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1997 DIGILAW 72 (GAU)

Debasish Majumdar and another v. Saha Brothers, West Tripura, Agartala and others

1997-05-02

A.K.PATNAIK

body1997
Judgement This is a revision under Section 115 of the Code of Civil Procedure, 1908, against the judgment and order dated 23-9-1992 of the learned Additional District Judge, West Tripura Agartala, in Misc. Appeal No. 24 of 1991. 2. The brief facts are that the respondent No. 1, M/s. Saha Brothers, was a partnership firm and the respondent No. 2, Nani Gopal Saha, was one of its partners. Title Suit No. 324/81 was filed by respondent No. 1 for perpetual injunction in respect of the suit land measuring 150 x 170 in Bardwali town adjacent to Bishalgarh Road. The respondent No. 2, Nani Gopal Saha, joined in the said suit as plaintiff No. 2 subsequently by way of amendment of the plaint. The case of respondent No. 1 in the said suit was that it was carrying the agency business of M/s. B.O. C. Ltd. in petrol, kerosene oil, diesel, lubricants, etc. The said business was being carried on the suit land of which Braja Ballav Poddar, the father of respondents 3 to 6, was the owner. On 1-6-1958, Braja Ballav Poddar, leased out the suit land in favour of the 4th partner of M/s. Saha Brothers for the period of 21 years at the monthly rent of Rs. 171/- and under the said lease, the tenants were entitled to continue the tenancy for a further period of 21 years and the landlord was to execute a fresh deed accordingly. Before the expiry of the period of 21 years, respondents 1 and 2 informed Braja Ballav Poddar on 26-5-1978 that they would continue the tenancy and requested him to execute a lease deed accordingly. Braja Ballalv Poddar however did not accede to the said request and instead on 23-4-1989, his sons i.e. respondents 3 to 6 gave a notice to the respondents 1 and 2 to vacate the suit land. Thereafter, respondents 3 to 6 started disturbing the peaceful possession of respondents 1 and 2 over the said suit land in which the latter had constructed pucca building for office room, lubricants dispensing room, store room, machine room, one pucca building for staff quarters with attached latrine and bath room, godown, etc. for carrying on their business. Along with the said suit for perpetual injunction, respondent No. 1 filed a petition for temporary injunction which was registered as Misc. for carrying on their business. Along with the said suit for perpetual injunction, respondent No. 1 filed a petition for temporary injunction which was registered as Misc. Case No. 403/81, and the learned trial Court initially passed an ad-interim injunction order dated 6-11-1981 restraining Braja Ballav Poddar and respondents 3 to 6 from entering into the suit land or disturbing the respondent No. 1 in peaceful enjoyment of the suit land. After two years, the learned trial Court made the said ad interim order of injunction absolute by its order dated 4-3-1983. Against the said order dated 4-3-1983, respondents 3 to 6 filed an appeal in the Court of the learned District Judge, but the same was dismissed and the order of temporary injunction was upheld. During the aforesaid period when the temporary injunction order was in force, the respondent No. 1 filed Misc. Case No. 79/87 under Order 39, Rule 2-A of the Code of Civil Procedure, 1908, complaining that the respondents 3 to 6 dispossessed the respondent No. 1 of the portion of the suit property and had violated the order of temporary injunction. While the said Misc. Case No. 79/87 was pending, the respondents Nos. 1 and 2 filed another Misc. Case No. 6/91 alleging therein that the respondents 3 to 6 had entered into an agreement on 17-12-1990 with the petitioner No. 1 , Debasish Majumdar for leasing out the said portion of the suit property from which the respondent 1 was dispossessed and the petitioner No. 1 had started business of selling petroleum products in the said portion of the suit property with effect from 12-4-1991 as an authorised agent of the petitioner No. 2 , Indian Oil Corporation Limited (Assam Oil Division). In the said Misc. In the said Misc. Case No. 6/91, respondents 1 and 2 contended that the aforesaid activities of the respondents 3 to 6 and the petitioners 1 and 2 amounted to violation of the order of temporary injunction dated 6-11-1981 which was made absolute on 4-3-1983 and prayed for a temporary injunction restraining the respondents 3 to 6 and the petitioners 1 and 2 from entering into the remaining portion of the suit land, and for a mandatory injunction to direct the respondents 3 to 6 and the petitioners 1 and 2 to withdraw from the aforesaid portion of the suit land in which they had entered in violation of the orders of temporary injunction. After hearing the parties the learned trial Court dismissed the said Misc. Case No. 6/91 by its order dated 16-9-1991. Aggrieved, the respondents 1 and 2 filed the aforesaid Misc. Appeal No. 24/91 and the learned Additional District Judge, West Tripura, Agartala, after hearing the parties in the said Misc. Appeal held, inter alia, that the respondents 3 to 6 could not violate the order of temporary injunction and enter into the portion of the suit land by giving fresh lease to the petitioner No. 1 and the entire activities of the respondents 3 to 6 and the petitioner Nos. 1 and 2 were illegal and in violation of the order fo temporary injunction, and it was the duty of the Court to set at right the wrong done by evicting the wrong doers from the suit property in which respondents 3 to 6 and the petitioners 1 and 2 had entered in violation of the order of temporary injunction. Learned Additional District Judge, therefore, issued a mandatory injunction on respondents 3 to 6 and the petitioners 1 and 2 to restore the possession of the aforesaid part of the suit land to respondents 1 and 2, and allowed the appeal. The petitioners 1 and 2 have challenged the said judgment and order dated 23-9-1992 of the learned Additional District Judge, West Tripura, Agartala, allowing the appeal and granting temporary mandatory injunction in favour of respondents 1 and 2 in this revision petition. 3. At the hearing of this revision petition, Mr. The petitioners 1 and 2 have challenged the said judgment and order dated 23-9-1992 of the learned Additional District Judge, West Tripura, Agartala, allowing the appeal and granting temporary mandatory injunction in favour of respondents 1 and 2 in this revision petition. 3. At the hearing of this revision petition, Mr. B.B. Deb, learned counsel appearing for the petitioner No. 1, vehemently argued that in reply to the interrogatories in Title Suit No. 324/81, the respondent No. 1 had admitted that the partnership firm, M/s. Saha Brothers was dissolved in the year 1975 and yet the said Title Suit was filed in the year 1981 by the so called M/s. Saha Brothers which did not have any existence. Subsequently, in the year 1991, the plaint was amended and Nani Gopal Saha claiming to be a partner of the erstwhile M/s. Saha Brothers was added as plaintiff No. 2 in the said suit and the other partners of the erstwhile firm M/s. Saha Brothers were impleaded as pro forma defendants. These admitted facts, according to Mr. B.B. Deb, would show that the suit was filed on behalf of a non-existent firm in the year 1981 and even thereafter only one partner, namely, Nani Gopal Saha had joined in the suit as plaintiff No. 2 in the year 1991 and the other partners had not joined the suit as plaintiffs. Such a suit was, therefore, not maintainable under the law and the learned Additional District Judge ought not to have issued the order of temporary mandatory injunction in the peculiar facts of the case. Mr. Deb further contended that the only ground on which the learned Additional District Judge has issued the order of temporary mandatory injunction in favour of respondents 1 and 2 is that the earlier orders of ad interim and temporary injunction dated 6-11-1981 and 4-3-1983 had been violated by the respondents 3 to 6 and the petitioners; but the finding of the learned Additional District Judge that the said orders of temporary injunction dated 6-11-1981 and 4-3-1983 had been violated was premature because Misc. Case No. 79/87 in which complaint of violation of the aforesaid orders of the temporary injunction had been made was still pending before the learned trial Court and no finding as such had been recorded in the said Misc. Case No. 79/87 in which complaint of violation of the aforesaid orders of the temporary injunction had been made was still pending before the learned trial Court and no finding as such had been recorded in the said Misc. Case as yet that the said orders of temporary injunction dated 6-11-1981 and 4-3-1983 had been violated. 4. Mr. B. Das, learned counsel appearing for the petitioner No. 2, while supporting the aforesaid contention of Mr. B.B. Deb, learned counsel appearing for the petitioner No. 1, vehemently argued that the suit had been filed and the orders of temporary injunction dated 6-11-1981 and 4-3-1983 had been obtained by the respondent No. 1 by suppressing the fact that the firm, M/s. Saha Brothers, had been dissolved in the year 1975. Since the firm, M/s. Saha Brothers, which had initially filed the aforesaid Title suit as a sole plaintiff was not in existence at the time of filing the suit and at the time when the said orders of injunction were passed, the suit was not maintainable and the said orders of injunction were void in law, and on these facts, no mandatory injunction should have been issued by the learned Additional District Judge by his judgment and order impugned in this revision petition. He cited the judgment of the Supreme Court in the case of T. Arivandandam v. T.V. Satyapal, AIR 1977 SC 2421 , where the Supreme Court has held that where from a reading of the plaint it appears that it is manifestly vexatious, and meritless, the trial Court should exercise its power under Order 7, Rule 11 of the Code of Civil Procedure, and reject the plaint straightway at the first hearing so that a bogus litigation shot down at the earliest stage. According to Mr. Das, the principle laid down by the Supreme Court in the said case applies to the present case and the Court should straightway hold that the suit was not maintainable and vacate the order of temporary mandatory injunction issued by the learned Additional District Judge. 5. In reply to the aforesaid submissions of Mr. B.B. Deb and Mr. B. Das, learned counsel appearing for the petitioners, Mr. 5. In reply to the aforesaid submissions of Mr. B.B. Deb and Mr. B. Das, learned counsel appearing for the petitioners, Mr. A.K. Bhowmick, learned counsel appearing for the respondents 1 and 2, on the other hand, submitted that the question as to whether the suit that was filed by M/s. Saha Brothers, respondent No. 1 and in which Nani Gopal Saha, respondent 2, joined subsequently as plaintiff No. 2 by way of amendment, was maintainable or not is to be decided by the trial Court in the trial. He cited the judgment of the Supreme Court in the case of Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 , in which a suit for recovery of money due under a promissory note was filed by a partner of a dissolved firm, and it was held by the Supreme Court that even if the firm had been dissolved, the effect of dissolution was not to render the firm non existent and it continued to exist for all purposes necessary for its winding up. According to Mr. Bhowmick, learned counsel for the respondents 1 and 2, therefore, a suit can also be filed by a partnership firm which stood dissolved through one of its partners and in the present case Nani Gopal Saha, respondent No. 2, had been allotted the properties which were situated on the suit land by other partners of respondent No. 1 firm. Mr. Bhowmick therefore submitted that the contentions of Mr. Deb and Mr. Das, learned counsel for the petitioners that the suit was not maintainable was not at all correct. Mr. Bhowmick further submitted that violation that was complained of in Misc. Case No. 79/87 was different from the violation that was complained of in Misc. Case No. 6/91; while in Misc. Case No. 79/87, respondent No. 1 alleged that in violation of the orders of injunction dated 6-11-1981 and 4-3-1993, the respondents 3 to 6 dispossessed the respondent No. 1 of the portion of the suit property on 5-8-1987, the case of respondents 1 and 2 in Misc. Case No. 6/91 was that in the year 1991, respondents 3 to 6 inducted the petitioner No. 1 as a new lessee and the petitioner No. 1 started carrying on the business of selling petroleum products as an agent of the petitioner No. 2 in the portion of the suit property with effect from 12-4-1991. Case No. 6/91 was that in the year 1991, respondents 3 to 6 inducted the petitioner No. 1 as a new lessee and the petitioner No. 1 started carrying on the business of selling petroleum products as an agent of the petitioner No. 2 in the portion of the suit property with effect from 12-4-1991. Mr. Bhowmick urged that a reading of the impugned judgment and order of the learned Additional District Judge would show that he issued the order of temporary mandatory injunction against the respondents 3 to 6 and the petitioners 1 and 2 on the ground that they had violated the orders of temporary injunction dated 6-11-1981 and 4-3-1983 issued by the learned trial Court, and the said judgment and order of the learned Additional District Judge was in accordance with the settled position of law that it is the duty of the Court to set right the wrong done by the parties violating the order of injunction issued by the Court. He relied on the judgments of the Calcutta High Court in the cases of Satish Chandra Maity v. Sm. Saila Bala Dassi, AIR 1978 Cal 499 , and Indian Cable Company Ltd. v. Smt. Sumitra Chakraborty, AIR 1985 Cal 248 , for the proposition that the Court has the power under Section 151 of the Code of Civil Procedure to restore possession in favour of the party who had been dispossessed from the suit property in violation of the orders of temporary injunction. Finally, Mr. Bhowmick contended that in a revision, the High Court, is only concerned with errors of the subordinate court relating to jurisdiction and it is a settled position of law that the High Court will not interfere with the findings of fact and law howsoever grave they may be in the judgment and order of the subordinate courts unless the said errors relate to jurisdiction. 6. I find full force in the aforesaid submission of Mr. Bhowmick that the jurisdiction of the High Court in a revision under Section 115, Code of Civil Procedure, is limited to only jurisdictional error. 6. I find full force in the aforesaid submission of Mr. Bhowmick that the jurisdiction of the High Court in a revision under Section 115, Code of Civil Procedure, is limited to only jurisdictional error. In the case of M.L. Sethi v. R.P. Kapur, AIR 1972 SC 2379 , the Supreme Court has held that the jurisdiction of the High Court under Section 115 of the Code of Civil Procedure is a limited one, and that Section 115 of the Code of Civil Procedure is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. This being a revision under Section 115 of the Code of Civil Procedure, this Court cannot interfere with the finding of the learned Additional District Judge under the impugned judgment and order on the questions of fact and law howsoever grave the said errors may be unless they relate to jurisdiction of the Court. 7. Thus, the question that is to be decided in this revision is as to whether the learned Additional District Judge had the jurisdiction to issue the order of temporary mandatory injunction in favour of the respondents 1 and 2. It is not disputed that an ad interim order of injunction was issued by the learned Sadar Munsiff, Agartala, Tripura (W) on 6-11-1981 in Misc. Case No. 403/81 restraining Braja Ballav Poddar and respondents 3 to 6 from interfering with the possession of the respondent No. 1 over the suit premises and the said ad interim order of injunction was made absolute on 4-3-1983 by the said trial Judge. Thereafter, appeals were filed against the said orders of temporary injunction, but the same were dismissed. In the result, the said orders of temporary injunction remained in force. But despite the said orders of temporary injunction, admittedly, the respondents 3 to 6 had inducted the petitioner No. 1 into the suit premises and allowed the petitioner No. 1 to carry on business of selling petroleum products as an agent of the petitioner No. 2. The aforesaid acts of the respondents 3 to 6 and the petitioners 1 and 2 are in gross violation of the orders of temporary injunction dated 6-11-1981 which was made absolute on 4-3-1983. The aforesaid acts of the respondents 3 to 6 and the petitioners 1 and 2 are in gross violation of the orders of temporary injunction dated 6-11-1981 which was made absolute on 4-3-1983. It is on these facts that the learned Additional District Judge has held in the impugned judgment and order that the respondents 1 and 2 who had been dispossessed of the suit premises should be restored to the suit premises by an order of mandatory injunction on the ground that it was the duty of the Court to issue such an order under Section 151 of the Code of Civil Procedure so that the parties are restored to the position which existed before the violation of the Courts orders. 8. In my considered opinion, on the aforesaid facts and circumstances, the learned Additional District Judge was fully within his jurisdiction to issue mandatory injunction restoring the possession of the suit land in favour of respondents 1 and 2. In a recent decision of the Supreme Court in the case of Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 : ( AIR 1996 SC 2005 ), the Supreme Court discussed the law on the point as to whether a contemner should be allowed to enjoy or retain the fruits of his contempt. After considering a large number of authorities on this point including the decisions of Clarke v. Chadburn, (1985) 1 All ER 211, Century Flour Mills Ltd. v. S. Suppiah, AIR 1975 Mad 270 (FB), Sujit Pal v. Prabir Kumar Sun, AIR 1986 Cal 220 , and Mohd. Idris v. Rustam Jehangir Babuji, (1984) 4 SCC 216 : ( AIR 1984 SC 1826 ), the Supreme Court held that the contemner should not be allowed to enjoy or retain the fruits of his contempt. Idris v. Rustam Jehangir Babuji, (1984) 4 SCC 216 : ( AIR 1984 SC 1826 ), the Supreme Court held that the contemner should not be allowed to enjoy or retain the fruits of his contempt. In paragraph 20 of the judgment in the case of Delhi Development Authority (supra), the Supreme Court has discussed the judgment of the Division Bench of the Calcutta High Court in the case of Sujit Pal (supra) in which the defendant forcibly dispossessed the plaintiff in violation of the order f injunction and took possession of the property, and the Court directed restoration of possession to the plaintiff with the aid of police observing that no technicality could prevent the Court from doing justice in exercise of its inherent powers, and that the object of Rule 2-A, Order 39, would be fulfilled only where such mandatory direction was given for restoration of possession to the aggrieved party, and that was necessary to prevent the abuse of process of law. 9. In view of the aforesaid observations of the Apex Court, in my considered opinion, the learned Additional District Judge was fully within this jurisdiction to pass the impugned judgment and order directing restoration of possession of the portion of the suit property in favour of the respondents No .1 and 2. The said judgment and order of the learned Additional District Judge was passed on a complaint of violation of the orders of temporary injunction which took place in the year 1991 by the respondents Nos. 3 to 6 inducting the petitioner No. 1 as a lessee into the portion of the suit property for selling petroleum products as an agent of the petitioner No 2 and not for alleged violation of the said orders of temporary injunction which took place in the year 1987 in respect of which Misc. Case No. 79/87 filed by the respondent No. 1 is still pending before the Court. As has been held by the Apex Court in the aforesaid case of Delhi Development Authority v. Skipper Construction Co. (P) Ltd. ( AIR 1996 SC 2005 ) (supra), the Court will as a matter of duty enforce its orders, if necessary, by overruling any procedural or other technical objections. The said impugned judgment and order of the learned Additional District Judge, therefore, does not suffer from any error of jurisdiction liable to be interfered in this civil revision. (P) Ltd. ( AIR 1996 SC 2005 ) (supra), the Court will as a matter of duty enforce its orders, if necessary, by overruling any procedural or other technical objections. The said impugned judgment and order of the learned Additional District Judge, therefore, does not suffer from any error of jurisdiction liable to be interfered in this civil revision. 10. For the reasons stated above, the Civil Revision is dismissed. But it is observed that the findings in the impugned judgment and order of the learned Additional District Judge as well as in this judgment will not in any way influence the trial Court in deciding Misc. Case No. 79/87 in which, the learned trial Court is yet to record a finding as to whether the respondents 3 to 6 had in any way violated the aforesaid orders of injunction dated 6-11-1981 and 4-3-1983 as alleged by the respondents 1 and 2 in the said Misc. Case. The status quo order passed by this Court on 21-1-1993 stands vacated. However, considering the entire facts and circumstances of the case, I leave the parties to bear their own costs. Revision dismissed.