PETITIONER: SHIV KUMAR CHADHA ETC. ETC. Vs. RESPONDENT: MUNICIPAL CORPORATION OF DELHI AND ORS. DATE OF JUDGMENT04/05/1993 BENCH: <NAME> BENCH: <NAME> VENKATACHALLIAH, M.N.(CJ) SAWANT, P.B. CITATION: 1993 SCR (3) 522 1993 SCC (3) 161 JT 1993 (3) 238 1993 SCALE (2)772 ACT: % Code of Civil Procedure, 1908: Section 9-Civil <ORG>'s jurisdiction- Ouster when. Delhi Municipal <ORG> Act, 195: Sections 343 , 347E -Suits in connection with orders passed or proceedings initiated for demolition of constructions- Maintainability of-Directions of Supreme <ORG>. Code of Civil Procedure, 1908: Order 39, Rule 3, proviso Temporary injunction-Granting of- When-<ORG>'s duty-Reasons for grant of injunction-Mandatory to record-<ORG> directions. HEADNOTE: In respect of some private dispute between two neighbors a writ application was filed in <ORG>. On the material produced in the case it was treated as a Public Interest Litigation and <ORG> was to rind out a solution in respect (if unauthorised constructions alleged to have been made by different owners/occupiers/builders without sanctioned plans or by making deviations from the sanctioned plans. <ORG> wanted to ensure that such unauthorised constructions were not perpetuated on the basis of interim orders of injunction passed by <ORG>. <ORG> disposed of the petition holding that the owners/ occupiers/builders were to be given liberty to file fresh building plans and that <ORG> was to examine such building plans in accordance with law and that the <ORG> was to seal and to demolish those constructions which were beyond the compoundable limits. <ORG> also directed that no civil suit would be entertained by any <ORG> in Delhi in respect of any action taken or proposed to be taken by the <ORG> with regard to the sealing and/or demolition of any building or any part thereof. <ORG> directed further that person aggrieved by an order of sealing or demolition had the right to file an appeal to <ORG> under the Delhi Municipal <ORG> Act, 1957. 522 523 Against <ORG>'s order the present appeals were filed by special leave. On the question, "whether the jurisdiction of the <ORG> has been statutorily barred in respect of suits in connection with the orders passed or proceedings initiated for demolition of constructions, which have been made without sanction or by deviating from the sanctioned plans", allowing the appeals, this <ORG>, HELD:1.1. With the increase in the number of taxing statutes, welfare legislations and enactments to protect a class of citizens,a trend can be noticed that most of such legislations confer decision making powers on various authorities and they seek to limit or exclude <ORG>'s power to review those decisions. The result is that the power of the <ORG> under section 9 of the Code is being denuded and curtailed by such special enactments, in respect of liabilities created or rights conferred. The ouster of the jurisdiction of the <ORG> is upheld on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided therein Was adequate. (535-D-F) 1.2.The situation will be different where a statute purports to curb and curtail a pre-existing common law right and purports to oust the jurisdiction of the <ORG> so far remedy against the orders passed under such statute are concerned. In such cases,the courts have to be more vigilant, while examining the question as to whether an adequate redressal machinery has been provided, before which the person aggrieved may agitate his grievance. (535-G) 1.3.In spite of the bar placed on the power of the <ORG>, orders passed under such statutes can be examined on "jurisdictional question". A suit will be-maintainable. (536-F) <NAME> v. <NAME>, AIR 1974 SC 1069; <CITATION> , AIR 1964 SC 807; <ORG> v. <ORG>, 1960 A.C. 260 and <CITATION> , 1969 2 AC 147, relied on. <ORG> v. <NAME>,  6 524 C.B. (N.S.) 336; <NAME> v. <ORG> Newspaper Limited.  Appeal Cases 368; <NAME> v. <NAME>,  Appeal Cases 615; <CITATION> ., AIR 1940 P.C. 105; <CITATION> . <ORG>, Ludhiana, AIR 1963 SC 1547; <CITATION> , AIR 1964 SC 322; <CITATION> , AIR 1965 SC 1942; <CITATION> , AIR 1966 SC 893; <CITATION> and sons, AIR 1966 SC 1738; <CITATION> , 3 SCR 214; <CITATION> , 3 SCR 736; <CITATION> , AIR 1969 SC 78; <CITATION> , AIR 1975 SC 2238= 1 SCC 496; <CITATION> , AIR 1977 SC 955=  2 SCC 472; <CITATION> , AIR 1979 SC 1250= 3 SCC 83; <NAME> v. Grain Panchayat, Mehal Kalan, AIR 1986 SC 2197=4 SCC 364; <CITATION> , AIR 1988 SC 752=  SCC 681 and <NAME> v. GobindRam Bohra,  1 SCC 193, referred to. 1.4. The Delhi Municipal <ORG> Act purports to regulate the common law right of the citizens to erector construct buildings of their choice. This right existed since time immemorial. But with the urbanisation and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. But as the provisions of the Act intend to regulate and restrict a common law right, and not any right or liability created under the Act itself, it cannot be said that the right and the remedy have been given unoflatu e.g. "in the same breath". (537-E) 1.5. In spite of the bar prescribed under sub-sections (4) and (5) of section 343 and section 347E of the <ORG> Act over the power of the <ORG>s, under certain special circumstances,the <ORG> can examine, whether the dispute falls within the ambit of the Act. But once the <ORG> is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens. (537-C) 1.6. The regulations and bye-laws in respect of buildings, are meant to 525 serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the <ORG>. In some special cases where "jurisdictional error" on the part of the <ORG> is established, a suit shall be maintainable. (538-C) 1.7. The <ORG> should not ordinarily entertain a suit in connection with the proceedings initiated for demolition by the Commissioner, in terms of section 343 (1) (of the <ORG> Act . The <ORG> should direct the persons aggrieved to pursue the remedy before <ORG> and then before the Administrator in accordance with the provisions of the said Act. (538-D) 1.8. The <ORG> should entertain a suit questioning the validity of an order passed under section 343 of the Act, only if the <ORG> is of prima facie opinion that the order is nullity in the eyes of law because of any "jurisdictional error" in exercise of the power by the Commissioner or that the order is outside the Act. (538-E) 2.1. A party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the <ORG> and such discretion is to he exercised in favour of the plaintiff only if it is proved to the satisfaction of the <ORG> that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. (538-H) 2.2.The purpose of temporary injunction is, to maintain the status quo. The <ORG> grants such relief according to the legal principles- ex debite justitiae. Before any such order is passed the <ORG> must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. (539B) 2.3. 'The <ORG> should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law (or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the <ORG>. (539- 1)) 526 2.4. Power to grant injunction is an extra-ordinary power vested in the <ORG> to he exercised taking into consideration the facts and circumstances of a particular case. The <ORG>s have to be more cautious when the said power is being exercised without notice or hearing the party who is to he affected by the order so passed. (539-E) 2.5. In spite of the statutory requirement, in order 39, Rule 3 the <ORG>s have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that <ORG> has prejudged the issues involved in the suit. This is a misconception about the nature and the scope of interim orders. Any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party,, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 of Order 39, there is no scope for any argument. When the statute itself requires reasons to he recorded, the <ORG> cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant (539-H, 540-H) 2.6. Proviso to Rule 3 of Order39 of the Code, attracts the principle, that if a statute requires a thing to he done in a particular manner, it should be done in that manner or not all. <NAME> v. <NAME>, (1875)1 Ch. D. 426; <CITATION> , AIR 1936 PC 253 and <CITATION> , AIR 1975 SC 915, relied on. 2.7. Whenever a <ORG> considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an exparty order is not passed. But any such exparty order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. (541-C) Supreme <ORG> Practice 1993, Vol. 1, at page 514, referred to. 527 2.8.The <ORG> should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the <ORG> or any competent authority of the <ORG> and the order should be passed only after hearing the parties. (541-F) 2.9.If the circumstances of a case so warrant and where the <ORG> is of the opinion, that the object of granting the injunction would be defeated by delay, the <ORG> should record reasons for its opinion as required by proviso to Rule 3 of Order 39 of the Code, before passing an order for injunction. The <ORG> must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the <ORG>. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of Order 39 aforesaid. If the <ORG> has entered appearance, any such ex parte order of injunction should be extended only after hearing the counsel for the <ORG>. (541-H, 542- A) 2.10.While passing an exparte order of injunction the <ORG> shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of. (512-C) JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2531-33 of 1993.

From the Judgment and Order dated 19.2.1991 of <ORG> in C.W.P. No. 3499 of 1989.

<NAME>, <NAME>, Ms. <NAME> and Ms. <NAME> for the Appellants.

<NAME>, <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME> Special leave granted.

These appeals have been filed against an order passed by <ORG> directing <ORG> (hereinafter referred to as "the <ORG>") to issue appropriate notices to the owners/occupiers/builders of the building where illegal constructions have been made. A liberty has been given to the owners/occupiers/builders to file fresh buildings plans with the <ORG> in conformity with the existing bye- laws. The building plans as filed are to be examined in accordance with the law. The <ORG> has been directed that if it finds that the constructions are beyond the compoundable limits, then to seal the same and to demolish thereafter.

The appellants have no grievance so far as the aforesaid part of the order is concerned. They have sought interference of this <ORG> with the other part of the order, where it has been said that "no civil suit will be entertained by any court in Delhi in respect of any action taken or proposed to be taken by the <ORG> with regard to the sealing and/or demolition of any building or any part thereof. Any person aggrieved by an order of sealing or demolition which is passed shall, however, have the right of filing an appeal to <ORG> under the Municipal Act. <ORG> is the only forum which has the jurisdiction to grant interim relief." The other part of the order in respect of which objection has been taken is where the <ORG> has directed the <ORG> to approach those courts which have already issued injunction "for variation and vacation of the injunction orders in the light of" the said order.

Initially a writ application was filed in respect of some private dispute between two neighbours. In due course on the material produced by one party or the other it was treated as a Public Interest Litigation and by the impugned order <ORG> has purported to find out a solution in respect of unauthorised constructions alleged to have been made by different owners/ occupiers/builders in the different parts of the city without sanctioned plans or by making deviations from the plans which had been sanctioned. The Court has also purported to ensure that such unauthorised constructions are not perpetuated on the basis of interim orders of injunction passed by Civil Courts. It cannot be disputed that by the impugned order the jurisdiction of any Court in Delhi to entertain any suit in connection with demolition of any part of any building which, according to the <ORG>, is unauthorised and illegal has been ousted.

The Delhi Municipal <ORG> Act, 1957 (hereinafter referred to as "the <ORG> Act ") has made provisions for the constitution of the <ORG> and has prescribed the procedure for election of the councillors, levy of taxes, sanitation and public health. Chapter XVI contains provisions regarding erection of buildings within the <ORG> area. Section 331 defines the expression "to erect a building". Section 332 says that" no person shall erect or commence to erect any building or execute any of the works specified in section 334 except with the previous sanction of the Commissioner". The relevant part of section 343 is as follows:-

"343. Order of demolition and stoppage of buildings and works in certain cases and appeal .................................... (2)Any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to <ORG> within the period specified in the order for the demolition of the erection or work to which it relates.

(3)Where an appeal is preferred under sub-section(2)against an order of demolition, <ORG> may, subject of the provisions of sub-section (3) of section 347 C, stay the enforcement of that order on such terms, if any, and for such period, as it may think fit:

Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by <ORG> unless security, sufficient in the opinion of the said <ORG> has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.

(4)No Court shall entertain any suit, application or order proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.

(5)Subject to an order made by the Administrator on appeal under section 347 D, every order made by <ORG> on appeal under this section, and subject to the orders of the Administrator and <ORG> on appeal. the order of demolition nude by the Commissioner shall be final and conclusive".

Section 344 vests power in the Commissioner to stop the construction of the building where the erection of such building or execution of any work has been commenced or is being carried on either without sanction or contrary to sanction so granted or in contravention of any condition subject to which sanction has been accorded. Under section 345A , the Commissioner at any time, before or after making an order of demolition under section 343 or of the stoppage of the erection of any building or execution of any work under section 343 , can make an order directing the sealing of such erection or work or of the premises in which such erection or work is being carried or has been completed. A further appeal has been. provided under section 347D to the Administrator against the order of <ORG>. Section 347E says:- "347E. Bar of jurisdiction of courts.

(1) After the commencement of section 7 of the Delhi Municipal Corporation (Amendment) Act, 1984, no court shall entertain any suit, application or other proceedings in respect of any order or notice appealable under section 343 or section 347B and no such order or notice shall be called in question otherwise then by preferring an appeal under these sections.

(2)Notwithstanding anything contained in sub-section (1), every suit, application or other proceeding pending in any court immediately before the commencement of section (7) of the Delhi Municipal Corporation (Amendment) Act, 1984, in respect of any order or notice appealable under section 343 or section 347B , shall continue to be dealt with and disposed of by that court as if the said section had not been brought into force."

Because of sub-sections (4) and (5) of section 343 and section 347E aforesaid the stand of the <ORG> is that the Courts have been debarred from entertaining suits, applications or proceedings for injunction, against any order or notice for demolition and the order of demolition passed by the Commissioner, subject to appeals before <ORG> and Administrator shall be deemed to be final and conclusive.

In spite of several pronouncements of this <ORG> during the last four decades, the question as to whether the jurisdiction of the <ORG> has been statutorily barred in respect of suits in connection with the orders passed or proceedings initiated for demolition of constructions, which have been made without sanction or by deviating from the sanctioned plans, has to be answered.

Section 9 of the Code of Civil Procedure, (hereinafter referred to as "the Code") says that <ORG>s shall have jurisdiction to try all suits of civil nature "except suits of which their cognizance is either express Iyor impliedly barred".According to the <ORG> once the jurisdiction of the <ORG> to try a suit in which the validity of any order passed under the provisions of the <ORG> Act or the notice issued thereunder has been specifically barred and an internal remedy has been provided for redressal of the grievances of the persons concerned, there is no scope for <ORG> to entertain a suit.

In the olden days the source of most of the rights and liabilities could be traced to the common law. Then statutory enactments were few. Even such enactments only created rights or liabilities but seldom provided forums for remedies. The result was that any person having a grievance that he had been wronged or his fight was being affected, could approach the ordinary <ORG> on the principle of law that where there is a right there is a remedy-ubi jus ibi remedium. As no internal remedy had been provided in the different statutes creating rights or liabilities, the ordinary <ORG>s had to examine the grievances in the light of different statutes. With the concept of the Welfare State, it was realised that enactments creating liabilities in respect of payment of taxes obligations after vesting of estates and conferring rights on a class of citizens, should be complete codes by themselves. With that object in view, forums were created under the Acts themselves where grievances could be entertained on behalf of the persons aggrieved. Provisions were also made for appeals and revision to higher authorities. Then a question arose as to where a particular Act had created a right or liability and had also provided a forum for enforcement of such right or for protection from enforcement of a liability without any authority in law, whether a citizen could approach a <ORG>. It may be pointed out that many statutes have created certain rights or liabilities and have also provided the remedial measures in respect thereof. But such statutes have not touched the common law rights of the citizen. But there are some statutes, which in public interest affect even the common law rights or liabilities of toe citizen, which were in the nature of existing rights. The distinction between the two types of rights or liabilities is subtle in nature but at the same time very vital.

In one of the earliest case of <ORG> v.

<NAME>, (1859) 6 C.B. (N.S.) 336, <NAME>, J, said:- "There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common-law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if any liability at all exists. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class." The same view was reiterated by <ORG> in <NAME> v. <ORG>, (1919) Appeal Cases 368. In <NAME> v. <NAME>, (1897) AC 615, it was said:-

"I do not think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right."

It was further pointed out "The right and the remedy are given uno flatu, and the one cannot be dissociated from the other."

In the well-known case of <CITATION> ., AIR 1940 Privy Council 105, this question was considered in connection with Sea Customs Act (1878). It was said:- "It is settled law that the exclusion of the jurisdiction of <ORG> is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, <ORG> have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure."

But having enunciated the general principle in respect of ouster of the jurisdiction of <ORG> it was said:- "But, in their Lordships' opinion, neither Sec, 32 nor the principle involved in the decision in 401 A 48, affect the validity of an Act of the Indian Legislature which creates an obligation and provides an exclusive Code for its determination such an obligation is not covered by sub s. (2) of Section 32 ."

In connection with the imposition of Terminal Tax on salt under the Punjab Municipal Act. <CITATION> committee. Ludhiana, AIR 1963 SC 1547, it was said that where a statute created a liability and provided a remedy, party aggrieved should pursue the remedy provided under the Act. A Constitution Bench of this Court in <CITATION> , AIR 1964 SC 322, considered the provisions of Madras General Sales Tax Act and the exclusion of the jurisdiction of <ORG>. It was pointed out that there was an express and unambiguous prohibition and no suit could be entertained by <ORG>. In connection with the Bombay Sales Tax Act the same view was reiterated by a Constitution Bench of this Court in <CITATION> AIR 1965 SC 1942. <CITATION> chand, AIR 1966 SC 893, a Constitution Bench examined the bar on the jurisdiction of <ORG> in connection with the <ORG> and TenantsU.P. (Temporary) control of Rent and Eviction Act , and came to the conclusion that a special statute had excluded the jurisdiction in clear and unambiguous words and it had provided an adequate and satisfactory alternative remedy to a party. That may be aggrieved by the relevant order and as such the jurisdiction of <ORG> had been ousted. This very question was examined in State of Kerala v. MI s <NAME> and sons, AIR 1966 SC 1738, in connection with the Travancore-Cochin General Sales Tax Act and it was held that the jurisdiction of <ORG> would be deemed to have been excluded because the legislature had set up a special tribunal to determine the question relating to rights or liabilities. which had been created by the statute. Again in connection with the provisions of the Evacuee Property Act , in <CITATION> ,  3 SCR 214 and <CITATION> ,  3 SCR 736, it was held that complete machinery for adjudication of all claims had been provided under the Act and there being a bar on the jurisdiction of any court, the Act over-rides other laws, including Section 9 of the Code of Civil Procedure and there was no scope for <ORG> to entertain any suit.

The Constitution Bench in <NAME> v. State of Madya Pradesh, AIR 1969 SC 78, said:-

"Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."

In connection with the Industrial Disputes Act , in <CITATION> . AIR 1975 SC 2238 =  1 SCC 496, it was pointed out that "<ORG> will have no jurisdiction to try and adjudicate upon an industrial dispute, if it concerned enforcement of certain right or liability created only under the Act. " The jurisdiction of <ORG> in connection with the levy of octroi duty under the C.P. and Barar Municipalities Act, 1922 was examined by this Court in <CITATION> , AIR 1977 SC 955 1 9771 2 SCC 472, and held it was barred.

Whether the Court can hear and determine suits relating to levy of professional tax under the Punjab Municipal Act, 1971 was examined in the case of <CITATION> . Chheharta, AIR 1979 SC 1250 =  3 SCC 83, and it was held:-

Where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excludes." It was pointed out in <CITATION> , AIR 1986 SC 2197 =  4 SCC 364, that when by a special statute rights have been created and jurisdiction of the <ORG> has been barred then the jurisdiction of the <ORG> to try such suits has been taken away. In the case of <CITATION> , AIR 1988 SC 752 =  1 SCC 68 1, it was said:-

"... Wherever a right, not preexisting in common-law is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil courts'jurisdiction is impliedly barred." The jurisdiction of <ORG> to entertain a suit for ejectment was examined in <NAME> v. GobindRam Bohra, [1990] 1 SCC 193, and it was held that the Rent Control Act was a complete Code and the jurisdiction to try a case for ejectment was exclusive under that Act. With the increase in the number of taxing statutes, welfare legislations and enactments to protect a class of citizens, a trend can be noticed that most of such legislations confer decision making powers on various authorities and they seeks to limit or exclude <ORG>'s power to review those decisions. The result is that the power of the <ORG> under section 9 of the Code is being denuded and curtailed by such special enactments, in respect of liabilities created or rights conferred. This <ORG> in the judgments referred to above has upheld the ouster of the jurisdiction of the <ORG> on examination of two questions (1) Whether the right or liability in respect whereof grievance has been made, had been created under an enactment and it did not relate to a pre-existing common law right? (2) Whether the machinery provided for redressal of the grievance in respect of infringement of such right or imposition of a liability under such enactment, was adequate and complete? The ouster of the jurisdiction of the <ORG> was upheld on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided therein was adequate.

But the situation will be different where a statute purports to curb and curtail a pre-existing common law right and purports to oust the jurisdiction of the <ORG> so far remedy against the orders passed under such statute are concerned. In such cases, the courts have to be more vigilant, while examining the question as to whether an adequate redressal machinery has been provided, before which the, person aggrieved may agitate his grievance. In the case of katikara Chintamani Dora v. <NAME>, AIR 1974 SC 1069, this <ORG> after referring to the case of <CITATION> , AIR 1964 SC 807, observed:-

"It was pertinently added that this exclusion of the jurisdiction of <ORG> would be subject to two limitations. First, <ORG>s have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors." It was held that a suit for declaration that "the decision of the Settlement Officer/Tribunal holding certain properties to be an 'estate' under section 3(2) (d) of the 1908 Act was void, was maintainable on the ground that the suit property was not an'inam village'. In <ORG> v. <ORG>,  A.C. 260, the appellants sought a declaration of their common law right to quarry their land without the need to obtain planning permission under the Town and Country Planning Act, 1947. In that connection it was said:-

"The appellant company are given no new right of quarrying by the Act of 1947. Their right is a common law right and the only question is how far it has been taken away. They do not uno flatu claim under the Act and seek a remedy elsewhere. On the contrary, they deny that they come within its purview and seek a declaration to that effect."

In spite of the bar placed on the power of the <ORG>. orders passed under such statutes can be examined on "jurisdictional question". To illustrate-, a special machinery has been provided for removal of the encroachments from public land' under different enactments in different states and the jurisdiction of the <ORG> has been barred in respect of the orders passed by such special tribunals or authorities constituted under such Acts. Still a suit will be maintainable before a <ORG> on a plea that the land in question shall not be deemed to be public land within the meaning of the definition of public land given in the Act in question, and as such provisions thereof shall not be applicable.

In the case of <ORG> v. <ORG>, (1969) 2 AC 147, a wide interpretation has been given to the word 'jurisdiction' by <ORG>. It was pointed out that in many cases where although the <ORG> has jurisdiction to enter upon an enquiry, it has done or failed to do something in the course of such enquiry which is of such a nature that its decision becomes a nullity. By mere reference to different provisions of the Corporation Act it shall appear that the Act does not create any right or liability. Chapter XVI of the Act only purports to regulate the erection of the buildings within the Corporation area, so that erections of the buildings within the Corporation area are systematic, planned and do not adopt the character of mushroom growth. In view of the Provisions of the Act , whenever it is discovered that erection of any building or execution of any work has been commenced or is being carried or has been completed, either without sanction or contrary to the sanction or in contravention of any condition subject to which such sanction had been accorded, the Commissioner can make an order directing that such erection or work shall be demolished. Any person aggrieved by an order has been given a right to prefer an appeal before <ORG> and thereafter to the Administrator. Subject to any order passed by the Appellate <ORG> and the Administrator, the order for demolition shall be deemed to be final and conclusive.

According to us, it cannot be urged that the provisions of the Act have created any right or liability and for enforcement thereof remedy has been provided under the Act itself. The Act purports to regulate the common law right of the citizens to erect or construct buildings of their choice. This right existed since time immorial. But with the urbanisation and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. But as the provisions of the Act intend to regulate and restrict a common law right, and not any right liability created under the Act itself, it cannot be said that the right and the remedy have become given uno flatu e.g. "in the same breath". Most of the cases of this Court referred to above related to statutes creating rights or liabilities and providing remedies at the same time. As such the principles enunciated therein, shall not be fully applicable in the present case. In spite of the bar prescribed under sub-sections (4) and (5) of section 343 and section 347E of the <ORG> Act over the power of the <ORG>, under certain special circumstances, the Court can examine, whether the dispute falls within the ambit of the Act. But once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens. Can a Court hold a suit to be not maintainable, although along with the plaint materials are produced to show that the building in question is not within the <ORG> limits, or that the constructions were made prior to coming into force of the relevant provisions of the Act? We are conscious of the fact that persons who make unauthorised constructions by contravening and violating the building bye-laws or regulations often run to <ORG>, with pleas mentioned above, specially that no notice was issued or served on them, before the <ORG> has ordered the demolition of the construction.

It is well-known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. There cannot be two opinions that the regulations and bye- laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the <ORG>. In some special cases where "jurisdictional error" on the part of the <ORG> is established, a suit shall be maintainable. According to us, (1)The <ORG> should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of section 343 (1) of the <ORG> Act . The <ORG> should direct the persons aggrieved to pursue the remedy before <ORG> and then before the Administrator in accordance with the provisions of the said Act.

(2)The Court should entertain a suit questioning the validity of an order passed under section 343 of the Act. only if the Court is of Prima facie opinion that the order is nullity in the eyes of law because of any "jurisdictional error" in exercise of the power by the commissioner or that the order is outside the Act.

TEMPORARY INJUNCTION It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the <ORG>. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course., Grant of injunction is within the discretion of the <ORG> and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the <ORG> that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The <ORG> grants such relief according to the legal principles--ex debite justitiae. Before any such order is passed the <ORG> must be satisfied that a strong primafacie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. Under the changed circumstance with so many cases pending in <ORG>s, once an interim order of injunction is passed, in many cases, such interim orders continue for months; if not for years. At final hearing while vacating such interim orders of injunction in many cases, it has been discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to continuance of interim orders of injunction without final hearing. It is a matter of common knowledge that on many occasions even public interest also suffers in view of such interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applications. The court should be always willing to extent its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot-be. used to protect or to perpetuate a wrong committed by a person who approaches the <ORG>.

Power to grant injunction is an extraordinary power vested in the <ORG> to be exercised taking into consideration the facts and circumstances of a particular case. The <ORG>s have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in ail cases the <ORG> shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the opposite party, the <ORG> shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay......

It has come to our notice that in spite of the aforesaid statutory requirement, the <ORG> have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that <ORG> has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the <ORG> cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the Proviso aforesaid was introduced, Rule 3 said "the <ORG> shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party". The proviso was introduced to provide a condition, where <ORG> proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the <ORG> "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the <ORG> for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the <ORG> about the gravity of the situation and <ORG> has to consider briefly these factors in the ex parts order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the <ORG> or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance there of will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The <ORG> has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a conditions has been imposed that <ORG> must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the <ORG> shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of <NAME> v. <NAME>. (1875) 1 Ch. D. 426, <CITATION> , AIR 1936 PC 253. This <ORG> has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of <CITATION> , AIR 1975 SC 915. As such whenever a <ORG> considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side. It must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force upto a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme <ORG> Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English <ORG> saying:- "Exparte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion....

An ex parte injunction should generally be until a certain day, usually the next motion day. . . ."

Accordingly we direct that the application for interim injunction should be considered and disposed of in the following manner:-

(i)The Court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the <ORG> or any competent authority of the <ORG> and the order should be passed only after hearing the parties.

(ii)If the circumstances of a case so warrant and where the <ORG> is of the opinion, that the object of granting the injunction would be defeated by delay, the <ORG> should record reasons for its opinion as required by proviso to Rule 3 of order 39 of the Code, before passing an order for injunction. The <ORG> must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the <ORG>. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of order 39 aforesaid If the <ORG> has entered appearance, any such exparte order of injunction should be extended only after hearing the counsel for the <ORG>.

(iii)While passing an ex parte order of injunction the Court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of.

In the result, the appeals are allowed to the extent indicated above. In the circumstances of these cases, there shall be no order as to costs.

VPR. Appeals allowed.


JUDGMENT <NAME>, J.

1. This was a second appeal from a decision of the District Judge of Shahabad dated the 7th March, 1923 modifying a judgment of the Subordinate Judge of the same place dated the 18th February, 1922. The facts in this case were somewhat complicated; but it is unnecessary to refer to them in any great detail as there has been argued before us but one point at the hearing of this appeal. It is sufficient to state that the plaintiffs (who are here the appellants) were the mortgagees of certain property from defendants Nos. I and 4. These mortgages were effected by five deeds. In addition to these five mortgages there were also three other mortgages of which the plaintiffs were not the direct mortgagees but assignees from those who were the original mortgagees. It is only with the five transactions in which the plaintiffs, were the direct mortgagees that we are in this appeal at all concerned. The plaintiffs brought their suit to enforce the mortgages and in addition to joining the mortgagors they also joined certain persons, who were defendants Nos. 8 to 13 who had bought from the mortgagors the equities of redemption of the properties hypothecated by virtue of the five mortgage-deeds referred to above. In the trial Court the plaintiffs succeeded in obtaining a personal decree not only against the mortgagors but also against the purchasers of the equities of redemption. But on appeal the learned District Judge came to the conclusion that the decree, so far as it related to relief against these purchasers of the equities of redemption, could not be in law upheld. He, therefore, set aside that portion of the judgment of the Subordinate Judge and it is from that part of the decision of the District Judge that this appeal has now been brought before us.

2. The simple point therefore, for consideration is whether the plaintiffs could obtain a money-decree against the purchasers of the equities of redemption. It must first be pointed out that in the instruments under which the purchasers of the equities of redemption so purchased, they (the purchasers), stipulated that they would pay off the debts due under the mortgages. It is common ground that they did not do so. It is also common ground that the plaintiffs had no notice of what had taken place between the mortgagors and the purchasers of the equities of redemption and were not privy to the contract. It if important to observe that some support was lent to the argument which was put forward before us by the learned Advocate who has appeared for the plaintiffs by the rulings in the case of <CITATION> 36 Ind. Cas. 792 : 22 C.W.N. 279 : 27 C.L.J. 483. In that case the facts were certainly very similar to those which obtain in this appeal now before us. The defendants had borrowed a sum of money from the plaintiff for which they had given a promissory note; they subsequently transferred their property to another party who executed an agreement in their favour expressly undertaking to pay to the lender of the money under the promissory note his dues thereunder. The lender of the money under the promissory note was no party to this contract and had no notice thereof; but, having ascertained the circumstances, he proceeded to sue the borrowers as well as the individual who had purchased the borrowers' property. He claimed that, in view of the agreement entered into between the borrowers and the purchasers of the borrowers' property, he (the lender) was entitled to take advantage of that agreement. <NAME> and <NAME>, JJ., of <ORG> held that the plaintiff was entitled to enforce his claim against the purchaser of the borrowers' property.

3. Had the matter rested there, one might have thought that this case would constitute an authority in favour of the proposition argued in the present instance. There are also other cases which have been quoted by the learned Advocate for the appellant which, certainly at first sight appear to support to some extent the learned Advocate's argument. In the case of <CITATION> 7 Ind Cas. 237 : 32 A. 410 : 14 C.W.N. 865 : 7 A.L.J. 871 : (1910) : M.W.N. 313 : 8 M.L.T. 147 : 12 C.L.J. 205 : 12 Bom. L.R. 638 : 20 M.L.J. 914 : 37 I.A. 152 (P.C.) their Lordships of <ORG> held that under certain circumstances (to which I shall refer presently) it was possible for a person who was no party to an agreement to take advantage of the provisions of such an agreement which were in fact beneficial to herself. Their Lordships' decision (which was given by the "Right Hon'ble Mr. <NAME> relates the facts at some length. Put very shortly, they were as follows. A minor Muhammadan lady, prior to and in consideration of her marriage with the son of the defend, ant in the suit, was promised by the defendant under an agreement executed between the defendant and the lady's father to be-paid by the defendant the sum of Rs. 500 per mensem from the date of her reception in marriage; the defendant also charged certain specified properties for the purpose of producing the requisite funds. The lady, as I have stated, was a minor; but, eventually, after the marriage, lived with her husband for sometime; owing, however, to disagreement she, at the end of some 12 of 13 years ceased so to do. The defendant then refused to continue to pay the allowance and the lady accordingly brought the suit against him basing her claim upon the document of agreement which had been entered into between the defendant and her (the plaintiff's) father. It was maintained on behalf of the defence on the line of reasoning adopted in the well-known English case Tweddle v. <NAME> (1861) 1 B. & S. 393 : 30 L.J.Q.B. 265 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 124 R.R. 610, that as the plaintiff was in no way an actual party to the agreement, made between her father and the defendant, she had no locus standi and was unable to sue thereunder. Mr. <NAME>, however, pointed out that the case of Tweddle v. <NAME> (1861) 1 B. & S. 393 : 30 L.J.Q.B. 265 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 124 R.R. 610, was one decided under the Common Law of England and was not in their Lordships' opinion applicable to the facts which were disclosed in the case before their Lordships. Their Lordships were of opinion that although no party to the agreement (and it must be remembered that the lady was then a minor and the document was executed by her father) she was clearly in equity entitled to enforce her claim against the defendant. The case, however, appears to me to be distinguishable from the present case in view of the fact that the benefit which was to accrue to the plaintiff was one for which the consideration was the marriage to take place between herself and the defendant's son. Then there is another case which was cited on behalf of the plaintiffs: <NAME> v. <NAME> 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603. In that case <NAME>, <NAME>, and <NAME>, J., held that where the transferee of a debtor's liability acknowledged in the provisions of the registered instrument which conveyed to him all the original debtor's properties, his obligation Lo the creditor for the debt to be paid by him and where the acknowledgment was communicated to the creditor and accepted by him, the creditor could sue the transferee on the registered instrument. Here again their Lordships based their decision upon the equitable principle which had operated upon the minds of their Lordships of <ORG> in the case which I have just quoted. Here in this case of <NAME> v. <NAME> 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 it may indeed be said that the facts disclosed that the creditor was actually privy to and concerned in the transaction which took place between the transferee and the debtor. In fact in the judgment of <NAME>, <NAME> it is expressly stated that there was an arrangement between the plaintiff and defendant No. 5 by which the liability of defendant No. 5 under the transfer was acknowledged and accepted and it may also be observed that (although under the mistaken idea of their true legal effect) certain title deeds were actually handed over at that time by the purchaser to the plaintiff. Although therefore, the last two cases quoted seem to be based upon considerations some what different from those which have to be regarded in the present appeal, there is no doubt, as I have said before, that the case reported as <CITATION> 36 Ind. Cas. 792 : 22 C.W.N. 279 : 27 C.L.J. 483 does constitute some authority to support the argument which has been addressed to us by the learned Advocate who has appeared for the appellants. There are, however, on the other hand two: cases which appear to be conclusive authority upon the point which has been argued, in this appeal. The first of these, is <CITATION> 13 Ind. Cas 304 : 34 A. 63 : 16 C.W.N. 97 : 11 M.L.T. 6 : 9 A.L.J. 37 : (1912) M.W.N. 32 : 15 C.L.J. 68 : 14 Bom. L.R. 1 : 21 M. L.J. 1151 : 391. A. 7 (P.C.). It is a decision of their Lordships of <ORG> and although the facts are not set out, at any great length in the report they can be found fully reported as <CITATION> 2 Ind. Cas. 460 : 31 A. 352 : 6 A.L.J. 427. It will be seen, from a perusal of the facts as given in that report, that the circumstances, were almost, the same as those which obtain in, the present appeal. The judgment of their Lordships of <ORG> delivered by Lord <NAME> is very short and very much in point here. His Lordship observes: "This is a perfectly plain case. The action is brought by a mortgagee to enforce against purchaser of the mortgaged property, an undertaking that he entered into with his vendor."

4. I may pause here to observe that the undertaking referred to was to the effect that the purchaser would pay off the debt due to the mortgagee by the person from whom the purchaser had-purchased the property. His Lordship continues: "The mortgagee has no right to avail himself of that. He was no party to the sale. The purchaser entered into no contract with him, and the purchaser is not personally bound to pay his mortgage debt."

5. There is still a later case in which the same proposition has been similarly set forth in another decision of their Lordships of <ORG>. In that case, <NAME> v. <NAME> 95 Ind. Cas. 970 : 3 P.L.T. 637 : SS C.W.N. 771 : A.I.R. 1923 P.C. 54 (P.C.) the facts again are in that report but very. shortly set out. We have had the advantage, however, of seeing what, the facts were from the record of this <ORG>, the case having been tried on appeal on the 7th June 1918 before <NAME> and <NAME>, JJ. The facts were substantially identical with those which exists in the present appeal; A mortgagor having executed a mortgage in favour of the plaintiff sold the property to a third party who, in the recitals of this sale-deed agreed to pay off the mortgage with a provision of the purchase-money which, was; for that purpose left in his hands. The mortgagee sued upon his mortgage, not only the mortgagor but also the purchaser; but this <ORG> refused to grant any personal decree against the purchaser, holding that he (the mortgagee) could not avail himself of the stipulation made in the contract between the purchaser and the mortgagor. Their Lordships of <ORG> uphold the decision of this <ORG>, Lord <NAME> in a very short judgment stating. "Their Lordships have considered this case, and they think it is clear that no personal liability was incurred by the purchasers of the equity of redemption. Their Lordships, therefore, think that the decree of the High <ORG> was right and that the point made by the appellant fails." It may be observed that in the judgment given by this <ORG> our the 7th June 1918, the cases to which I have-referred above were mentioned and quoted.

6. It seems, therefore, that we are clearly bound by the authority of these two decisions of <ORG> which are so directly in point.

7. The appeal, therefore, must be dismissed with costs. I should mention that there was a cross-objection which, however, is not pressed and has not been argued and that cross-objection also must be dismissed with costs.

8. It is said by the learned Advocate who has appeared for the appellants (and it may be mentioned that the question is referred to in ground No. 7 of the appellants' grounds of appeal to this Court) that there has been some arithmetical or other mistake with regard to the amount of costs which have been awarded to the defendants Nos. 8 to 13. It was suggested that, as this question had been made a ground of appeal it might be dealt with in this Court. We have, however, no materials whatever before us which would enable us to discuss or consider this point. If there has been any mistake in regard to the quantum of costs, that matter should be referred to and dealt with by the lower <ORG>.

<NAME>, <NAME>

9. I agree. The difference between the case quoted in <NAME> v. <NAME> 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 and the last cases quoted by my learned brother from 34 Ali. 63 and 3 Pat. L.T. 637 appears to me to be very important in connection with the facts of the present case. It is to be borne in mind that in the present case there was no notice to the plaintiff at the time of the contract. In the judgment of <ORG>, we see that the promisee that is to say, the plaintiff, had a proposal made to him by the promisor, that is to say, defendant No. 5, and he accepted it. So in that case the promisee was in the position indicated in Section 2 of the Indian Contract Act. He held the benefit of a contract for consideration. In the present case the plaintiff, who claims to be the promisee, has never had a proposal made to him by the defendants against whom he is seeking a money-decree and he certainly never accepted any such proposal. Therefore, Section 2 does not bring him into the position of a person who can sue a promisor upon a contract or for consideration. That is the distinction between the two classes of cases, and I think the present case falls within the class indicated in the <ORG> cases which have been quoted. There may be a third class of cases in the judgments which, we have been studying, namely, the class in which minors or other third parties sue under family or marriage settlements. In such cases as those, the plaintiff can hardly be regarded as a promisee who has accepted any proposal or promise, and such casesare probably decided on the traditional principles governing <ORG> rather than by any application of the terms of Section 2 of the Indian Contract, Act. If I am correct, this third class would, I think, be exemplified by the case of <NAME> v. <NAME> 7 Ind Cas. 237 : 32 A. 410 : 14 C.W.N. 865 : 7 A.L.J. 871 : (1910) : M.W.N. 313 : 8 M.L.T. 147 : 12 C.L.J. 205 : 12 Bom. L.R. 638 : 20 M.L.J. 914 : 37 I.A. 152 (P.C.).