interpretation is the literal

interpretation for, the function of the court is only to expound

the meaning of the provision and not to legislate. Only if it is

unable through the literal interpretation, to understand the

legislative intent, the court is required to go to the other

modes of interpretation. The verbal expressions contained in

Section 141 of the Code makes it clear that the procedure

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provided in the Code in regard to the suits shall be followed in

other proceedings in any court of civil jurisdiction, as far as

can be made applicable, meaning thereby the procedure to be

followed in a suit, mutatis mutandis shall be followed in the

interlocutory applications also. When it is emphasised that the

procedure as similarly as possible is to be followed, the

question arises is where a provision in the Code that deals

with substantive right of the parties, can also be applied to

interlocutory applications.

25. The Apex Court in Navab Usman Alikhan held

that Section 141 of the Code makes applicable to other

proceedings only those provisions in the Code which deal with

procedure and not those which deal with substantive rights. A

Division Bench of this Court in Thresia v. Xavier [1976 KLT

209] held that provisions in the Code contains substantive

and procedural rights and what is made applicable to

proceedings other than suits by Section 141 of the Code is

only those provisions which deal with matters of procedure.

The Court further held that the right of a person to institute a

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proceedings as an indigent is a substantive right. Following

the said principle, another Division Bench of this Court in

Ezuthachan National Academy held that Section 141 of the

Code makes applicable to other proceedings, only those

provisions of the Code which deal with the procedure and not

those which deal with the substantive rights. The Apex Court

in Jaswant Singh v. Parkash Kaur [(2018) 12 SCC 249]

was concerned with the question, where an application for

restoration of application under Order IX, Rule 13 of the Code

is dismissed for non - appearance of the applicant, would not

that order be amenable to appeal under Order XLIII, Rule 1(c)

or 1(d). The Apex Court has considered the extent of

applicability of Section 141 of the Code to the interlocutory

applications. After referring to various decisions of the Apex

Court as well as different High Courts including what has been

held by this Court in Kallianikutty Amma v. State of

Kerala [AIR 1974 Kerala 171] it was observed that the

provisions of Section 141 of the Code could not be applied

except to the procedural matters; it could not be invoked in

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cases where a substantive right is involved. The conspectus of

the aforesaid discussion is that the procedural part of the

provisions in the Code which are applicable to the suits shall,

as far as can be made applicable, alone be followed in

interlocutory applications.

26. This takes us to the moot question whether the

provisions of order XXIII Rule 1 can have application to

interlocutory applications. The answer depends, whether the

provisions contained in Order XXIII Rule 1 deal with

substantive right or procedural right.

27. In Halsbury's Laws of India, Vol-VII, at 65.001, the

essential distinction between substantive law and procedural

law is stated thus, "While substantive law determines rights

and liabilities of parties or confers legal status or imposes and

defines the nature and extent of legal duties, adjective or

procedural law prescribes the practice, procedure and

machinery for the enforcement or recognition of legal rights

and liabilities by a court of law or other recognised or a

properly constituted tribunal. Thus, procedural law is always

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subservient to substantive law. Nothing can be given by a

procedural law that is not sought to be given by a substantive

law, and nothing can be taken away by a procedural law that

is given by a substantive law."

28. It is indisputable that the Code of Civil Procedure

not only contains procedural provisions but also substantive

provisions. A few instances of substantive provisions in the

Code pointed out by the Apex Court are;

(i) Res judicata contained in Section 11 of the Code partakes of the character of substantive law.

"For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in Section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law (per Lord Wright in Canada & Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Stemships Ltd. (1946) 3 W.W.R. 759 at p. 764)." See Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry [(1981) 2 SCC

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646].

(ii) Provision relating right to file an appeal is a substantive provision. "Right to file an appeal under Section 96(2) of the Code is a statutory remedy. The right to appeal is not a mere matter of procedure; but is a substantive right." See: Mohan N. v. R. Madhu [AIR 2020 SC 41], Videocon International Ltd. v. Securities and Exchange Board of India [(2015) 4 SCC 33] and Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation [(2009) 8 SCC 646].

(iii) Provisions of Rule 4 (3) read with Rule 11 of Order XXII of the Code is part of the substantive law. "Under Rule 4 (3) read with Rule 11 of Order XXII of the Code the appeal abates as against the deceased respondent where within the time limited by law no application is made to bring his heirs or legal representatives on record. As pointed out by this Court in State of Punjab v. Nathu Ram [AIR 1963 SC 89] it is not correct to say that the appeal abates against the other respondents. Under certain circumstances the appeal. may not be proceeded with and is liable to be dismissed. But that is so not because of the procedural defect but because, as Mulla has pointed out, it is part of the substantive law. (Mulla on C.P.C. Vol. I Thirteenth Edition page 620

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under note Non-joinder of- Parties)." See: Ramagya Prasad Gupta v. Murli Prasad [AIR 1972 SC 1181]

29. Learned counsel for the petitioners placed reliance

on the decision in Narain Singh S. and another v. M/s.

Ram Gopal Madan Lal and others [AIR 1981 Delhi 88] to

contend that the bar under Order XXIII Rule 1(4) of the Code

applies to interlocutory applications. In that case the plaintiffs

filed an application under Order XXXIX, Rules 1 and 2 of the

Code on 8th October, 1979, wherein an ex parte injunction

sought for by them was issued by the trial court. But this

application was dismissed as being not pressed on 21 st

March, 1980. The question therefore was whether the

plaintiffs-appellants were entitled to file a fresh application for

injunction on the same grounds. A Single Bench of the Delhi

High Court held, "Under sub-rule (4) of Rule 1 of Order XXIII

a plaintiff is precluded from instituting any fresh suit in

respect of the claim withdrawn by him. Thus if a plaintiff

withdraws a suit, he is not entitled to file a fresh suit on the

same cause of action. Similarly, if the plaintiff files an

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application for the grant of a temporary injunction and after

notice to the opposite party who has filed a reply and during

the course of arguments the plaintiff withdraws the

application for temporary injunction, it appears that the

plaintiff is debarred from instituting a fresh application unless

there has been change of circumstances since the date of

dismissal of the previous injunction application. Section 141 of

the Code makes the procedure applicable to the suits to all

proceedings in court of civil jurisdiction. The proceedings for

the grant of temporary injunction are proceedings in a civil

court. Thus reading together Order XXIII and Section 141 of

the Code it appears that the present application for temporary

injunction filed on 16th April, 1980 decided by the impugned

order dated 15th July, 1980 is barred under sub-rule (4) of

Rule 1 of Order XXIII of the Code."

30. One of the issues deliberated upon by the Division

Bench of this Court in Ezhuthachan National Academy

was, while Section 141 of the Code makes procedure for the

suits applicable to other proceedings, do the provisions in the

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Code which deal with the procedure alone and, not those

which deal with the substantive rights, apply to the other

proceedings. The premise was that, if Section 94 read with

Order XXXIX Rule 1 in the Code is a substantive law, Section

141 cannot be invoked, to grant an order of temporary

injunction. The elaboration on this point by the Court is

profitably extracted below:

"The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions - jus quod ad actiones pertinet- using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to former determines their conduct and relations in respect of the matters litigated."

A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation whether I have a right to recover certain property is question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in

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what courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions. What facts constitute a wrong is determined by the substantive law; what facts constitute proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely."

31. The said differential approach as between

procedural and substantive provisions in the Code was not

attempted to be drawn in Narain Singh while holding that

bar under sub-rule (4) of Rule 1 of Order XXIII of the Code

applies to an application for temporary injunction. We are,

therefore, of the view that the said decision did not lay down

the correct principle.

32. Order XXIII Rule 1(4) of the Code bars filing of a

fresh suit where the plaintiff abandons the suit or part of a

claim in the suit or withdraws from the suit or part of a claim

without permission to file a fresh one. Applying the aforesaid

rationale, the provision contained in Order XXIII Rule 1(4) of