Kausar Ali v. Sad Ik Ali — 1991 DIGILAW 445 (CAL)

JUDGMENT 1. THIS application under section 115 of the code of Civil Procedure is directed against the order no. 8 dated 19th January, 1991, passed by the Learned Assistant District Judge at Sealdah in Misc. Appeal no. 144 of 1990 arising out of Title Suit No. 151 of 1990. The plaintiff opposite party filed a Title Suit being Title Suit No. 151 of 1990 in the Court of the learned Second Munsif, Seamah, Dist. 24-Pags. (South), inter alia, praying a temporary injunction restraining the defendant opposite party therein, from creating any obstruction and for full and true general account of the partnership business for the years 1974-1989 and other reliefs. In connection with the said Suit, an application under order 39 Rules 1 and 2 of the Code of Civil Procedure, hereinafter referred to as the Code, was also filed before the learned Trial Court and an exparte order of status quo in respect of the business was passed by the learned Munsif. 2. THE short case of the plaintiff is that a hair cutting saloon under the name and style of "kohinoor Hair Cutting" was run by the father of the plaintiff and the defendants. On the death of the father, the mother of the parties used to run the business and on the death of the mother, the plaintiff and the defendants inherited the business in 1974. Between 1974 and 1989, the defendants were in possession of the suit puberty and were running the business without giving any account to the plaintiff. The plaintiff slates that a settlement was reached by and between the parties and a partnership deed dated November 30, 1989, was entered into by mutual agreement by and between the parties. According to the plaintiff, the defendants failed to give any accounts in the said property for 15 years and were collusively trying to oust the plaintiff from the said business. The defendants, on coming to know of the exparte interim order of status quo, entered appearance in the suit and filed an application under order 39 rule 4 of the Code on March 30, 1990. 3. ON hearing both the parties, the learned Trial Court was pleased to vacate the interim order. The learned Munsif directed the plaintiff to hand-over the saloon to the defendant no. 1 at once and directed that the defendant no. 3. ON hearing both the parties, the learned Trial Court was pleased to vacate the interim order. The learned Munsif directed the plaintiff to hand-over the saloon to the defendant no. 1 at once and directed that the defendant no. 1 would hand-over the possession of the saloon to the defendant no. 2 after a lapse of 4 months from taking over the saloon from the plaintiff. In effect, the learned Munsif directed the parties to have the possession of the saloon in terms of the agreement dated November 30, 1989, until further orders. The learned Munsif also gave liberty to the defendants to pray for accounts for the period for which the plaintiff was in possession of the saloon for the extra period after expiry of 9 months of his term. By the aforesaid order, both the application of the plaintiff under Order 39 Rules 1 and 2 read with section 151 and that of the defendant petitioner under Order 39 Rule 4 read with section 151 of the Code were disposed of. 4. BEING aggrieved by and dissatisfied] with the aforesaid order no. 21 dated september 12, 1990, of the learned Trial Court, the plaintiff preferred an appeal which was numbered as Misc. Appeal No. 144 of 1990. The learned appellant District Judge, Sealdah, disposed of the said appeal by allowing the same and by setting, disposed of the said appeal by allowing the same and by setting aside the order of the learned Trial Court passed on September 12, 1990. Being aggrieved by the aforesaid appellate order the defendant petitioner has moved the High Court under Section 115 of Code. The first point urged by the petitioner was that the order passed by the learned Munsif was not appealable, inter alia, on the ground that the order passed was not one under order 39 Rules 1 and 2 or Rule 4 but an order under Section 151 as the order went beyond the scope of the application under Order 39 Rules 1 and 2. In support of his contention, the petitioner cited the case of Mohohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Meralal, reported in AIR 1862 SC 527. In the said case, it was held, inter alia, that temporary injunction can also be issued in any case not covered under the provisions of Rules 1 and 2 of order 39. In support of his contention, the petitioner cited the case of Mohohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Meralal, reported in AIR 1862 SC 527. In the said case, it was held, inter alia, that temporary injunction can also be issued in any case not covered under the provisions of Rules 1 and 2 of order 39. It was further held that the provisions of Section 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. The petitioner also cited the case ofrathindra Nath Bose vs. Jyoti Bikash Ghosh and ors. reported in AIR 1975, Cal. 377. wherein the earlier case of Monohar Lal chopra (supra) was cited. The said Calcutta decision, paraphrased. The decision in Monohar Lal Chopra (supra) in the following language : - (i) there is nothing in section 94 which expressly prohibits issue of temporary injunction in the circumstances not covered by order 39 or by any Rules made under the: Code; (ii) the Court has inherited power to issue injunction in circumstances not covered by order 39 or any Rules under the Code; (iii) "if it is so prescribed" in section 94, means the circumstances prescribed under any Rules under the Code and the Rules include order 39, so that an injunction under Section 94 is circumscribed to circumstances contemplated under the Rules. 5. THIS discussion became necessary in view of the submission made by the opposite party to the effect that in an application under Order 39 Rules 1 and 2 the Court can either allow the application, reject the application or pass an order of status quo relating to the subject matter of the suit as on the date of institution of the suit but can not pass an order relegating the parties to a position which existed before the institution of the suit itself. 6. IN support of the said contention, the opposite party referred to the case of Khushre S. Gandhi and Ors. vs. N. A. Guzder and Ors. , reported in AIR 1970, SC 1468. The said case is an authority for the propositon, inter alia, that the High court, in revision, cannot try other issues arising in the cases even if the parties conceded to the same, unless the High Court in exercise of the powers under Section 24 of the Code, withdraws the suit unto itself. , reported in AIR 1970, SC 1468. The said case is an authority for the propositon, inter alia, that the High court, in revision, cannot try other issues arising in the cases even if the parties conceded to the same, unless the High Court in exercise of the powers under Section 24 of the Code, withdraws the suit unto itself. The said case is not very relevant for the purpose of the present case inasmuch as the High court in the instant revisional application is not even trying to decide any issue whatsoever. It is merely scrutinizing the order passed by the Court of appeal below and incidently the order passed by the learned Trial Court. The other case cited by the opposite parties is the case of Nandan Pictures Lid and Ors. vs. Art Pictures Ltd. and Ors. , reported in AIR 1956, Cal. 428, wherein it was laid clown by the Division Bench of this Court, inter alia, that it is only in very rare cases that a mandatory injunction granted on an interlocutory application and instances where such an injunction is granted by means of an "ad interim" order pending the decision of the application itself are almost unknown. In the instant case, it appears that the order passed by the learned Munsif was not an order passed in exercise of the powers conferred upon it under Order 39 rules 1 and 2 but under Section 151 in the interest of justice equity and good conscious. The petitioner has referred to the case of Mrs. Bijoy Sri Batara vs. M/s. Mirahul Enterprise and Ors. , reported in AIR 1988. Del. 140, wherein it was held, inter alia, that an appropriate case mandatory injunction can be granted on inter locutory application after notice to defendant and after hearing the parties. 7. THE petitioner also referred to the case of Babun Narayan Landge vs. Mahadu Bhikaji Tenchar and Ors. , reported in AIR 1989, Bom. 247, wherein it has been held, inter alia, that a Civil Court can issue, at an interlocutory stage, a mandatory injunction so as to restore the status quo anterior to the date of institution of a suit. 8. IN both the views of the matter, viz. , reported in AIR 1989, Bom. 247, wherein it has been held, inter alia, that a Civil Court can issue, at an interlocutory stage, a mandatory injunction so as to restore the status quo anterior to the date of institution of a suit. 8. IN both the views of the matter, viz. , that no appeal lay to the District judge from the order passed by the learned Trial Court in view of the fact that the order of injunction was not passed under Order 39 Rules 1 and 2 of the code as also in view of the fact that mandatory interim orders can be issued by the Trial Court at the interlocutory stage, the order impugned in the application has to be set aside. However, it is now cell-settled that [practice and procedure are but hand maidens of Justice and cannot be allowed to become its jealous mistress. It is equally true that a law suit is not a mere moot or debate but is a sincere attempt to arrive at the truth. 9. THE learned Munsif in passing the order which was impugned before the learned Court of appeal below, took into consideration the overall interest of justice and in fact has confined the parties to the suit within the four corners of the agreement dated November 30. 1989, on which the plaintiff himself heavily relied. 10. IN view of the discussion made above it appears that there is considerable force behind the argument advanced by the petitioner and the petition on that ground has to be allowed. In the result, this application succeeds and is allowed. The impugned judgment and order passed on january 19, 1991, by the learned Court of appeal below is hereby set aside and the order of the learned Munsif passed on September 12, 1990, in Title Suit no. 151 of 1990 is hereby affirmed. There will be no order as to costs. Application allowed.