PANJI GRIHA NIRMAN PVT. LTD. AND ORS vs AYAN SADHUKHAN AND ORS

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
BEFORE:
THE HON’BLE JUSTICE OM NARAYAN RAI
C.O. 1515 OF 2026
PANJI GRIHA NIRMAN PRIVATE LIMITED & OTHERS …PETITIONERS
-VERSUS-
AYAN SADHUKHAN & OTHERS …OPPOSITE PARTIES
For the Petitioners : Mr. Soumendra Nath Mookherjee, Ld. Sr. Adv.,
Mr. Jishnu Chowdhury, Ld. Sr. Adv.
Mr. Soumyadeb Sinha, Adv.
Mr. Yash Singhi, Adv.
Ms. Sanskriti Agarwal, Adv.
Ms. Abhismita Goswami, Adv.
Ms. Vidhi Birmecha, Adv.
Mr. Debjit Mukherjee, Adv.
Mr. Snehashish Sen, Adv.
For the Opposite Parties : Mr. Srijib Chakraborty, Adv.
Mr. Tanmoy Mukherjee, Adv.
Mr. Chandra Nath Sarkar, Adv.
Heard on : 10.08.2026
Judgment on : 07.09.2026
OM NARAYAN RAI, J.:-
1. This revisional application takes exception to an order dated April 23, 2026 passed
st
by the learned Civil Judge (Senior Division), 1 Court at Baruipur in Title Suit No.
105 of 2026 whereby the learned Court has dismissed the petitioner no. 1’s
application for recall/vacation of the ad interim order of injunction passed on
February 21, 2026.
FACTUAL MATRIX:
2. Shorn of meticulous details, the facts relevant for adjudication of the present
revisional application, as may be gathered from the material on record, are as
follows:-
Page 1 of 16

a. The opposite party nos. 1 and 2 have instituted Title Suit No.105 of 2026 before
st
the learned Civil Judge (Senior Division), 1 Court at Baruipur, District – South
24 Parganas praying inter alia for decrees for declaration and partition.
b. In the said suit, the opposite parties filed an application for injunction under
1
Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 and pressed the
same for ex-parte ad interim reliefs on February 21, 2026.

c. The learned Trial Court found that there was a caveat note on the file by the
Sheristadar sans his signature and that the caveat pertained to a different Dag
Number not related to the suit property. The learned Trial Court therefore
proceeded to consider the application for injunction for ex-parte ad interim order
and directed the parties to maintain status quo in respect of the suit properties
as regards the nature, character and possession thereof as on that day.
d. Thereafter, the petitioner no.1 filed an application praying for recalling and/or
vacating the ex-parte ad interim order directing the parties to maintain status
quo while asserting that the Sheristadar of the Court had committed a mistake
by noting an entirely different caveat (bearing No.1885 of 2025) filed by another
person in respect of LR Dag No. 1365 and the caveat registered by the
petitioners were missed. It was contended that in view of such lapse the
petitioners were deprived of his statutory right of hearing before passing of the
said interim order.
e. When the said application was pressed, the learned Trial Court posted to the
same for hearing on a later date.
f. Since hearing of the petitioner’s application for recalling and/or vacating the
said ex-parte ad interim order was postponed by the learned Trial Court
resulting in continuance of the said ex parte ad interim order, the petitioners
approached this Court by filing C.O.953 of 2026 praying for setting aside of the
ex parte ad interim order dated February 21, 2026. The said revisional
application was disposed of by this Court observing as follows:-
“ 10 . That being so the application for recalling of the order dated February 27, 2026,
that has already been filed before the learned Trial Court must be heard forthwith.
Accordingly the learned Trial Court is requested to take up the application for recalling
(that had been filed before it on February 27, 2026) peremptorily.
11 . The petitioners shall be entitled to file an application for putting up of the records
and to pray for preponment of the date fixed earlier, upon notice to the learned Advocates
appearing for the opposite parties.
12 . The learned Trial Court shall take up such application and decide the same in the
light of the judgment of the Hon’ble Division Bench in the case of Sukumar Roy (supra) .

1
Hereafter “the Code”
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13 . It is noticed that the learned Trial Court has while passing the order of injunction
dealt with the aspect of lodgment of caveat and has found that caveat no. 1885 of 2025
had been noted by the Sherestadar on the file of the Court. It appears that there was no
note as regards caveat no. 1897 of 2025 that is alleged to have been filed by the
petitioners herein.
14 . The learned Trial Court has noted that caveat no. 1885 of 2025, note whereof was
made by the Sherestadar of the Court 6 pertained to a different property to which the suit
does not relate.
15 . In case, the learned Trial Court is satisfied that grounds have been made out for
recalling of the order and caveat had indeed been lodged in accordance with law, then
the learned Trial Court shall take up the application for injunction and hear the same at
least for examining the question of passing ad-interim order in the presence of the
defendants to the suit i.e. the petitioners herein immediately.
16 . The learned Trial Court shall ensure that the entire exercise is concluded as
expeditiously as possible and preferably within a period of ten days from the date of
filing of the application for putting up of the records.
17 . In case the Court i.e., the Court of the learned Civil Judge (Senior Division),
Baruipur, 24-Parganas (South) is vacant, the learned Judge-in-Charge of the said Court
shall take up the matter and decide the matters by passing appropriate orders in terms of
this order.”
g. The petitioners, thereafter, filed an application before the learned Trial Court and
the record was put up before the learned Trial Court on April 06, 2026. The
matter was thereafter heard and the impugned order was passed on April 23,
2026 thereby rejecting the petitioners’ application for recalling and/or vacating
the said ex-parte ad interim order and extending the initial ad interim order till
the next date.

h. Feeling aggrieved thereby, the petitioners have approached this Court again by
way of the present revisional application.
3. Although a preliminary objection as to maintainability was raised by the opposite
parties, the parties were invited to argue on the preliminary objection as well as the
merits of the mater. Parties were accordingly heard, the hearing was concluded and
judgment was reserved on August 03, 2026. On the very next day i.e., on August
04, 2026, the matter was mentioned by Mr. Chowdhury, learned Senior Advocate
and it was submitted that he had missed to argue one point and he wished to rely
on a judgment in support thereof. Since the matter had been freshly reserved for
judgment, considering his request the matter was directed to be listed under the
heading “To Be Mentioned” on August 05, 2026. On the said day, the matter was
fixed for hearing again on August 10, 2026. The matter was accordingly heard on
August 10, 2026 and hearing was concluded.


Page 3 of 16

SUBMISSIONS ON BEHALF OF THE PETITIONERS:
4. A brief summary of the submissions made on behalf of the petitioners, is as
follows:-
a. The learned Trial Court has committed a serious error in passing the order
impugned by holding that the caveat lodged by the petitioners was invalid.
b. Relying on a judgment of the Hon’ble Division Bench of this Hon’ble Court in the
2
case of Sukumar Roy & Others vs. Pratul Kumar Roy , it was submitted that
once it is pointed out to the Court that a lodged caveat has escaped its notice,
then the only recourse left is to recall the order forthwith and rehear the matter
on contest. Another judgment rendered by a Co-ordinate Bench of this Court in
3
the case of Chanchal Bhattacharjee vs. Srikumar Bhattacharjee was also
cited for the same proposition.
c. It was next submitted that the learned Trial Court has misinterpreted the
provisions of Section 148A of the Code and held that a caveat must be
accompanied by proof of delivery. It was submitted that lodging a caveat would
be an impossibility of sorts if the same is mandatorily required to be filed with a
proof of delivery.
d. Rule 40A of the Civil Rules and Orders of the High Court, Calcutta was pressed
into service to demonstrate that a caveat can be lodged without proof of delivery.
SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
5. A brief summary of the submissions made on behalf of the opposite parties, is as
follows:-
a. The present revisional application is not maintainable inasmuch as it is directed
against a combined order passed by the learned Trial Court thereby not only
refusing to vacate the order of injunction granted earlier but also extending the
initial order of injunction.
b. The petitioners’ application is essentially one under Order 39 Rule 4 of the Code
and therefore any order passed on that application would be appealable under
Order 43 Rule 1(r) of the Code. Similarly, the order continuing/extending the
initial order of injunction would also be appealable under the same provision.
c. The application for vacating an order of injunction on the ground of non-service
of notice despite lodgement of caveat would satisfy the aspect of undue hardship
under the second proviso to Order 39 Rule 4 of the Code. Paragraph 11 of the
recalling application was placed to show that the petitioners have sought

2
MANU/WB/0430/1985
3
2014 (4) CHN (CAL) 263
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vacation of the order of injunction on the ground that continuance of the
injunction order was causing prejudice to the petitioners and was adversely
affecting its lawful commercial activities in relation to the suit property.
d. The petitioners’ case is not only based on procedural irregularity but is one
which also seeks substantive relief of vacation of injunction on the ground that
the petitioners have been prejudiced by the continuance of an order of
injunction.
e. A judgment of the Hon’ble Supreme Court in the case of A. Venkatasubbiah
4
Naidu vs. S. Chellappan & Others was cited to contend that once the
petitioners’ application for vacating the order of injunction was dealt with and
decided on merits the only remedy available was an appeal under Order 43 Rule
1 of the Code and order passed in such cases should not be ordinarily tinkered
with under Article 227 of the Constitution of India. It was stressed that in that
case the Hon’ble Supreme Court re-imposed the order of status quo that had
been vacated by the High Court in exercise of its powers under Article 227 of the
Constitution of India.
5
f. Gayatri Chetna Foundation vs. Manoj Joshi & Others , a judgment rendered
by an Hon’ble Division Bench of this Court was relied on to demonstrate that an
order of injunction passed by a Court while overlooking a caveat that had been
lodged was interfered with in appeal by the Hon’ble Division Bench in exercise of
powers under Order 43 Rule 1(r) of the Code.
g. A judgment of a Co-ordinate Bench of this Court in the case of J.M. Financial
Asset Reconstruction Company Limited vs. Abhinandan Holdings Private
6
Limited & Another was placed to contend that in a similar situation, this
Court has refused to entertain an application under Article 227 of the
Constitution of India. It was asserted that the said judgment was rendered
considering the mandate of the Hon’ble Supreme Court in the case of
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai vs. Tuticorin
7
Educational Society & Others , that in cases where proceedings before the
Civil Courts are involved, availability of alternative remedy under the Code may
have to be construed as a near total bar.
h. It cannot be said that the learned Trial Court lacks inherent jurisdiction to pass
any ex-parte order in cases where caveat has been lodged if the case involves

4
(2000) 7 SCC 695
5
2025 SCC OnLine Cal 3668
6
C.O. 3376 of 2023, decided on August 02, 2024
7
(2019) 9 SCC 538
Page 5 of 16

extreme urgency and time spent in issuance of notice would leave the plaintiff
remediless or render the prayer for injunction infructuous. An example of a case
for demolition was cited to assert that if an order of demolition is to be carried
out the very next day, the prayer for ex-parte injunction would still be granted
despite lodgement of caveat.
i. Reserve Bank of India Employees Association & Another vs. The Reserve
8
Bank of India & Others rendered by the Hon’ble High Court of Andhra
Pradesh was cited to assert that the order passed by a Court without giving
notice to a caveator would not be a nullity.
j. Another judgment of the Hon’ble Gauhati High Court in the case of Airport
9
Authority of India vs. M/s. Paradise Hotel and Restaurant was pressed into
service to contend that an application under Article 227 of the Constitution of
India cannot be entertained against any order of injunction passed without
service of notice on the defendants in the suit.
k. The learned Trial Court has passed the order on interpretation of the amended
provisions of Section 148A of the Code and it is a plausible interpretation.
l. It was submitted that in any case the order cannot be said to be either patently
perverse, nor can it be said to have been passed by a Court lacking inherent
jurisdiction.
m. The appellate remedy would be more efficacious for the petitioners in the present
case, inasmuch as this Court, exercising supervisory jurisdiction under Article
227 of the Constitution of India would not interfere with an order to correct a
mere error of law or fact, even if it is assumed that the order is otherwise
erroneous.
REJOINDER SUBMISSIONS ON BEHALF OF THE PETITIONERS:

6. The petitioners re-joined with the following submissions:-
a. The power of recall is inherent in every Court and it was that power of the Court
which was invoked by the petitioners in the case at hand.
b. Gayatri Chetna Foundation (supra) was relied on to assert that once it is
demonstrated that it is mandatory for the Court to direct prior service of notice
on the caveator before passing any order and an interim order passed without
such direction of prior service would be without jurisdiction. Since the order
itself is without jurisdiction, the application under Article 227 is maintainable.

8
AIR 1981 ANDHRA PRADESH 246
9
AIR 2002 GAUHATI 146
Page 6 of 16

c. A judgment of the Hon’ble Gauhati High Court in the case of M/s.
Contemporary Target Private Limited & Others vs. M/s. M.B. Enterprises &
10
Others was relied on to contend that a High Court can exercise jurisdiction
under Article 227 of the Constitution of India in cases where there is a violation
of fundamental basic principles of justice and fairplay or where a patent or
flagrant error in procedure of law has crept in or where the order passed results
in manifest injustice despite existence of alternative remedy. It was asserted that
the judgment in the case of Reserve Bank of India Employees Association &
Another (supra) was distinguished by the Hon’ble Gauhati High Court and it
was held that an order passed without notice to the caveator will be without
jurisdiction.
d. The petitioners had invited the learned Trial Court to exercise its power of
processual review (or procedural review) and the learned Trial Court was not
invited to assess the worth of the order of injunction on merits. The prayer made
in the application for recall makes it clear that recall of the order had been
sought for on the ground that the same had been passed in breach of the
mandatory duty of the Court under Section 148A of the Code.
e. Grindlays Bank Limited vs. Central Government Industrial Tribunal &
11
Others was pressed into service to assert that the expression “review” is used
in two distinct senses and the power of procedural review is inherent or implied
in a Court or Tribunal to set aside a palpably erroneous order passed under a
misapprehension by it.
f. Kapra Mazdoor Ekta Union vs. Birla Cotton Spinning and Weaving Mills
12
Limited & Another was cited to demonstrate that procedural review belongs
to a different category of power which is invoked by Court when the Court finds
that it has committed a procedural illegality which goes to the root of the matter.
g. Section 148A of the Code casts dual obligations - one upon the caveator and the
other upon the Court. In the case at hand, there has been a failure of duty cast
on Court.
h. Provisions of Order 39 Rule 4 of the Code are invocable in cases where a person
is dissatisfied with the order on merits and not for failure of Court to discharge
its duty.
i. A judgment of the Hon’ble Supreme Court in the case of Mahadev Govind
Gharge & Others vs. Special Land Acquisition Officer, Upper Krishna

10
(1994) 1 Gauhati Law Reports 259
11
1980 (Supp) SCC 420
12
(2005) 13 SCC 777
Page 7 of 16

13
Project, Jamkhandi, Karnataka was cited to assert that in terms of Section
148A of the Code a caveator has a right to be heard mandatorily for the purposes
of passing an interlocutory order.
14
j. Veerabhadrappa vs. Mayappa - a case decided by the Hon’ble High Court at
Karnataka was cited to assert that an order of injunction passed under Section
151 of the Code cannot be challenged in appeal under Order 43 rule 1(r) of the
Code.
15
k. Rajesh Kumar Pandey & Another vs. M/s. Nilma Vinimay Private Limited
was cited to demonstrate that power under Article 227 of the Constitution of
India can be exercised by the High Court in cases where the orders of Tribunals
or Courts subordinate to it suffer from patent perversity or where there has been
gross and manifest failure of justice or principles of natural justice have been
flouted.
SURREJOINDER BY THE OPPOSITE PARTIES:
7. The opposite parties made the following submissions in response to the petitioners’
rejoinder arguments:-
a. An unreported judgment of a Co-ordinate Bench of this Court in the case of
16
Yajur Fibres Limited & Another vs. Dharmendra Tiwari & Others was
cited to assert that even if an order of injunction is passed under Section 151 of
the Code and such order touches the merits of the case, the same must be
assailed by way of an appeal under Order 43 Rule 1(r) of the Code.
b. Another unreported judgment of another coordinate Bench of this Court in the
case of Smt. Suchanda Jana nee Ghosh alias Tultuli vs. Sri Samiran
17
Chandra Ghosh & Others was cited to contend that if a subsisting interim
order is modified, the resultant order will be appealable and an application
under Article 227 of the Constitution of India would not lie.
c. Paragraph 13 of the petitioners’ recalling application was shown to argue that
the petitioners have themselves asserted their right to file a detailed affidavit in
reply to the injunction application. Such right is still available to them.
d. On a query from the Court as regards the learned Trial Court’s finding that the
caveat lodged by the petitioners was invalid, it was submitted that the order
impugned was passed keeping in view the recent amendment effected to Section

13
(2011) 6 SCC 321
14
I.L.R. 1993 KAR 161
15
C.O. 4549 of 2016, decided on December 23, 2016
16
C.O. 3262 of 2022, decided on September 18, 2023
17
C.O. 2571 of 2016, decided on July 11, 2017
Page 8 of 16

148A of the Code and the same is neither perverse nor suffers from lack of
jurisdiction. The learned Court has given its reasons for such finding and the
same are not perverse.
e. Even if it is assumed to be erroneous that would not make it vulnerable under
Article 227 of the Constitution of India and the petitioners should not be
permitted to jump a forum.
ANALYSIS & DECISION:
8. The case at hand could be dealt with, without much ado, by following the judgment
of the Hon’ble Division Bench of this Court in the case of Sukumar Roy (supra)
but since an issue as regards the maintainability of the revisional application
under Article 227 of the Constitution of India has been raised, that needs to be
addressed first.
9. The precise objection is that the impugned order has a dual character, both of
which render it appealable under Order 43 Rule 1(r) of the Code and that the
application is actually one under Order 39 Rule 4 of the Code inasmuch as the
prayers made therein, if granted, would lead to the vacation of the interim order of
injunction.
10. In such a situation, the provisions of Order 39 Rule 4 of the Code need to be
noted:-
“4. Order for injunction may be discharged, varied or set aside .— Any order for
an injunction may be discharged, or varied, or set aside by the Court, on application made
thereto by any party dissatisfied with such order:
Provided that if in an application for temporary injunction or in any affidavit supporting
such application, a party has knowingly made a false or misleading statement in relation to
a material particular and the injunction was granted without giving notice to the opposite
party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers
that it is not necessary so to do in the interests of justice:
Provided further that where an order for injunction has been passed after giving to a
party an opportunity of being heard, the order shall not be discharged, varied or set aside
on the application of that party except where such discharge, variation or setting aside has
been necessitated by a change in the circumstances, or unless the Court is satisfied that
the order has caused undue hardship to that party.”
11. The text of the main part of Order 39 Rule 4 of the Code indicates that the Court
can be approached by way of an application for discharge or variation or setting
aside of an order of injunction by “any party dissatisfied with such order” .
12. The two provisos provide for two different situations. The first proviso deals with a
situation where no notice is served upon the opposite party and the party in whose
favour the order of injunction has been passed has knowingly made a false or
misleading statement in relation to a material particular. The second proviso deals
Page 9 of 16

with a situation where both parties have been heard. In terms of the second
proviso, the Court can be approached by a party for discharging or varying or
setting aside of the order of injunction only if the same is necessitated by a change
in the circumstances or the order has caused undue hardship to that party.
13. It is true that the application filed by the petitioners sought for recall/vacation of
the order of injunction on the ground that the same had been passed in violation of
the provisions of Section 148A of the Code but that by itself would not take the
application out of the bracket of Order 39 Rule 4 of the Code.
14. The expression “dissatisfied with such order” used in the main part of Order 39
Rule 4 is broad enough to encompass all grounds on which a party could be
dissatisfied with the order of injunction. The petitioners contended that the
expression “dissatisfied with such order” would mean dissatisfaction with the order
of injunction itself and not with the faulty procedure followed by the Court in
passing the order of injunction. It was contended that failure of Court to issue
notice despite lodgement of caveat could not be made the subject matter of enquiry
under Order 39 Rule 4 of the Code. While the two provisos to Order 39 Rule 4 of
the Code lend considerable support to the assertion that the enquiry contemplated
by the said Rule is directed to the continuance, variation or setting aside of the
injunction itself, rather than to the procedural validity of the proceeding
culminating in the order granting the injunction, the main part of the Rule is wide
enough to cover all situations.
15. It is well settled that the provisos cannot be read in a manner that would whittle
down the main enactment or the main provision. The Hon’ble Supreme Court has
laid down the law on this point with absolute clarity in the case of S. Sundaram
18
Pillai & Others vs. V.R. Pattabiraman & Others in the following words:-
“ 27. The next question that arises for consideration is as to what is the scope of a
proviso and what is the ambit of an Explanation either to a proviso or to any other
statutory provision. We shall first take up the question of the nature, scope and extent of a
proviso. The well-established rule of interpretation of a proviso is that a proviso may have
three separate functions. Normally, a proviso is meant to be an exception to something
within the main enactment or to qualify something enacted therein which but for the
proviso would be within the purview of the enactment. In other words, a proviso cannot be
torn apart from the main enactment nor can it be used to nullify or set at naught the real
object of the main enactment.
*
43. We need not multiply authorities after authorities on this point because the legal
position seems to be clearly and manifestly well established. To sum up, a proviso may
serve four different purposes:

18
(1985) 1 SCC 591
Page 10 of 16

(1) qualifying or excepting certain provisions from the main enactment:
(2) it may entirely change the very concept of the intendment of the enactment by
insisting on certain mandatory conditions to be fulfilled in order to make the enactment
workable:
(3) it may be so embedded in the Act itself as to become an integral part of the
enactment and thus acquire the tenor and colour of the substantive enactment itself; and
(4) it may be used merely to act as an optional addenda to the enactment with the sole
object of explaining the real intendment of the statutory provision.”
(Emphasis supplied)
16. Keeping the above legal position in mind it cannot be said that Order 39 Rule 4 of
the Code would not encompass recall of an order of injunction on the ground of
procedural fallacies.
17. The judgments of the Hon’ble Supreme Court in the case of Grindlays Bank
Limited (supra) and Kapra Mazdoor Ekta Union (supra) where the Hon’ble
Supreme Court distinguished between the powers of procedural review and review
on merits cannot help the petitioners in the case at hand. In the said cases, the
Hon’ble Supreme Court clarified that the power of procedural review inheres in
every Court or Tribunal and is exercisable ex debito justiciae , however, the said
cases may not be applicable to the case at hand inasmuch as the same pertain to
Industrial Tribunals which did not have a provision as widely worded as Order 39
Rule 4 of the Code. In such context the following observations in the case of Kapra
Mazdoor Ekta Union (supra) which relied on Grindlays Bank Limited (supra)
may be noted:-
“ 19. Applying these principles it is apparent that where a court or quasi-judicial
authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order
can be reviewed on merit only if the court or the quasi-judicial authority is vested with
power of review by express provision or by necessary implication. The procedural review
belongs to a different category. In such a review, the court or quasi-judicial authority
having jurisdiction to adjudicate proceeds to do so, but in doing so commits (sic ascertains
whether it has committed) a procedural illegality which goes to the root of the matter and
invalidates the proceeding itself, and consequently the order passed therein. Cases where
a decision is rendered by the court or quasi-judicial authority without notice to the opposite
party or under a mistaken impression that the notice had been served upon the opposite
party, or where a matter is taken up for hearing and decision on a date other than the date
fixed for its hearing, are some illustrative cases in which the power of procedural review
may be invoked. In such a case the party seeking review or recall of the order does not
have to substantiate the ground that the order passed suffers from an error apparent on
the face of the record or any other ground which may justify a review. He has to establish
that the procedure followed by the court or the quasi-judicial authority suffered from such
illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch
as the opposite party concerned was not heard for no fault of his, or that the matter was
heard and decided on a date other than the one fixed for hearing of the matter which he
could not attend for no fault of his. In such cases, therefore, the matter has to be reheard in
accordance with law without going into the merit of the order passed. The order passed is
Page 11 of 16

liable to be recalled and reviewed not because it is found to be erroneous, but because it
was passed in a proceeding which was itself vitiated by an error of procedure or mistake
which went to the root of the matter and invalidated the entire proceeding. In Grindlays
Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 : 1981 SCC (L&S) 309]
it was held that once it is established that the respondents were prevented from appearing
at the hearing due to sufficient cause, it followed that the matter must be reheard and
decided again.”
(Emphasis supplied)
18. The underlined portions would at once make it clear that what was being
considered was the difference between substantive review on merits and a
procedural review. The provisions of substantive review as in Order 47 of the Code
are so worded that the same make such remedy available only in certain specific
circumstances. The same do not include the grounds required to be shown for a
procedural review viz. mistake of Court etc. Thus in appropriate situations the
Court would be entitled to invoke inherent powers if the ground on which the
power is sought to be invoked is not available to be asserted through any other
provision in the Code.
19. But if a wide provision that subsumes even such grounds exists, would it still be
open to the Court to use inherent powers? It is well settled that where an express
provision exists in the Code which completely exhausts the scope of using inherent
power then Section 151 of the Code cannot be employed to grant the same relief by
the Court. Inherent powers under Section 151 of the Code can be exercised by the
Court to redress only such a grievance, for which no remedy is provided for under
19
Code .
20. Where the relief sought is to recall/vacate an order of injunction, which, in effect,
means to set aside an existing injunction, Order 39 Rule 4 of the Code expressly
supplies that power, irrespective of whether the ground is substantive or
procedural. The procedural character, in the facts of this case does not take the
resulting order outside Order 39 Rule 4 of the Code.
21. The matter can be looked at from a different angle. Suppose the learned Trial Court
had for the same reason as in this case not heeded to the caveat and refused to
pass an order of injunction. In such a case would the petitioners have come up
with an application for recalling of the order? The answer will be in the negative.
The reason is simple; the petitioners would then not have been dissatisfied with the
order. Therefore dissatisfaction with the order is indeed material.

19
Ram Prakash Agarwal vs. Gopi Krishan, (2013) 11 SCC 296
Page 12 of 16

22. There is yet another way to look at the matter. It is well settled that a person who is
aggrieved by an order of injunction passed against him has three remedies and he
can choose any one of them. He can prefer an appeal under Order 43 Rule 1(r) of
the Code or file an application under Order 39 Rule 4 thereof for vacation of the
injunction or contest the ad interim injunction by filing written objection to the
application for temporary injunction and get the same vacated after final hearing. It
may be noticed that in Gayatri Chetna Foundation (supra) the appellant had
preferred appeal against the ex- parte ad interim order of injunction and one of the
principal grounds urged was non service of notice despite lodgement of caveat. The
Hon’ble Division Bench allowed the appeal on that ground alone. If non-service of
notice despite caveat can be a ground of attack in an appeal under Order 43 Rule
1(r) of the Code, there is no reason why the same cannot be a ground for vacating
an order of injunction under Order 39 Rule 4 of the Code.
23. It is a different question altogether as to whether the learned Trial Court was
justified in refusing to recall the order of injunction or vacate the injunction on the
ground that found favour with it.
24. That being the case, it cannot be held that the application for recalling/vacating
the order of injunction was not one under Order 39 Rule 4 of the Code. Once it is
so held, the order impugned becomes one passed under the provisions of Order 39
Rule 4 of the Code and the appellate remedy under Order 43 Rule 1(r) of the Code
would be required to be resorted to by the petitioners to assail the same.
25. The Hon’ble Division Bench authority of Sukumar Roy (supra) relied on by the
petitioners could have been applied by this Court only if this Court could entertain
the challenge to the order impugned, however, in view of the mandate of the
Hon’ble Supreme Court in the case of A. Venkatasubbiah Naidu (supra) and
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai (supra), this Court
would not entertain such a challenge. While the core legal position remains
absolutely unshaken — that the plenary constitutional powers under Articles 226
and 227 of the Constitution of India are untrammelled by any legislation — the
Hon’ble Supreme Court has repeatedly emphasised that jurisdiction under Article
227 should not be exercised when an alternative appellate remedy is available
before the Civil Courts. The words of the Hon’ble Supreme Court in Virudhunagar
Hindu Nadargal Dharma Paribalana Sabai (supra) are quite telling and leave no
room for ambiguity in such regard. The same are reproduced hereunder:-
“ 12. But courts should always bear in mind a distinction between (i) cases where such
alternative remedy is available before civil courts in terms of the provisions of Code of Civil
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Procedure, and (ii) cases where such alternative remedy is available under special
enactments and/or statutory rules and the fora provided therein happen to be quasi-
judicial authorities and tribunals. In respect of cases falling under the first category, which
may involve suits and other proceedings before civil courts, the availability of an appellate
remedy in terms of the provisions of CPC, may have to be construed as a near total bar.
Otherwise, there is a danger that someone may challenge in a revision under Article 227,
even a decree passed in a suit, on the same grounds on which Respondents 1 and 2
invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court,
while overruling the decision in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] , pointed out in Radhey Shyam v. Chhabi Nath [Radhey
Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67] that “orders of civil court
stand on different footing from the orders of authorities or tribunals or courts other than
judicial/civil courts”.
(Emphasis supplied)

26. Furthermore, in the case of Sukumar Roy (supra) the issue of maintainability of
the revisional application was not raised before the Court. Moreover, while the
Hon’ble Division Bench made it clear that the only option left with the relevant
Court was to recall the order passed in ignorance of a caveat it cannot be
interpreted to mean that such recall must necessarily be under Section 151 of the
Code and not under Order 39 Rule 4 of the Code. This Court is conscious of the
fact that the expression “recall” has not been used in order 39 Rule 4 of the Code
but then having regard to the aforementioned discussion as regards the scope of
Order 39 Rule 4 and Section 151 of the Code the same would make little difference
in the facts of this case. After all, it is well settled that a judgment is not to be read
like a statue.
27. Chanchal Bhattacharjee (supra) cannot aid the petitioners inasmuch as in that
case a Co-ordinate Bench of this Court recalled the order passed by it upon it being
brought to its notice that the order had been passed without notice to the caveator.
In the case at hand, it is not that this Court is rejecting the petitioners’ prayer for
recall on merits. All that this Court is saying is that the strict hierarchy of Civil
Courts must be respected in view of the mandate of the Hon’ble Supreme Court in
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai (supra) and the
competent Appellate Court under Order 43 Rule 1(r) of the Code be approached for
appropriate relief.
28. M/s. Contemporary Target Private Limited & Others (supra) holds that an
application under Article 227 of the Constitution of India can be maintained in
cases where the Court has passed orders without jurisdiction or in flagrant
violation of fundamental principles of justice and fair play. Rajesh Kumar Pandey
& Another (supra) also holds similarly. There is no quarrel with the propositions
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held in the said judgments but then, as already indicated hereinabove, going by the
legal position as it now obtains, keeping in view the judgment of the Hon’ble
Supreme Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai
(supra), the High Court should be too slow to interfere with orders passed by Civil
Courts, if appellate forum is available. In the case at hand, an appellate forum is
available and the petitioners are not remediless.
29. Mahadev Govind Gharge & Others (supra) is a salutary authority for the
proposition that a caveator has a right to be heard mandatorily, however, the same
would be relevant only when the Court assesses the merits of the petitioners’ case
as regards non-service of notice, as run in the recalling/vacating application. In the
present case, this Court has stopped its enquiry at the entry point and has
refrained from delving into the merits.
30. Veerabhadrappa (supra) is an authority for the proposition that an order passed
under Section 151 of the Code is not appealable either under Order 43 Rule 1(r) or
under Section 104 thereof. The proposition is beyond doubt but then for it to apply,
the relevant order, whether of grant of injunction or refusal thereof, must be under
Section 151 of the Code. As already indicated hereinabove, an order can be said to
be one under Section 151 of the Code if the same relief cannot be obtained under
any other express or implied provision of the Code. Such is not the case at hand.
31. In J.M. Financial Asset Reconstruction Company Limited (supra), this Court
has relied on Virudhunagar Hindu Nadargal Dharma Paribalana Sabai (supra)
and refused to entertain a revisional application against order passed on an
application under Section 151 of the Code by holding that
inter alia “for deciding as
to whether the order impugned is an appealable one, the Court should look into the
nature of relief sought for and the order passed thereon rather than the form of the
application”. The aforesaid observation clarifies that the ultimate relief and the
order passed thereon would be the deciding factor. In the case at hand the ultimate
relief sought for was recalling/vacating the injunction and the order passed thereof
is refusal to do so. The same squarely fall under Order 39 Rule 4 of the Code.
32. Reserve Bank of India Employees Association & Another (supra) holds that the
order passed by a Court without giving a notice to the caveator cannot be treated
as a nullity. The said judgment is not relevant for the present purpose as this Court
is not entering into the merits of the petitioners’ application for recall.
33. Airport Authority of India (supra) reveals that the Court refused to exercise its
jurisdiction either under Article 227 of the Constitution of India or under Section
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115 of the Code in view of availability of alternative remedy of appeal following A.
Venkatasubbiah Naidu (supra).
34. Smt. Suchanda Jana (supra) and Yajur Fibres Limited (supra) reiterate that no
matter how an application is captioned, if it is in substance an application in the
nature of one either under Order 39 Rules 1 and 2 or Order 39 Rule 4 of the Code,
an order passed thereon would be appealable under Order 43 Rule 1(r) thereof and
this Court would not entertain a challenge to such order under Article 227 of the
Constitution of India.
35. In the instant case, this Court has found that the impugned order has been passed
on an application that is covered by the width of Order 39 Rule 4 of the Code and
as such the same is appealable under Order 43 Rule 1(r) of the Code.
CONCLUSION:
36. For all the reasons aforesaid, this revisional application is not entertained. The
petitioners shall be free to approach the appropriate Appellate Court in accordance
with law. It is noticed that the present revisional application has been filed within
the timeframe in which an appeal, if preferred, would have been within limitation.
Such being the position, if the petitioners file an appeal within a week from date
the delay in preferring appeal shall stand condoned and the appeal shall be treated
as within time. The learned Appellate Court is requested to dispose of the appeal
expeditiously and preferably within a fortnight form the date of filing thereof. In
case the petitioners are unable to file the appeal within the period of a week, the
petitioners will be entitled to exclusion of the period of limitation of the entire
duration during which the present revisional application remained pending.
Needless to mention that this Court has not gone into the merits of the petitioners’
application for recalling/vacating the order of injunction or the validity of the
caveat lodged by the petitioners. Consequently, all points shall remain open to be
urged before and decided by the learned Appellate Court.
37. C.O. 1515 of 2026 stands disposed of with the above observations. No costs.
38. Urgent photostat certified copy of this judgment, if applied for, be supplied to the
parties on urgent basis after completion of necessary formalities.

(Om Narayan Rai, J.)

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