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1992 DIGILAW 420 (SC)

PARBATI DEVI JAISWAL v. KEDAR LAL JAISWAL

1992-05-01

K.RAMASWAMY, N.M.KASLIWAL

body1992
( 1 ). Special leave granted. ( 2 ). The facts of the case are that the said premises were leased out by sourendra Nath Mukherjee and Rabindra Nath Mukherjee in favour of a partnership firm, namely, M/s Thakurdin Ramjosh as back as on 7/9/1949. A partition took place between Sourendra Nath Mukherjee and Rabindra Nath mukherjee by virtue of a written deed of partition dated 16/7/1962. The property in question was allotted to the share of Sourendra Nath Mukherjee. Sourendra Nath Mukherjee then filed a Suit No. 636 of 1968 on 19-9-1968 in the City Civil court, Calcutta against the partnership firm, namely, M/s thakurdin Ramjosh for recovery of possession of the premises. ( 3 ). The suit was decreed in favour of the plaintiff on 13/4/1973. M/s thakurdin Ramjosh through Kedar Lal Jaiswal filed an appeal in the High court. During the pendency of the appeal, Sourendra Nath Mukherjee executed a lease for 99 years in favour of the appellants on 10/3/1979 on receipt of , premium amounting to Rs. 1,32,125. 00. Subsequently, by a Deed of Conveyance dated 16/11/1979, the said Shri Sourendra Nath Mukherjee sold, conveyed and transferred all his rights, title, interest in the suit property in favour of the appellants and by virtue of the said purchase the appellants became the absolute owners of the suit property. The appellants filed an application in the High court for adding them as parties. The High court after hearing the parties allowed the appellants to be added as parties in the appeal. It is pertinent to mention that there was no objection from the respondent, Kedar lal Jaiswal, who was pursuing the appeal on behalf of the partnership firm. The division bench of the Calcutta High Court dismissed the appeal filed by the partnership firm M/s Thakurdin Ramjosh through Kedar Lal Jaiswal by order dated 1/12/1981. This litigation attained finality as no further appeal waspreferred before this court by Kedar Lal Jaiswal or the partnership firm. The appellants before us then filed an application for the execution of the decree passed in the said Suit No. 636 of 1968. In the execution case, a Miscellaneous application No. 242 of 1983 was filed by the appellants for execution of the said decree with the help of police. Kedar Lal Jaiswal (Respondent 1 in his individual capacity and also as the partner of M/s Thakurdin Ramjosh filed objection. In the execution case, a Miscellaneous application No. 242 of 1983 was filed by the appellants for execution of the said decree with the help of police. Kedar Lal Jaiswal (Respondent 1 in his individual capacity and also as the partner of M/s Thakurdin Ramjosh filed objection. Kedar Lal Jaiswal also filed an application under Section 144 (2 of the Code of Criminal Procedure on 24/12/1987 before the Metropolitan magistrate and in the said application clearly admitted that the appellants were the owners of the premises in question. ( 4 ). Pradip Kumar Jaiswal, the son of Kedar Lal Jaiswal then filed a title Suit no. 144 of 1988 in the City Civil court, Calcutta on 1/2/1988. He also submitted an application for temporary injunction which was dismissed on 3/2/1988 by the trial court. An appeal against that order was dismissed by the calcutta High court and special leave petition filed before this court was also dismissed by order dated 20/12/1990. ( 5 ). Kedar Lal Jaiswal in the meantime also filed a separate Suit No. 193 of 1988 in the City Civil court on 9/2/1988. The City Civil court on 2/2/1990 passed an order of temporary injunction in the suit filed by Kedar Lal Jaiswal and restrained the appellants from executing the decree passed in the Civil Suit no. 636 of 1968 which had already become final as mentioned above. An appeal against the order of 2/2/1990 of the City Civil court was dismissed by the High court on 22/3/1991. In these circumstances, the appellants have filed this appeal challenging the order of the High court dated 22/3/1991. ( 6 ). We have heard learned counsel for the parties at length and have perused the record placed before us. Normally, this court does not interfere against interlocutory orders passed on applications for temporary injunction. However, in the facts and circumstances of the present case, we are fully convinced that there is a clear abuse of process of the court in granting temporary injunction in favour of the respondents and restraining the appellants from executing the decree passed in their favour in Civil Suit No. 636 of 1968. The facts mentioned above clearly show that Kedar Lal Jaiswal had contested the Suit No. 636 of 1968, but ultimately it resulted in favour of the appellants in the High court when the appeal was dismissed as back as on 1/12/1981. The facts mentioned above clearly show that Kedar Lal Jaiswal had contested the Suit No. 636 of 1968, but ultimately it resulted in favour of the appellants in the High court when the appeal was dismissed as back as on 1/12/1981. Mr Harish Salve, learned Senior Counsel appearing for Respondent 1 Kedar Lal Jaiswal vehemently contepded that the case set up by the plaintiff Kedar Lal in the present suit is that the property in question was purchased by the appellants through a joint family fund and the plaintiff being a co-owner cannot be evicted in execution of any decree passed in Suit No. 636 of 1968. We do not want to express any opinion on the aforesaid stand taken by Kedar Lal Jaiswal as the same would be decided finally on the merits of the suit. We are at present only concerned whether any temporary injunction could at all be passed in favour of kedar Lal Jaiswal restraining the appellantsfrom executing the decree passed in suit No. 636 of 1968 which had attained finality as long back as on 1/12/1981. The present appellants after having purchased the property from Sourendra nath Mukherjee had filed an application for impleading them as party in the appeal pending before the High court against the decree for possession passed in Suit No. 636 of 1968. Kedar Lal Jaiswal did not file any objection against theimpleadment of the appellants as parties in the said litigation. Not only that kedar Lal Jaiswal in an application filed under Section 144 (2 of the Code of criminal Procedure on 24/12/1987 clearly admitted that the appellants were the owners of the premises in question. Thereafter Pradip Jaiswal son of Kedar Lal jaiswal filed a suit on 1/2/1988 and his prayer for obtaining temporary injunction restraining the appellants from executing the decree passed in Suit no. 636 of 1968 came to be dismissed by the trial court as well as by the High court and a special leave petition was also dismissed by this court on 20-12- 1990. Kedar Lal Jaiswal also filed a civil suit on 9/2/1988 and the City Civil court by order dated 2/2/1990 granted a temporary injunction in favour of kedar Lal Jaiswal restraining the appellants from executing the decree passed in the Civil Suit No. 636 of 1968 which had already attained finality as back as on 1/12/1981. Kedar Lal Jaiswal also filed a civil suit on 9/2/1988 and the City Civil court by order dated 2/2/1990 granted a temporary injunction in favour of kedar Lal Jaiswal restraining the appellants from executing the decree passed in the Civil Suit No. 636 of 1968 which had already attained finality as back as on 1/12/1981. An appeal against the order dated 2/2/1990 has been dismissed by the High court by the impugned order dated 22/3/1991. It appears that in the impugned order the High court simply mentioned that it did not think proper to make any comments about the merits of the case and accordingly dismissed the appeal. The High court then directed to hear the suit within four months from the date of communication of their order. We are fully convinced that there would be a gross miscarriage of justice in granting temporary injunction and restraining the appellants from executing the decree passed in their favour in suit No. 636 of 1968. It may be noted that though a direction was given for hearing the suit within favour months from the date of the order i. e. 22/3/1991 but as informed by the learned counsel for the appellants, the proceedings in the suit have not gone beyond the stage of framing issues. We find no valid ground or justification in restraining and depriving the appellants from reaping the fruits of the decree passed in their favour after long-drawn litigation and it is a case of an abuse of the process of the court in passing the impugned order by the City civil court on 2/2/1990 and affirmed by the High court by order dated 22/3/1991. ( 7 ). In view of the above circumstances, we allow this appeal, set aside the judgment of the High court dated 22/3/1991 and that of City Civil court dated 2/2/1990 and dismiss the application for temporary injunction filed by the plaintiff/respondent Kedar Lal Jaiswal. It is, however, made clear that no observations made above shall in any manner affect the rights of the parties to be decided in the main suit. The trial court is directed to complete the hearing of the suit as expeditiously as possible. No order as to costs.