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2003 DIGILAW 182 (GAU)

Abdul Noor v. Maruti Roadways

2003-04-29

AMITAVA ROY

body2003
JUDGMENT Amitava Roy, J. 1. Heard Mr. N. Choudhury, learned counsel for the petitioner and Mr. Gour, learned counsel of the respondents. 2. The present petition is directed against the order dated 3.8.1999 passed by the learned lower appellate court in Misc. Appeal No. 24/97 affirming the order dated 12.8.1997 passed by the learned trial court in Misc. Case No. 48/97 arising out of T.S. No. 104/97 rejecting the prayer for temporary injunction for restraining the opp. party from taking the possession/custody of the suit vehicle from petitioner/plaintiff. 3. Briefly stated the relevant facts are that the petitioner had instituted T.S. No. 104/97 before the learned Civil Judge (Jr. Divn.) No. 1, Karimganj praying for a decree for a declaration that he is the owner in possession of the vehicle bearing No. AS. 10/0599 and that the opp. party/defendants have no rights over the same. He further prayed for injunction for restraining them from disturbing the petitioner's possession of the said vehicle. According to the petitioner, he had purchased the said vehicle from Moinuddin for valuable consideration and thereafter he got the same registered, in his name. He had to take a loan of Rs. 35,000 for the purpose of repairs of the vehicle from the opp. party No. 3. He liquidated the said loan with interest. As the opp. party No. 2 and 3 for illegal gain sought to take the vehicle forcefully, he filed the present suit. The petitioner also filed an application for temporary injunction registered as Misc. Case 48/97. Initially the learned trial Court granted an order of status-quo, but eventually it rejected the prayer for injunction and vacated the order of status-quo. Misc. Appeal 24/97 preferred by the present petitioner was also dismissed by the order impugned herein. Mr. Choudhury, learned counsel for the petitioner, while assailing the impugned order has argued that the learned court below erred in dismissing the appeal by overlooking the fact that the petitioner was the owner of the vehicle and that the opp. party had no semblance of right to claim possession/custody thereof. According to him the learned lower appellate court totally misread the evidence on record and therefore the impugned order is perverse and is liable to be interfered with. On the other hand, Mr. Gour submitted that from the impugned order it reveals, that vehicle was on a hire purchase agreement between the petitioner and the opp. According to him the learned lower appellate court totally misread the evidence on record and therefore the impugned order is perverse and is liable to be interfered with. On the other hand, Mr. Gour submitted that from the impugned order it reveals, that vehicle was on a hire purchase agreement between the petitioner and the opp. party No. 1 and that the petitioner had failed to pay the required instalments after the 7th instalment and that therefore the petitioner had no right to retain the possession any further under the said agreement and therefore the learned trial court rightly refused the injunction. Mr. Gour, referring to the impugned judgment and order further argued that before the suit was filed, the opp. party No. 1 had filed an application under the Arbitration and Conciliation Act, 1996 before the City Civil Court, Calcutta praying for an order inter alia, for custody of the vehicle. He submitted that in fact, an order appointing a receiver for taking possession of the vehicle was passed therein but in view of the order of status-quo granted by the learned trial court, the said order could not be given effect to. In that view of the matter, Mr. Gour argued that the petitioner not being the owner of the vehicle, he had not right to have his possession of the vehicle safeguarded by an order of injunction. I have carefully perused the order passed by the learned trial court as well as judgment and order of the learned lower appellate court. It transpires therefrom that both the courts below have exhaustively considered the materials available on record and have come to well reasoned findings supported by documentary evidence. The view taken is a plausible one. The order impugned before this court, does not reveal any perversity or manifest illegality touching the jurisdiction of the court below warranting interference under Section 115 CPC. Keeping in view the fact that the arbitration proceeding as well as the suit is still pending, as is submitted at the bar, it will not be proper to express any opinion on the merits of the case of the parties at this stage. Suffice it to mention that considering the materials on record. I do not find any ground to interfere with the impugned order and accordingly the petition is dismissed. The interim order passed earlier stands vacated. Suffice it to mention that considering the materials on record. I do not find any ground to interfere with the impugned order and accordingly the petition is dismissed. The interim order passed earlier stands vacated. Needless to say that as the suit is of the year 1997, an endeavour should be made to resolve the controversy between the parties expeditiously. The learned trial court is therefore requested to take up the suit for early disposal, preferably within a period of 6 months from the date of receipt of this order. Petition dismissed