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When defendant is not entitled to claim temporary injunction without filing counter claim?

IN THE HIGH COURT OF KARNATAKA

Writ Petition Nos. 58906 of 2013 and 16412 of 2014 (GM-CPC)

Decided On: 05.09.2014

Shakunthalamma

Vs.

Kanthamma

Hon’ble Judges/Coram: N. Kumar, B.S. Patil and Rathnakala, JJ.

1. These writ petitions are placed before us by the Hon’ble Chief Justice on the request of the Learned Single Judge to refer the following question to a larger Bench for consideration:

“Whether the defendant in a suit for declaration and injunction can maintain an application for injunction under Order 3y, Rule 1(c) of the Civil Procedure Code, 1908?”

Before answering the above question, it is useful to briefly refer to the facts giving rise to the reference.

2. W.P. No. 58906/2013 is filed by the plaintiffs in O.S. No. 499/2010, a suit instituted on 02.12.2010 before the Principal Civil Judge (Jr. Dn.), Chitradurga for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property. The plaintiffs also sought interim order of temporary injunction by filing an application under Order XXXIX, Rules 1 and 2 of CPC but, the Court passed an ex parte order on 3.12.2010 to maintain status-quo, till appearance of the defendants. On service of summons, the defendants appeared on 1.10.2011 and the 3rd defendant, on 9.8.2012, filed I.A. No. 11 under Order XXXIX, Rules 1 and 2 of CPC seeking an order of temporary injunction restraining the plaintiffs from disturbing his peaceful possession and enjoyment of the suit property. The learned Civil Judge by order dated 16.01.2013 dismissed I.A. No. 11 filed by the 3rd defendant under Order XXXIX, Rules 1 and 2 of CPC. Aggrieved by the same, the 3rd defendant preferred I.A. No. 12/2013 and the learned Civil Judge (Senior Division), Chitradurga, while allowing the appeal set aside the order of dismissal of I.A. No. 11 and granted an order of temporary injunction against the plaintiffs. Aggrieved by the said order the plaintiffs have filed the writ petition.

3. W.P. No. 16412/2014, is filed by the plaintiffs in O.S. No. 19/2012, a suit filed on 18.06.2012 for a declaration that they are the lawful owners in peaceful possession and enjoyment of suit properties and for a decree of permanent injunction. The plaintiffs had also maintained I.A. for temporary injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property. After service of summons, the defendants entered appearance. On 13.06.2013, the 1st defendant too filed I.A. under Order XXXIX, Rules 1 and 2 of CPC for an order of temporary injunction to restrain the plaintiffs from interfering with his peaceful possession and enjoyment of item No. 1 of the suit schedule. The trial Court after hearing the parties, while dismissing the I.A., for temporary injunction filed both by the plaintiffs and the 1st defendant, directed them to maintain status-quo in respect of the suit schedule properties till the disposal of the suit. Aggrieved by the dismissal of I.A. No. 7, the 1st defendant preferred M.A. 16/2013 before the District Court, Chitradurga. The Principal District and Sessions Judge, Chitradurga by order dated 24.01.2014, allowed the appeal, set aside the order of the trial Court and granted temporary injunction restraining the plaintiffs from interfering with the 1st defendant’s peaceful possession and enjoyment of 1st item of the suit schedule, by allowing I.A. No. 7. Aggrieved by the same the plaintiffs have preferred the writ petition.

4. The parties are referred to as per their original rank before the trial Court for the sake of convenience.

5. Learned Counsel for the plaintiffs submitted that Section 94 of CPC r/w Order XXXIX, Rules 1 and 2 of CPC confers power on the Civil Court to grant an order of temporary injunction. While the defendant in a suit is conferred with right to seek temporary injunction in a case falling under Clause (a) of Order XXXIX, Rule 1 of CPC, (sic), such right is conferred on him in the cases falling under Clause (b) and (c) thereof. The Civil Court no doubt, has inherent powers to pass such orders as may be necessary to meet the ends of justice or to prevent the abuse of process of Court, but the same cannot be exercised when a case is covered by specific provisions of CPC. In the case on hand the defendant’s stand is covered under Order XXXIX, Rule 1(c) where no right is conferred on him to a relief of temporary injunction and therefore the Court could not have granted the said relief in exercise of its inherent powers. The Appellate Court has committed a serious error in granting an order of injunction in favour of the 1st defendant in O.S. 19/12 while allowing M.A. 16/2013.

6. Per contra, learned Counsel for the defendants supported the order passed by the Appellate Court by arguing that when the case of the defendant does not fall under Order XXXIX Rule 1(c) of CPC and the circumstances call for exercise of inherent powers, the Court could exercise the same to grant the relief and the Appellate Court has rightly granted temporary injunction in favour of the 1st defendant as prayed.

7. For answering the question referred to this Bench it is necessary to refer to the relevant statutory provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’).

8. Section 94 under Part-VI of the Code dealing with supplementary proceedings, sets out the nature of order that a Court may pass in order to prevent justice being defeated and it reads as under:

“Section 94. Supplemental proceedings.–In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed–

(a) issue warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court of order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.”

9. Clause (c) of Section 94 of the Code states that a Court may grant a temporary injunction there under, only “if it is so prescribed”. Section 2(16) of the Code defines the word “Prescribed” to mean “Prescribed by the Rules”. Therefore temporary injunction may be granted under Section 94(c) of the Code only if a case satisfies the requirements of the Rules 1 and 2 of Order XXXIX of the Code and not otherwise. Therefore, when a matter comes before the Court, it has to examine the facts and ascertain whether the conditions of Section 94 r/w Order XXXIX, Rules 1 and 2 of the Code are satisfied and only thereafter grant appropriate relief.

10. The relevant rule relating to grant of temporary injunction is also culled out for easy reference and it may be pertinent to point out at this juncture itself that clause (c) Rule 1 of Order XXXIX of the Code was inserted by Act No. 104/1976 w.e.f. 01.02.1977.

“1. Cases in which temporary injunction may be granted.–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

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(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 by order 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.

(Underlining by us)

11. A careful reading of the aforesaid provision discloses that the Court is empowered to grant three types of orders under three different and distinct situations. Firstly when the property in dispute is in danger of being wasted, damaged or alienated or wrongfully sold in execution of a decree, temporary injunction to prevent the same can be granted. The second situation arises when the disputed property is under the threat of being removed or disposed of by the defendant with the intention of defrauding his creditors who include the plaintiff also. The third situation is when the defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in respect of disputed property.

12. Clause (a) of Order XXXIX, Rule 1 CPC provides that where in any suit it is proved by affidavit or otherwise, that any property in dispute in a suit is in danger or being wasted, damaged or alienated “by any party” to the suit, or wrongfully sold in execution of a decree, the Court may by order 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. The reason is obvious. After institution of the suit, the plaintiff may act detrimental to the interest of the defendant in the subject matter of the suit by allowing it to be wasted or damaged or alienated and in such an event, the defendant can take recourse to making application under Order XXXIX, Rule 1(a) CPC.

13. What Clause (b) of Order XXXIX, Rule 1 of CPC envisages is that a plaintiff can seek temporary injunction when there is a threat by the defendant to dispose of the property with a view to render the decree that may be passed in the suit useless or infructuous. Similarly, under Clause (c) of Order XXXIX, Rule 1 CPC whenever 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 restrain dispossession of the plaintiff until the disposal of the suit or until further orders.

14. The Legislature has consciously used the words “any party to the suit” in Rule 1(a) of Order XXXIX CPC but the same is conspicuously missing in Clauses (b) and (c). However, the words “the defendant threatens” appearing in Clauses (b) and (c) of Rule 1 of Order XXXIX CPC make it clear that the Court can grant an order of temporary injunction only in favour of the plaintiff because the Legislature has expressly not included the words “plaintiff threatens” and also not used the words “any party to the suit” in these clauses.

15. In fact, this Court had an occasion to consider the scope of Clauses (a), (b) and (c) of Order XXXIX, Rule 1 CPC in the case of Veerabhadrappa vs. Mayappa reported in MANU/KA/0291/1992 : ILR 1993 Kar. 161 has pointed out the distinction between them in the following words:

“These provisions make it abundantly clear that it is only under sub-clause (a) of Order 39, Rule 1 CPC that any party to the suit could be restrained by means of an order of temporary injunction, which clearly presupposes that either the plaintiff or the defendant could file the application against the other party under this particular sub-clause. The other two sub-clauses viz., (b) and (c) of Order 39, Rule 1 CPC as also Order 39, Rule 2 CPC enable the Court to grant injunction against the defendant restraining him from committing the several acts mentioned therein. The word ‘any party’ occurring in sub-rule (a) of Rule 1 does not find a place in these Rules. Therefore it is clear that it is only the plaintiff that could seek redress under these Rules against the defendant. Having regard to the plain language of these Rules, by no means could it be contended that defendant is entitled to obtain an order of injunction against the plaintiff under these very sub-rules. A faint attempt was made by the learned Advocate for respondent by relying upon the observations made by the Supreme Court in the Decision reported in Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal (MANU/SC/0056/1961 : AIR 1962 SC 527), wherein it has been mentioned that there is nothing in Order 39 Rules 1 and 2 which provides specifically that a temporary injunction is not to be issued in cases which are not mentioned in those Rules. This observation of the Supreme Court has to be read in the context of the earlier and later observations made therein wherein their Lordships have discussed the aspect that the Court has always got inherent powers to grant injunction under Section 151 CPC. It is in that context that in Paragraph 19 it has been stated that the particular Rules do not provide that no injunction should be issued in cases which are not mentioned therein. By these observations it cannot be said that the Court could still grant injunction under those very Rules themselves in respect of cases which do not fall under the said Rules. Therefore, the contention that even under these sub-rules viz., sub-rule (b) and (c) of Rule 1 or 2 of Order 39 CPC a defendant can obtain an order of injunction against the plaintiff cannot be accepted. It is not the case of the defendant that the case put forward by him fits into sub-rule (a) of Order 39, Rule 1 CPC wherein any party could be restrained by grant of an injunction”.

16. Bombay High Court too in the case of Nanasaheb vs. Dattu & Others reported in MANU/MH/0007/1992 : AIR 1992 Bom. 24 has expressed similar views as under:

“……….Provisions of Rule 1(a), 1(b) and 1(c) are intended to meet different situations and different purposes. Rule 1(a) speaks about the injunctions when the property is in danger of waste, damage or alienation. Whereas Rule 1(b) speaks about threatening removal or disposal from the property with a view to defraud his creditors and Rule 1(c) speaks about threatening dispossession or any other injury in relation to the property. Prayer for injunction restraining other party from obstructing enjoyment of well water would be covered by Rule 1(c) of Order 39.

Mischief to be prevented by the temporary injunction in respect of situations under Clauses (b) and (c) of Rule 1 and under Rule 2 should be that of the defendant. However, mischief to be prevented by the temporary injunction in situations under Clause (a) of Rule 1 can be from either of the parties. A clear distinction appears to have been deliberately made in framing this rule by authorizing in respect of the situations listed in Clause (a) of Rule 1 on one hand and Clauses (b) and (c) of Rule 1 and Rule 2 on the other hand. In respect of situations covered by the first clause, injunctions can be granted in favour of either of the parties whereas in respect of situations covered by other clauses injunction can be granted only in favour of the plaintiff and not in favour of the defendant……”

17. From the above, it is clear that in a suit filed by the plaintiff, it is open to the defendant to file an application only under Order XXXIX, Rule 1(a) of CPC seeking temporary injunction and the Court on being satisfied that a case is made out for grant of such injunction, can grant the same in its discretion. But, the defendant cannot maintain an application under Order XXXIX, Rule 1(b) and (c) of CPC at all.

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SCOPE OF SECTION 151 CPC

18. The next point would be, when the defendant is not entitled to the relief of injunction against the plaintiff in a case falling under Order XXXIX, Rule 1 clause (c) CPC whether the Court could grant the relief in exercise of its inherent jurisdiction?

19. The defendants have placed reliance upon the judgments of the Apex Court in support of the contention that in the absence of specific provision the Court can exercise its power under Section 151 of the Code and grant relief to the defendant or any party to the suit. For better appreciation of this contention it is necessary consider the law laid down by the Apex Court in a chronological order and before that, it is useful to refer to Section 151 CPC which reads as under:

“Sec. 151. Saving of inherent powers of Court.–Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

20. In para 8 of the judgment in Padam Sen and Another vs. State of Uttar Pradesh (MANU/SC/0065/1960 : AIR 1961 SC 218) the Apex Court has held as under:

“…….The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inhere power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code”.

21. While making it clear that though the Court has inherent power to make such orders, as may be necessary for the ends of justice or to prevent abuse of the process of the Court, the Supreme Court has placed three restrictions on exercise of inherent power by the Court namely,

(1) Firstly, the inherent power should not be exercised in any way in conflict with what has been expressly provided in the Code;

(2) Secondly, the power cannot be exercised against the intention of the legislature; and

(3) Thirdly, it shall not be exercised in a manner, which would be contrary to or different from the procedure expressly provided in the Code.

22. Subsequently, the Apex Court in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raj Seth Hiralal reported in MANU/SC/0056/1961 : AIR 1962 SC 527 after taking note of the divergent views by various High Courts in the country has held as under:

“18. There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code. The other view is that a Court can issue an interim injunction under circumstances which are not covered by Order XXXIX of the Code, of the Court is of opinion that the interests of justice require the issue of such interim injunction. We are of opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of O. XXXIX, Code of Civil Procedure. There is no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code. It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression ‘if it is so prescribed’ is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court’s exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power”.

19. There is nothing in Order XXXIX, rules 1 and 2, which provide specifically that a temporary injunction is not to be issued in cases which are not mentioned in those rules. The rules only provide that in circumstances mentioned in them the Court may grant a temporary injunction”.

23. Further in para 21, the Apex Court also made reference to Padam Sen’s case after referring to the observations which is as below:

“These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in S. 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice”.

24. In this context, it is useful to refer to the observations of the Supreme Court in the case of The Commissioner of Sales Tax, Uttar Pradesh, Lucknow vs. M/s. Parson Tools and Plants, Kanpur reported in MANU/SC/0449/1975 : AIR 1975 SC 1039 wherein at para 18 it is held as under:

“We have said enough and we may say it again that where the Legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the Court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver….”

25. Again the Apex Court in the case of Cotton Corporation of India Limited vs. United Industrial Bank Limited and others, MANU/SC/0375/1983 : AIR 1983 SC 1272 dealing with the power of the Court to grant temporary injunction, inspite of prohibition under Section 41(b) of the Specific Relief Act and after referring to the judgments of the Apex Court in the case of Manohar Lal Chopra and Padam Sen (supra), has held as under:

“……..In view of the majority decision, it must be conceded that the Court can in appropriate cases grant temporary injunction in exercise of its inherent power in cases not covered by Order 39 C.P.C. But while exercising this inherent power, the Court should not overlook the statutory provision which clearly indicates that injunction to restrain initiation of proceeding cannot be granted. Section 41(b) is one such provision. And it must be remembered that inherent power of the Court cannot be invoked to nullify or stultify a statutory provision……..”

26. Therefore, what follows from the above is that, though the provisions of the Code are not exhaustive, the Court can grant an order of temporary injunction in its inherent jurisdiction, even though the matter does not fall under Order XXXIX of the Code. It is true that Order XXXIX Rules 1 and 2 do not provide specifically that a temporary injunction shall not be issued in cases, not mentioned in those Rules. But, once the Legislature prescribes the cases in which an order of temporary injunction is to be granted and the cases in which such an injunction cannot be granted, the Court should respect the legislative intent, as reflected by the statutory provisions. The legislative intent may be either express or may be clear by necessary implication. As long as the intention of the Legislature could be gathered from the provisions and it is clear, inherent power should not be exercised, then to nullify or stultify such a provision.

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27. The instant case would fall under Order XXXIX, Rule 1 of CPC and therefore the Court cannot grant temporary injunction by exercising its inherent powers. If this were to be a case not covered under Order XXXIX, Rule 1 and 2 CPC then the Court could in exercise of inherent jurisdiction, grant an order of temporary injunction.

CONCEPT OF SAME CAUSE OF ACTION

28. Realizing the above difficulties and to overcome to the same, it was contended that the defendant can maintain an application for injunction, if the relief sought is incidental to the plaintiffs cause of action or arises out of it. In support of the same judgment of this Court in the case of Suganda Bai vs. Sulu Bai & Others MANU/KA/0088/1975 : (1975) 1 KLJ 96, is relied upon. This was a case where reliance was placed on two English authorities to hold that:

“Now the principles, under which a defendant may seek and obtain an order of temporary injunction against the plaintiff are stated in Collison vs. Warren, where Buckley, J., after referring to a number of earlier decisions of the English Courts, quoted Lopes, L.J., in (1824) 2 Ch. 545:

“The question is this – whether the defendant can move for an injunction against the plaintiff without filing a counter-claim or issuing a writ in a cross-action. In my opinion, he can in some cases, but only in cases where the defendant’s claim to relief arises out of the plaintiffs cause of action, or is incidental to it”.

29. At the outset, the provisions of Order XXXIX, Rule 1 and 2 CPC are not interpreted in Suganda Bai’s case. Secondly, Order XXXIX, Rule 1(c) was not in the statute book as on the date of that judgment and it came to be incorporated w.e.f. 01.02.1977 by Act No. 104/1976. Thirdly, this Court while deciding Suganda Bai’s case relied on the judgments of the English Court, which were based on common law whereas, in the case on hand we are called upon to interpret a statutory provision contained in the Code of Civil Procedure, a codified law. Nowhere in Order XXXIX, Rule 1 and 2 of CPC are the words “cause of action” referred to. Therefore, it would be contrary to the statutory provision contained in the Code of Civil Procedure to hold that the defendant can maintain an application for injunction on the same cause of action, on which the plaintiff has come to the Court.

30. However, on an earlier occasion when it was found that the judgments on the point do not lay down the correct law, a reference was made to the Division Bench in the case of Ramaiah vs. Gowdappa reported in MANU/KA/0178/1988 : ILR 1989 Kar. 962 on the following questions:

“1. Whether the defendants can file an application seeking temporary injunction against the plaintiffs in a suit filed by the plaintiffs? And

2. Whether the decision of this Court in Suganda Bai vs. Sulu Bai & Others (1975 (1) KLJ 96) places any restriction in the matter of grant of temporary injunction in favour of defendants in a suit filed by the plaintiffs?”

31. The Division Bench, relying on the judgment of the Apex Court in Manoharlal Chopra’s case (cited supra), held that the defendant can maintain an application under Order XXXIX, Rule 1 and 2 for an injunction against the plaintiff by making a distinction between a suit for partition and separate possession and a suit for bare injunction and the judgment in Suganda Bai’s case was held to be in conformity with the view taken in Manoharlal Chopra’s case. In both the judgments, the difference in the language employed in Rule 1(a) and Rules 1(b) and (c) is not noticed. Therefore, we are of the view that, when the statute prescribes a particular procedure set out in a provision in which the word “cause of action” is conspicuously missing, it is not possible to hold that a defendant can maintain an application for injunction if it is based on the same cause of action as that of the plaintiff or incidental thereto and further that, such an application cannot be maintained if the cause of action for the defendant arises subsequent to the cause of action the plaintiff has pleaded. We do not find any support to such a proposition of law as is laid down in the above two judgments and therefore, we over rule the same.

32. The correct legal position as is clear from the statutory provision is as under:

(i) Both the plaintiff and the defendant can maintain an application under Order XXXIX, Rule 1(a) of the Code for the reliefs set out in the said provision;

(ii) Insofar as relief under Order XXXIX, Rule 1(b) and (c) is concerned, such a relief is available only to the plaintiff and the defendant cannot maintain an application for the said reliefs in a suit filed by the plaintiff irrespective of the fact that his right to such relief arises either from the same cause of action or a cause of action that arises subsequent to filing of the suit.

However it is open to the defendant to maintain a separate suit against the plaintiff and seek relief provided under Order 39, Rule 1(b) and (c) of the Code.

(iii) In cases which do not fall under Order XXXIX, Rule 1 of the Code, the Court has the inherent jurisdiction to grant the relief of injunction in its discretion, if it is satisfied that such an order is necessary to meet the ends of justice or to prevent abuse of process of the Court and nothing in this Code shall limit or otherwise affect such inherent power of the Court.

Accordingly, we answer the question of law referred to for our consideration in the negative.

Office is directed to place these writ petitions before the learned Single Judge for disposal in accordance with the judgment rendered by us in these cases.

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