High Court allowed revision challenging interim injunction granted against third parties not parties to original petition. Court held injunctions under CPC Order XXXIX cannot be granted against non-parties or beyond suit scope.
Interim injunction order dated 15.07.2013 in I.A.No.1248 of 2013 set aside. Civil revision allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CIVIL REVISION PETITION No.3964 of 2013
ORDER :
The civil revision petition is filed under Article 227 of the Constitution of India, challenging the order dated 15.07.2013 passed in I.A.No.1248 of 2013 in O.P.No.106 of 2013 by the Principal District Judge, Kurnool, whereby the petition filed under Section 23 of the A.P. Societies Registration Act, 2001, was allowed.
Respondent No.1 herein is the petitioner before the trial Court, who filed petition under Order XXXIX Rules 1 and 2 of Code of Civil Procedure (for short “C.P.C.”) for grant of interim injunction restraining the so called list of members whose names are printed from 8th page of the Church Primary Membership Register dated 31.08.2012 and other members, if any, who are allotted membership on submitting their applications instead of declaration forms, from participating and interfering with any of the official affairs of the Church, including voting and participating in the General Body meeting as per bye-laws of the Church, pending disposal of the above main O.P., alleging that as per the bye-laws of the society enumerated in Part-A of the Constitution of the Church, a person, who intends to get membership of the Church through Baptism, should fill-up and submit declaration form issued by respondent No.2/Secretary as per the conditions printed on the reverse side of the said declaration and pay membership fee of at least Rs.900/- per annum. He recently learnt that respondent No.2/Secretary replaced an application for membership in the place of the declaration form to be submitted by the members containing the conditions on the reverse side of the said declaration for getting membership and
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allotted membership to more than 300 persons, contrary to the byelaws of the Constitution of the Church and got their names published as members in the Book called Church Primary Membership Register as on 31.08.2012, more particularly from page No.8 of the said Book; that respondent No.2/Secretary is collecting membership fee of only Rs.500/- from the newly joined members, prayed to allow the petition.
Respondent Nos.2 to 4 herein are respondent Nos.1 to 3 before the trial Court, who filed counter denying the material allegations made in the petition interalia contending that on 10.03.2013 in its special meeting, the Standing committee of the Church resolved to recommend the applications of one Sreeramulu and others to be referred to the General Body; that on 14.05.2013 in the regular Standing Committee meeting also, it was resolved as such; that in the General Body meeting dated 16.05.2013, it was resolved that if such person submits application, declaring that he/she obtained Baptism and has been living as a Christian having becoming as Christian etc., by affixing his/her two passport photos, such application would be recommended to the next General Body meeting for considering their membership and right to vote; that thereafter in the next General Body meeting dated 16.05.2013, it was resolved that all such applicants be given primary membership and if they pay at least six monthly instalments at Rs.500/-, they also would be given right to vote, as discussed therein, by relaxing the earlier conditions; that the petitioner also attended the said General Body meeting and signed those resolutions, giving his consent to those resolutions and therefore, the petitioner is estopped as to dispute the membership of such persons; that nothing was
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unconstitutionally done and all the resolutions were perfectly constitutional; that the petitioner has not approached the Court with clean hands, therefore, he is not entitled to any relief.
It is further alleged in the counter that the persons, who are included as members of the Church as per the above resolutions, are proper and necessary parties to this O.P. and as such, the O.P. is not maintainable: that the petitioner did not disclose as to the loss or irreparable injury that would be caused to him, if those persons become members of the Church, requested to dismiss the petition.
Upon hearing argument of both the counsel, the Court below found that all the three ingredients for granting interim injunction are found in favour of the petitioner, allowed the petition as prayed for by the petitioner.
Aggrieved by the same, the present revision is preferred by one B.Sriramulu, who is a third party to the petition, under Article 227 of the Constitution of India on the sole ground that when he was not a party to the original petition, no relief can be granted against him exercising power under Order XXXIX Rules 1 and 2 of C.P.C. Therefore, interim injunction granted against the petitioner restraining him from participating and interfering with any of the official affairs of the Church is without any sanction of law, requested to set aside the impugned order passed by the learned Principal District Judge, Kurnool.
Ms.Nimmagadda Revathi, learned counsel for the revision petitioner raised only one contention that interim injunction cannot be granted against a third party or a person who is not a party to the
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original suit/petition and relied on judgment of this Court in
“ Kagitala Venkata Chalapathi Rao v. Sabarunnissa Begum1 ”.
Learned counsel for respondent Nos.2 to 4 contended that the impugned order is only restraining the petitioner from interfering and voting in the general body meeting for the year 2013, thereby the revision petition becomes infructuous since the purpose is already served.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
Whether the interim injunction can be granted against a person who is not a party to the original petition No.106 of 2013 without claiming any relief in the main suit?
P O I N T :
Indisputably, the main O.P.No.106 of 2013 was filed under Section 23 of the A.P.Societies Registration Act. O.P.No.106 of 2013 was filed by M.Shanti Das against Coles Centennial Telugu Baptist Church, Kurnool, R.P.Danamaiah and B.E.Robert Clive, who are respondents in the main petition. But, the present revision petitioner is B.Sriramulu, whose name was shown in the list of members from 8th page of the Church Primary Membership Register dated 31.08.2012. Either the revision petitioner B.Sriramulu or other members whose names are appearing in the Church Primary Membership Register are not impleaded as parties to the main petition or in I.A.No.1248 of 2013, but claimed interim injunction to restrain them from participating and interfering with the church affairs. Therefore, the relief sought for in I.A.No.1248 of 2013 is beyond the relief claimed in the main petition.
1 2017(4) ALT 367
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Similar issue came up before the Madras High Court in “ P.M.
Aboobacker v. K. Kunhamoo2 ”, wherein the Court held as follows:
"......However, if I may say so with respect, I find myself in complete agreement with the principle that underlies the second sentence in the passage I have extracted above, that an interim relief granted during the pendency of a suit should not be of greater scope than what could be granted in the suit itself, after the party has established his right in the suit to that relief. In my opinion, that would be a very relevant factor to be taken into account in deciding whether a Court should or even could grant such an interim relief, especially so when the person against whom the interim injunction is sought is not a party to the suit, and against whom no relief could be granted in the suit itself.''
The law declared by the Madras High Court is that the court shall not grant an interim order against the person who is not a
party to the suit or proceedings
Relying on the judgment of the Madras High Court in “ P.M. Aboobucker v. K. Kunhamoo ” (referred supra) and on the judgment of the High Court of Judicature at Hyderabad in “ Mokkapati Harihara Prasad v. Nalakuditi Nageswara Rao3 ” this court concluded that injunction cannot be granted against the person who is not a party to the suit. Even otherwise, in “ Shyamali Das v. Illa Chowdary4 ” the Apex Court made it clear that a disputant is entitled to an interim order, provided he is a party thereto. If for one reason or the other, he cannot be impleaded as a party to the proceeding, the Court would have no jurisdiction to pass any interim order in his favour.
Thus, the person who is a party to the suit alone is entitled to claim injunction or similarly injunction can be granted against the party to the suit, but not against the third party who is not on record.
2 AIR 1958 Madras 287
3 1993 (3) ALT 76
4 AIR 2007 SC 215
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In “ Bengal Ambuja Housing Development Limited v.
Pramila Sanfui5 ” the Apex Court held that it is a well settled principle of law that either temporary or permanent injunction can be granted only against the parties to a suit. Further the purported consent order in terms of Order XXXIX of the Code of Civil Procedure is only binding as against the parties to the suit.
In “ Marwari Sabha Pilakhwa v. Sri Kanhaya Lal6 ”, the
same principle was laid down holding that injunction cannot be granted against the person, who is not a party to the suit. The law declared by the Apex Court and High Courts is in support of the petitioners herein that an application against the person, who is not a party to the suit under Rules 1 and 2 of Order XXXIX of C.P.C. is not maintainable.
Rules 1 and 2 of Order XXXIX CPC are extracted hereunder for
better appreciation:
"1. 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 or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,
the Court may grant a temporary) injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, 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.-
5 (2016) 1 SCC 743
6 AIR 1973 All 298
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(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 a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like 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."
On close analysis of Rules 1 and 2 of Order XXXIX of CPC, it is clear that interim order can be granted only when defendant threatens to damage, alienate, sale, remove or dispossess the plaintiff from the property, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit. An injunction can be granted when the 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. So the language used in the provision is clear that when the property is likely to be alienated or attempted to be alienated by any party to the suit, an interim injunction can be granted.
Thus, in view of the law laid down by the Apex Court and other High Courts, injunction can be granted against a party to the suit or proceedings, but not against a third party. In the present case, B.Sriramulu is a third party, whose name is appearing as one of the members in the Church Primary Membership Register. But, without impleading B.Sriramulu or any other persons, whose names are appearing in Church Primary Membership Register, the petitioner in I.A.No.1248 of 2013 conveniently claimed blanket order restraining all the members, whose names are appearing in Church Primary
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Membership Register, and the trial Court granted interim injunction even without looking into the consequences of grant of said interim order without impleading third party as a party to the original petition.
The other contention of the learned counsel for the petitioner is that the Court cannot grant interim relief beyond the relief claimed in the main petition.
In the main petition, respondent No.1 herein claimed the
following relief:
Though the 2nd relief relates to admission of members into
church on submission of their applications instead of submission of declaration forms, the members of the church are not impleaded as parties to the main petition, but claimed relief against them. Thus, the petitioner and other members, whose names are appearing in the Church Primary Membership Register are not parties to the main petition, but they were sought to be restrained by interim injunction under Order XXXIX Rule 1 and 2 of C.P.C.
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A similar case came up before the Apex Court “ Sree Jain Swetambar Terapanthi VID (s) v. Phundan Singh7 ”, wherein the court considered grant of an interim order beyond the scope of the suit and at paragraph 19, held as follows:
"...no relief should be granted in interlocutory proceedings beyond the scope of the suit. It may be noted that the present suit out of which the appeal has arisen was filed by the appellant-society for declaration and injunction, the suits filed by the contesting Respondents 2, 4 to 6, challenging their expulsion from the society, were dismissed except the suit of Respondent No. 4, which is pending. No material is placed before us to show that any relief is granted to him in that suit....."
A similar view is expressed by this Court in “ Kolli Butchi Koteswara Rao v. District Level Committee8 ” Hence, it can safely be concluded that granting interim relief beyond the scope of the suit or beyond the relief claimed in the suit by way of an interim order is unsustainable and it is an illegality.
Learned counsel for the respondent Nos.2 to 4 though contended that the petition became infructuous, the relief claimed is not limited to the year 2013 and the interim relief is granted during pendency of original petition and the question of petition becomes infructuous does not arise. Hence, the contention of the learned counsel for the respondent is hereby rejected.
In view of the law declared in the judgments (referred supra), grant of interim injunction against the revision petitioner and others, who are not parties to the original petition and without claiming any relief in the main petition against the revision petitioner and others without impleading them is a clear illegality. Therefore, the order impugned in the revision is liable to be set aside as the Court below failed to consider the scope of original petition and relief claimed
7 (1999) 2 SCC 377
8 2004 (3) ALT 822
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therein and consequences of grant of such interim order without impleading the persons, whose rights are affected by such order, committed an illegality. Consequently, the order impugned in the revision petition is liable to be set aside.
In the result, the civil revision petition is allowed setting aside the order dated 15.07.2013 passed in I.A.No.1248 of 2013 in O.P.No.106 of 2013 by the Principal District Judge, Kurnool. No costs.
The miscellaneous petitions pending in all the three revisions, if any, shall also stand closed.
JUSTICE M. SATYANARAYANA MURTHY
16.12.2020 Ksp
3 issues framed by the court
Whether an interim injunction can be granted against a person who is not a party to the original petition or suit.
Whether interim relief can be granted under Order XXXIX Rules 1 and 2 of CPC against third parties not impleaded in the main suit.
Whether grant of interim injunction beyond the scope of relief claimed in the main petition is sustainable.
Colour shows how this judgement treated each authority
Kagitala Venkata Chalapathi Rao v. Sabarunnissa BegumReferred¶20
2017(4) ALT 367
P.M. Aboobacker v. K. KunhamooRelied on¶29
AIR 1958 Madras 287 · Who else cites this
Mokkapati Harihara Prasad v. Nalakuditi Nageswara RaoRelied on¶32
1993 (3) ALT 76
Shyamali Das v. Illa ChowdaryReferred¶33
AIR 2007 SC 215 · Who else cites this
Bengal Ambuja Housing Development Limited v. Pramila SanfuiReferred¶41
(2016) 1 SCC 743 · Who else cites this
Marwari Sabha Pilakhwa v. Sri Kanhaya LalReferred¶43
AIR 1973 All 298 · Who else cites this
Sree Jain Swetambar Terapanthi VID (s) v. Phundan SinghReferred¶76
(1999) 2 SCC 377 · Who else cites this
Kolli Butchi Koteswara Rao v. District Level CommitteeReferred¶78
2004 (3) ALT 822
3 provisions across 3 enactments
B. Sriramulu
M. Shanti Das
Coles Centennial Telugu Baptist Church, Kurnool
R.P. Danamaiah
B.E. Robert Clive
M. Sathyanarayana Murthy
M. Satyanarayana Murthy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
