temporary injunctions part 2

Supreme Court of India

Arjun Singh vs Mohindra Kumar & Ors on 13 December, 1963

It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been dis- posed of the court would be justified in rejecting the same as an abuse of the process, of court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under O. IX. r. 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to "set the clock back" does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages, so as to preclude its being reconsidered. Even if the rule of resjudicata does not apply it would not follow that on every subsequent day on which the suit stands adjourned for further hearing the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle of resjudicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application 'of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of resjudicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent, nay,, would be bound to take those into account and make an order conformably to the facts freshly brought before the court.

In the case of Sunil Kumar and Anr. v. Ram

Parkash and Ors., AIR 1988 SC 576 the Hon'ble Apex Court

has observed that karta is the best person as to how the joint

family estate could be beneficially put into use to subserve the

interests of the family. A coparcener cannot interfere in these

acts of management. Apart from that a father karta in addition to

the aforesaid powers of alienation has also the special power to

sell or mortgage ancestral property to discharge his antecedent

debt which is not tainted with immorality. If there is no such need

or benefit, the purchaser takes risk and the right and interest of

coparcener will remain unimpaired in the alienated property.

Therefore, he cannot move the Court to grant relief by injunction

restraining the karta from alienating the coparcenary property.

The coparcener has adequate remedy to impeach the alienation

made by the karta.

The application for breach of injunction should be

separately registered as Misc. Judicial case and should be tried

by framing appropriate points. The proceeding under Order 39,

Rule 2A of the Civil Procedure Code are absolutely independent

proceedings. ( Rampyaribai Sukhdeo Daga and ...Vrs..

Niladevi Naryandas, re