(1) Where in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,
(a) It appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or
(b) The suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, [not exceeding five thousand rupees] as it deems a reasonable compensation to the defendant for the expense or injury (including injury to reputation) caused to him: Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniary jurisdiction.
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ADVERTISEMENTS:
(2) An order determining such application shall bar any suit for compensation in respect of such arrest, attachment or injunction.
Where attachment before judgment is obtained on insufficient grounds, the court can award general damages for mental injury. The word “expense or injury” in S. 95, C.P.C. would cover damages to credit and reputation of the defendant.
Where the order for injunction was obtained on the basis of incorrect representation, it must be held that the injunction was applied for on insufficient grounds, and general damages can be awarded on account of injury to prestige and humiliation and special damage need not be proved.
ADVERTISEMENTS:
An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction.
It may also be mentioned that if the defendant wants to claim a larger sum by way of compensation than is permissible under S. 95, he has to bring a regular suit against the plaintiff and not take recourse to the proceedings for compensation as provided in this section.
Appeal:
An appeal lies from an order granting compensation but not a second appeal. An order, however, passed by a Court of small causes under S. 95 is not appealable.
ADVERTISEMENTS:
Interlocutory Orders:
Interlocutory orders are orders passed by a court during the pendency of a suit, which do not determine the substantive rights of the parties in respect of the subject-matter of the suit or terminate the suit, but relate to the protection or otherwise of the subject-matter of the suit. They are also passed in the cases of execution proceedings after the judgment has been obtained.
In short, they relate to matters of procedure as they arise during the trial of the suit or in the course of execution proceedings. They are passed to assist the parties in the prosecution of their case, or for the purpose of protecting the subject-matter of the suit or for ensuring the determination of the merits of the case.
Rules 6 to 10 of Order XXXIX mention certain interlocutory orders. The court has the power to order interim sale of movable property, which is the subject-matter of the suit, or is attached before judgment in such suit, which is subject to speedy and natural decay. [Order XXXIX, Rule 6].
It can order for the detention, preservation or inspection of any property which is the subject-matter of such suit; it can authorise any person for the aforesaid purposes to enter upon or into any land or building in the possession of any other party to such suit, or authorise any samples to be taken or observation to be made or experiment to be tried for obtaining full information or evidence. (Order XXXIX, Rule 7). An application by the plaintiff for an order under Rule 6 or 7 may be made at any time after institution of the suit.
An application by the defendant for a like order may be made at any time after appearance. Before making an order under Rule 6 and Rule 7 on an application made for the purpose, the court shall except where it appears that the object of making such order would be defeated by the delay, direct notice thereof to, be given to the opposite party. (Order XXXIX, Rule 8).
When the land in suit is liable to Government revenue or is a tenure liable to sale and the party in possession neglects to pay the revenue or rent, the court may order any other party to the suit in case of an order for sale of the land to be put in immediate possession of the property. (Order XXXIX, Rule 9).
Where the subject-matter of the suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court, or delivered to such last named party. (Order XXXIX, Rule 10). Orders directing the appointment of a receiver also fall within the meaning of interlocutory orders.
The Supreme Court observed in Union of India v. Swadeshi Cotton Mills Co. Ltd., “We should have hesitated to interfere with an interlocutory order following the usual practice in the Court. But, where repercussions are incalculable and the basis of a direction, though interlocutory, is obscure, the ends of justice dominate and we may interfere if public interest so dictates.”
According to the considered view of the Calcutta High Court after amendment was introduced in 1976 with regard to Order XXXIX, Rule 8 of the Code of Civil Procedure, no ex parte order is capable of being passed without substantive compliance of clause (3) of Order XXXIX, Rule 9 of the Code of Civil Procedure.
The ex parte order passed under Order XXXIX, Rule 7 being a non-speaking order, is vitiated by patent jurisdictional infirmity which can be set aside in revision. The order impugned is absolutely vitiated by the mischief of jurisdictional infirmity and the learned Munsif did not pass the order in accordance with the present provision of Order XXXIX, Rule 8 of the Code of Civil Procedure after the same was introduced by amendment.
Rule 11 (1), C.P.C. lays down that failure to comply with the Court’s order leads to a specified consequence and on fair construction thereof, it is clear that if a party commits default in complying Court’s order or contravenes it then the consequence as provided therein has to follow. The whole purpose of Rule 11 (1) would be frustrated if the word ‘may’ would receive construction to mean ‘discretionary’ or ‘directory’. The provision is mandatory in nature.
Impositions of penalty for flouting order of Court:
It was within discretion of Court and finding by Court as flouting was being deliberate or wilful was necessary. Writ Petition by complainant did not amount to stay of proceedings in lower Court. As the complainant had not participated in proceedings in lower Court inspite of opportunity, hence, he could not complain of opportunity of hearing.