Sri Ambal Mills Ltd.Kamanayakan Palayam RoadP.B.No.12 SomanurCoimbatore v. S.Clement Paulraj2.A.Ramasamy3.S.Kanagaraj4.K.Subramaniyam5.A.Shanmugam

This Revision Petition has been filed against the order dated 18.4.2006, passed in C.M.A.No.1/2006 on the file of the SubJudge, Tiruppur.

The defendant company in O.S.No.348/2005 on the file of the District Munsif Court, Palladam is the revision petitioner.

The respondents 1 to 5 herein filed the above suit for apermanent injunction restraining the revision petitioner/defendant https://hcservices.ecourts.gov.in/hcservices/ from removing the installed machineries of the company situated at Somanur. Along with the suit the plaintiffs filed I.A.No.1154/2005for granting an order of temporary injunction.

The trial court by order dated 29.12.2005 partly allowed the injunction application by holding that the revisionpetitioner/defendant should act on the basis of the resolution dated13.10.2005 marked as Ex.R4 and until the conditions contained in theresolution dated 13.10.2005 are complied with by the company, there vision petitioner/defendant should not remove the installedmachineries.

Aggrieved by the order dated 29.12.2005, respondents 1 and 2herein alone (plaintiffs 3 and 4) filed an appeal in C.M.A.No.1/2006and by order dated 18.4.2006, the Sub-Court, Tiruppur allowed the appeal and granted the interim injunction as prayed for by the plaintiffs. Aggrieved by the order of the 1st appellate court dated18.4.2006, the defendant in the suit has filed the above revision petition under Article 227 of the constitution of India.

Heard Mr.A.L.Somayaji, learned Senior counsel for there vision petitioner and Mr.T.R.Mani, learned Senior Counsel forrespondents 1 and 2 and Mr.Abdul Pari, for respondents 3 to 5. Ihave also gone through the documents and the judgments referred toby them in support of their submissions.

The learned Senior Counsel for the revision petitioner submitted that the lower appellate court has considered the issues which are not relevant and reversed the well considered order of the trial court. He further submitted that the suit itself is not maintainable and instead of raising an Industrial Dispute, the plaintiffs have filed the above suit at the instance of some other vested interested persons. He relied on the following judgments to contend that the suit itself is not maintainable:1) 1976(1)SCC 496 (Premier Automobiles Ltd. v. Kamlekar ShantaramWadke.2) 2004(2)L.L.N.1086 (P.Pitchumani v. Mgmt. Of Sri ChakraTyres, Ltd.)3) 2005(4) L.L.N. 403 (Jaihind Roadways v. Mah. Rajya M.T. & G.K.U.)4) 2005(4)L.L.N. 10 ( Mgmt. Of G.E. Power Controls India v.S.Lakshmipathy)

Per contra, the learned Senior counsel for respondents 1 and2 submitted that when the lower appellate court has exercised its discretion to grant an order of injunction, the same cannot be setaside in the revision petition filed under Article 227 of the Constitution unless the discretion exercised is perverse. https://hcservices.ecourts.gov.in/hcservices/

I have given due consideration to the rival submissions.

The trial court has kept in mind the fact that majority of the workmen agreed for a Memorandum of Understanding and on that basis resolutions were passed on 13.10.2005 which were marked asEx.R4. As per the resolutions, without paying the arrears amount to the workmen by issuing with the cheques and before the cheques were honoured by the bank, the machineries should not be removed and the trial court found that those resolutions were reasonable and there solutions should be acted upon by the revision petitioner andEx.R4 dated 13.10.2005 should be considered as part and parcel of the trial court's order dated 29.12.2005. Therefore the trial court granted a limited injunction restraining the revision petitioner from removing the machineries until Ex.R4 was complied with.

Only respondents 1 and 2 herein who are plaintiffs 3 and 4filed an appeal against the order of the trial court, which means plaintiffs 1, 2 and 5 were not aggrieved by the order of the trial court (who are respondents 3 to 5 herein).

The lower appellate court held that when the revision petitioner has decided to close the mill they should obtain prior permission and as all the workmen have not signed Ex.R4, it could not have been acted upon by the revision petitioner. The lower appellate court mainly relied on the decision of the Hon'ble SupremeCourt reported in 2005 LLR 305 (2005(2) LLN 21) (Oswal Agro FuraneLtd. v. Its Workers Union) to come to a conclusion that if themachineries are removed now, it would affect the rights of the workmen and granted the order of injunction as prayed for by the plaintiffs in the suit.

Even though elaborate arguments were advanced by the learned Senior Counsel for the revision petitioner contending that the suit itself is not maintainable in view of Industrial DisputesAct by citing judgments, the maintainability of the suit was not raised in the counter statement filed in I.A.No.1154/2005.Moreover, the revision petitioner was not at all aggrieved by the order of the trial court in granting the limited injunction inI.A.No.1154/2005 and that is why they have not filed an appeal against the order dated 29.12.2005. In such circumstances, the only question that arises for consideration is whether the lower appellate court is right in granting the order of interim injunctionas prayed for by the plaintiffs by setting aside the order of the trial court granting limited injunction.

The lower appellate court has failed to consider the fact that majority of the workers belonging to all the 6 unions numbering about 330 workers have accepted the resolutions and received payments and only a few of them including respondents 1 and 2 did not receive the payments even though the revision petitioner was https://hcservices.ecourts.gov.in/hcservices/ willing to pay the same. Similarly the lower appellate court has not considered the decision of the Hon'ble Supreme Court in Oswal'scase (cited supra) in the proper perspective. The lower appellate court has also failed to advert to the fact that the order of BIFRfor winding up of the revision petitioner company has been stayed by the appellate forum and in such circumstances the provisions of the Companies Act will not apply to the present case.

If at all, the workers who have not signed the resolution dated 13.10.2005 which was passed on the basis of the Memorandum of Understanding, then they have to raise a dispute before the appropriate forum and the same cannot be agitated before the civil court.

The lower appellate court has failed to consider the fact that the trial court has gone into the matter in detail by considering relevant documents and also the welfare of the workers and passed a considerate order granting a limited injunction and also making Ex.R4 as part and parcel of the order. In such circumstances, the lower appellate court ought not to have reversed the order of the trial court. An appeal against an order passed ina petition filed under Order 39 Rules 1 and 2 C.P.C. is not like aregular appeal and if the trial court has passed an order by exercising its discretion properly, the same cannot be interfered with by the appellate court unless the discretion exercised is perverse, unreasonable and considering irrelevant material or not considering the relevant material.

In the present case, the trial court has correctly exercised its discretion in granting a conditional order of injunction on the basis of Ex.R4 and the 1st appellate court has erred in law and on facts in reversing the trial court order and granting an absolute injunction as prayed for by the plaintiffs in the suit.

Hence, I am setting aside the order of the appellate court dated 18.4.2006 made in C.M.A.No.1/2006 and restoring the order of the trial court dated 29.12.2005 made in I.A.No.1154/2005 inO.S.No.348/2005.

In the result, the C.R.P. is allowed. No cost.C.M.P.No.7438/2005 is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sks https://hcservices.ecourts.gov.in/hcservices/ To1. The Sub-Judge, Tiruppur.2. The District Munsif, Palladam. 3. Thr Record Keeper,V.R. Section, High Court, Madras.1 cc to M/s. Gupta & Ravi Advocate, Sr. 448191 cc to Mr.S. Abdul Pari, Advocate, Sr. 448411 cc to Mr.A.Anbarasan, Advocate, sr. 44842C.R.P.(PD)780/06.PV (CO)kk 26/9