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2008 DIGILAW 72 (CAL)

Mr. Provat Kumar Mitra v. Mr. Prasanta Mitra

2008-01-18

S.P.TALUKDAR

body2008
Judgment S.P. Talukdar, J. The petitioners by filing the instant application under Article 227 of the Constitution have challenged the order dated 30th June, 2006 passed by the learned Additional District Judge at Sealdah in Misc. Appeal No. 35 of 2005. By the said order, the learned Appellate Court affirmed order No. 26 dated 20th December, 2005 passed by the learned Civil Judge (Jr. Divn.) at Sealdah in Title Suit No. 247 of 2004. The backdrop of the present case may briefly be stated as follows:- The suit premises being No. P-247, C.I.T. Road, Kankurgachi, Kolkata- 700 054 was constructed in the year 1965 by one Binoy Krishna Mitra, since deceased. The fund for construction of such family dwelling house as well as the money required for the purchase of the land from the Calcutta Improvement Trust in the year 1961 was provided for entirely by the said Binoy Krishna Mitra. It was out of his personal savings as well as the profits earned from the family business carried out in the name and style of “India Steam Laundry Private Limited”. His three sons used to work there as employees on the basis of monthly remuneration. The said land was purchased in the name of his wife and three sons. The said Binoy Krishna Mitra died on 31st January, 1974 leaving behind his three sons, namely, the petitioner No. 1, the respondent No.1 and Tarun Kumar Mitra, who were in occupation of the various portions of the suit property. The wife of Binoy Krishna Mitra, since deceased, who was a co-owner of the suit property along with her three sons executed a Will on 30th November, 1999 whereby she bequeathed her 1/4th share of the suit property to O.P. No. 2 being the wife of O.P. No.1. The parties thereafter executed a Deed of Partition by way of a family settlement in respect of the suit property. The areas under their respective occupation were demarcated. The said Deed of Partition contains a pre-emption clause restraining any of the co-owners from alienating and/or selling the property to outsiders. The parties thereafter executed a Deed of Partition by way of a family settlement in respect of the suit property. The areas under their respective occupation were demarcated. The said Deed of Partition contains a pre-emption clause restraining any of the co-owners from alienating and/or selling the property to outsiders. The said pre-emption clause is set out as follows:- Clause- 4 – “If any party intends to sell, mortgage or otherwise transfer hereafter his/her respective shares in the partitioned property allotted to each party or part of it, the other parties will have right of pre-emption and/or first right to purchase or acquire the same from the party intending to transfer the same and in case none of the other parties intends to exercise the rights of pre-emption or to purchase the said share within one month from the date of service of notice thereof then the party concerned may sell his/her respective allotted share to an outside purchaser. In case more than one party is willing to purchase the said portion then the highest offer amongst the parties hereto will be accepted.” Defendant No. 1 suffered a severe cerebral attack in the year 1996 which virtually left him partially paralyzed and he lost his power of speech and comprehension. Defendant No. 2, on the basis of an alleged Power of Attorney, said to have been granted in her favour by her husband being the defendant No.1, after he suffered his cerebral attack, started negotiating with outsiders for the sale of her share as well as the share of her husband in the suit property contrary to the pre-emption clause as contained in the Deed of Partition dated 4.5.2001. Defendant No.2 in exercise of the General Power of Attorney granted to her by the petitioner No. 1 obtained purported undated letters of consent for the sale of her share as well as the share of the Defendant No. 1 in the suit property to outsiders. The petitioner No. 1 upon coming to know of the same immediately revoked the Power of Attorney and also the purported letter of ‘No Objection’ which was being misutilised by the defendant No.2. Such revocation was also duly communicated to defendant No.2. The petitioners approached the Civil Court with the prayer for declaration that defendant Nos. The petitioner No. 1 upon coming to know of the same immediately revoked the Power of Attorney and also the purported letter of ‘No Objection’ which was being misutilised by the defendant No.2. Such revocation was also duly communicated to defendant No.2. The petitioners approached the Civil Court with the prayer for declaration that defendant Nos. 1 and 2 have no right or authority to sell or alienate the portions of the suit premises as described in Schedule ‘A’. They also prayed for a decree for permanent injunction restraining the defendant Nos. 1 and 2 from selling, alienating and/or otherwise dealing with and/or transferring the said portion of the suit premises as indicated in Schedule ‘B’ to the plaint as well as for other reliefs. In the said suit, the petitioners/plaintiffs filed an application under Order 39 Rule 1 and 2 read with Section 151 of the C.P. Code and also sought for an interim order of injunction. The learned Trial Court was prima facie satisfied that a case for issuance of an order of status quo was made out. The opposite party No. 2 filed a written objection to the said application. In view of various false and incorrect allegations, the petitioners filed an application under Section 340 of the Code of Criminal Procedure being Misc. Case No. 89 of 2005 for an offence committed by O.P. No.2 under Section 191 of the Indian Penal Code. It was for giving false evidence on oath in the course of a judicial proceeding. O.P. No. 2 continued to negotiate with various strangers/outsiders for the sale of the suit property as indicated in Schedule ‘A’ and ‘B’ of the plaint though there was an order of status quo dated 29th November, 2004 in force. This compelled the petitioners to file an application under Order 39 Rule 2A of the C.P. Code and the same was registered as Misc. Case No. 88 of 2005. The O.P. No. 2 appeared in the said case and took several adjournments for filing written objection. The injunction application was fixed for hearing on 16.12.2005 and the learned Trial Court also fixed on 20.12.2005 for framing of issues in the suit being Title Suit No. 247 of 2004. The order of status quo passed on 29.11.2004 was thereafter extended from time to time. The injunction application was fixed for hearing on 16.12.2005 and the learned Trial Court also fixed on 20.12.2005 for framing of issues in the suit being Title Suit No. 247 of 2004. The order of status quo passed on 29.11.2004 was thereafter extended from time to time. In response to an application under Article 227 of the Constitution being C.O. No. 3927 of 2005, the learned Trial Court was directed to dispose of the injunction on or before 22nd December, 2005. By order dated 20th December, 2005, the learned Trial Court dismissed the application under Order 39 Rule 1 and 2 of the C.P. Code by holding that there was no triable issue involved and the balance of convenience was in favour of the defendants. The initial order directing the parties to maintain status quo passed on 29.11.2004 was, thus, vacated. Such order of dismissal of the injunction application was then challenged by preferring an appeal being Misc. Appeal No. 35 of 2005. An application for injunction under Order 39 Rule 1 and 2 of the C.P. Code was filed in connection with the said miscellaneous appeal praying for an order of injunction restraining the respondents from dealing with and/or disposing of and/or alienating by sale or otherwise the suit properties as described in Schedule ‘A’ and ‘B’ or from interfering with the peaceful possession of the suit property by the petitioners. The learned Appellate Court, however, refused to grant an interim order of injunction. Being aggrieved by such order of refusal dated 23.12.2005, an application under Article 227 of the Constitution was filed being C.O. No. 4519 of 2005 and the same was disposed of by order dated 15.2.2006 with a direction upon the parties to maintain status quo in relation to the disputed property. In view of the liberty given to the parties being family members, the opposite party Nos. 3 and 5 filed their respective applications before the Appellate Court thereby offering to purchase the disputed property. By order dated 30th June, 2006, the learned Appellate Court dismissed the miscellaneous appeal, but the applications filed by opposite party Nos. 3 and 5 whereby they expressed their willingness to purchase the properties were not disposed of. The present application is directed against such order dated 30th June, 2006 passed by learned Additional District Judge at Sealdah in Misc. Appeal No. 35 of 2005. 3 and 5 whereby they expressed their willingness to purchase the properties were not disposed of. The present application is directed against such order dated 30th June, 2006 passed by learned Additional District Judge at Sealdah in Misc. Appeal No. 35 of 2005. Assertions made by the petitioners were seriously contradicted by the contesting opposite party Nos. 1 and 2. It was specifically claimed that the laundry business, as referred to by the petitioner, has no connection with the premises in suit because the land on which the suit premises was constructed was collectively purchased by Snehalata Mitra, Tarun Kr. Mitra, Provat Kr. Mitra and Prasanta Mitra out of their respective funds. After such purchase, a four storied building was constructed and that too, out of the funds of all the said purchasers. The claim that O.P. No.1 lost his mental capacity after suffering from a cerebral attack or that the petitioners had to take care of the medical treatment and to bear the expenses of the said O.P. No.1, had also been denied. It was categorically denied that such four storied building is a family dwelling house. On behalf of the such O.Ps., it was claimed that the premises in question is a partitioned property and so, question of petitioner No.1 giving consent to any transfer of the property belonging exclusively to opposite party Nos. 1 and 2 could hardly arise. O.P. No.1 executed a Power of Attorney in favour of his wife, O.P. 2. It was further claimed that after amicable partition between the co-sharers of the premises, the opposite party Nos. 1 and 2 had been enjoying and possessing their allotted portions including the portion of Snehalata Mitra which was obtained by virtue of a duly probated Will. In the written objection filed by the defendant Nos. 1 and 2, it was claimed that having full and absolute right over the flats in question, the said defendant Nos. 1 and 2 disposed of the same at a valuable consideration prior to the institution of the suit in favour of the purchasers who are presently in possession in respect of their purchased flats in the suit premises. Only to avoid controversy and future litigation, notice was served upon the petitioner No.1 and on receipt of the same, he gave ‘no objection’. By filing Affidavits-in-Opposition, the present opposite party Nos. Only to avoid controversy and future litigation, notice was served upon the petitioner No.1 and on receipt of the same, he gave ‘no objection’. By filing Affidavits-in-Opposition, the present opposite party Nos. 3, 4 and 5 supported the claim as made by the plaintiffs/petitioners. While referring to the backdrop of the controversy as raised in the present application, it may be mentioned that by a registered Deed of Conveyance dated 25.1.1961, the Trustees for the Improvement of Calcutta sold to Smt. Snehalata Mitra, since deceased and her three sons, namely, Tarun Kr. Mitra, Provat Kr. Mitra and Prasanta Mitra, the land containing an area of 5 cottahs, 14 chittacks and 23 sq.ft. It does not seem to be in dispute that after that a four storied building was constructed on it. Thus, the aforesaid four persons became the joint owners of the premises, each having undivided 1/4th share therein. Thereafter, for more convenient and exclusive possession and better use and occupation and enjoyment or divided portions, the said persons mutually agreed and decided to have the said property partitioned. Mr. Saktinath Mukherjee, learned senior counsel, appearing for the petitioners invited attention of the Court to Clause-4 of the Deed of Partition. Said Calsue-4 which has been set out earlier, clearly indicates that if any of the four persons who are parties to the Deed of Partition decided to transfer or alienate his allotted portion, the other parties will have the right of pre-emption and/or first right to purchase or acquire the same from the party intending to transfer the same. It was clearly mentioned that in case none of the other parties intends to exercise the rights of pre-emption or to purchase the said share within one month from the date of service of notice thereof, then only the party concerned may sell his/her respective allotted share to an outside purchaser. Clause-4 of the Deed of Partition further specified that in case more than one party is willing to purchase the said portion then the highest offer amongst the parties hereto will be accepted. Referring to the decision in the case of Ghantesher Ghosh Vs. Madan Mohan Ghosh & Ors., as reported in AIR 1997 S.C. 471 , it was submitted by Mr. Referring to the decision in the case of Ghantesher Ghosh Vs. Madan Mohan Ghosh & Ors., as reported in AIR 1997 S.C. 471 , it was submitted by Mr. Mukherjee that Section 4 of the Partition Act read with Section 44 of the T.P. Act represents a well knit legislative scheme for insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share of one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. The Apex Court in the said case observed that such legislative scheme seeks to protect them from the onslaught on their peaceful joint family life by stranger-outsider to the family who may obviously be having different outlook and mode of life including food habits and other social and religious customs. Entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquility not only of the occupants of the dwelling house but also of neighbours residing in the locality and in the near vicinity. Mr. Mukherjee mentioned about the importance of maintaining the integrity of common dwelling house while submitting that Clause-4 of the Deed of Partition was a conscious reflection of the desire to maintain such integrity. In the case of Santosh Kr. Mitra Vs. Kalipada Das & Ors., as reported in AIR 1981 Cal. 278 , the Division Bench of this Court observed that the object of Section 4 is to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible. Deriving inspiration from the said decision, Mr. Mukherjee submitted that the intention to use the house as dwelling house is an important criterion in determining whether a house continues to be a dwelling house of the family or not. Mr. Mukherjee then contended that such Clause-4 of the Deed of Partition, thus, deserves to be considered in the right perspective and according to him, none of the learned Courts did really do so. It was then submitted by Mr. Mr. Mukherjee then contended that such Clause-4 of the Deed of Partition, thus, deserves to be considered in the right perspective and according to him, none of the learned Courts did really do so. It was then submitted by Mr. Mukherjee that learned Courts, as reflected from the impugned order, attempted to read more than what meets the eyes while dealing with the ‘no objection’ granted in response to the notice. The fact that it was soon revoked was not properly taken into consideration. Reference was made to the Apex Court decision in the case of Hadibandhu Das Vs. District Magistrate, Cuttack & Anr., as reported in AIR 1969 S.C. 43 , while submitting that the word ‘revocation’ is not capable of a restricted interpretation without any indication by the Parliament of such an intention. Mr. Balai Roy, appearing as learned counsel for the supporting respondents, in this context, invited attention of the Court to the decision in the case of Ibrahim Bachu Bafan Vs. State of Gujarat & Ors., as reported in (1985) 2 S.C.C. 24 . Black’s Law Dictionary gives the meaning of the word ‘revoke’ to be ‘the recall of some authority or thing granted or a destroying or making void of some deed that had existence until the act of revocation made it void.’ The Shorter Oxford English Dictionary gives the meaning of the word ‘revocation’ to be ‘the action of recalling; recall of persons; a call or summons to return; the action of rescinding or annulling, withdrawing ..….’ According to the Webster’s Third New International Dictionary, the word means – ‘ an act of recalling or calling back, the act by which one having the right annuls something previously done.’ Thus, essentially the true meaning of the verb ‘revoke’ and its noun, therefore, seem to signify that revocation is a process of recall of what had been done. At the time of hearing, it was emphatically submitted by Mr. Mukherjee on behalf of the petitioners and Mr. Balai Roy appearing for the supporting respondents that the impugned order clearly reflects non-appreciation of the principles for granting an order of injunction. At the time of hearing, it was emphatically submitted by Mr. Mukherjee on behalf of the petitioners and Mr. Balai Roy appearing for the supporting respondents that the impugned order clearly reflects non-appreciation of the principles for granting an order of injunction. Generally speaking, the sine qua non for granting an order of injunction are as follows:- a) There must be a prima facie case in favour of the petitioner; b) There must be irreparable injury if such injunction is not granted; c) The balance of convenience and inconvenience must be in favour of the petitioner seeking an order of injunction; In the case of Evans Marshall & Co. Ltd. Vs. Bertola SA & Anr., as reported in (1973) 1 All ER at page-992, it was held that ‘although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter of law, precluded its grant; there were special cases in which it was proper to maintain a status quo irrespective of whether the relief granted at trial would include an injunction.’ According to Mr. Mukherjee, the petitioners/plaintiffs quite convincingly succeeded in establishing that a prima facie case exists and non-grant of injunction may result in irreparable injury. On behalf of the petitioners it was then submitted that while granting injunction in such cases court should cautiously look to the conduct of the party, probable injuries to either party and whether plaintiff could be adequately compensated if injunction is refused. Relying upon the decision in the case of Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., as reported in (1992) 1 S.C.C. 719 , it was categorically submitted that failure to restrain the opposite parties No. 1 and 2 from alienating the property under reference would inevitably result in total destruction of the harmony of the family and demolition of its unique character. It was further submitted on behalf of the petitioners that the right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. The preemptor has a secondary right or a remedial right to follow the thing sold. It was further submitted on behalf of the petitioners that the right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. The preemptor has a secondary right or a remedial right to follow the thing sold. While assailing the observations made by the learned Court in the impugned order that if any portion of the disputed property is transferred during the continuance of the suit that will be the subject of the principle of lis pendens, it was submitted that the doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a pre-existing right. Reference was made to the decision in the case of Bishan Singh & Ors. Vs. Khazan Singh & Anr., as reported in AIR 1958 S.C. 838 , in this regard. Reference was also made to the decision in the case of Smt. Vijayalakshmi Vs. B. Himantharaja Chetty & Anr., as reported in AIR 1996 S.C. 2146 . The Apex Court in the factual backdrop of the said case held that right of pre-emption cannot be claimed in respect of bequeathed property. In response to this, Mr. Sunil Mitra, appearing as learned counsel for the contesting O.P. Nos. 1 and 2, submitted that the word ‘pre-emption’ is a right of substitution conferred on someone either by statute, custom or contract. The right is to step into the shoes of vendee preferentially on the terms of sale already settled between the vendor and the vendee. Before proceeding further, it is, perhaps, necessary to refer to the order dated 20th December, 2005 passed by the learned Trial Court in connection with the application for injunction. The relevant portion of the said order is set out as follows:- ‘Furthermore, it is evident that defendant No. 2 has already sold a portion of Schedule-‘B’ prior to the date on which this suit came into existence or plaintiff No. 1 withdrew his consent. Hence, the prima facie case does not lie in favour of the plaintiffs. Plaintiffs have prayed for restraining the defendant Nos. 1 and 2 from alienating the suit properties, but it is not the case of the plaintiffs they ever offered to purchase the suit properties. Hence, the prima facie case does not lie in favour of the plaintiffs. Plaintiffs have prayed for restraining the defendant Nos. 1 and 2 from alienating the suit properties, but it is not the case of the plaintiffs they ever offered to purchase the suit properties. So if any order of injunction is passed, then such an order shall cause much inconvenience and loss to defendant Nos. 1 and 2, on the other hand, if the defendant Nos. 1 and 2 transferred the suit properties, then the plaintiffs shall have appropriate remedies available to them. Consequently, the balance of convenience and irreparable loss also lie in favour of the defendant Nos. 1 and 2. Consequently, the petitioner under Order 39 Rule 1 and 2 of C.P.C. is liable to be revoked……” The learned Appellate Court while affirming the order of the learned Trial Court took into consideration the fact that the plaintiff No. 1 initially gave her consent admitting the right of defendant No.2 to transfer the portion of the suit property. It was held by both the learned Courts that the right of alienation is inherent to the ownership of a property. The learned Appellate Court in the impugned order dated 30th June, 2006 held that plaintiff No. 2 is in no way connected with either the original joint property or any portion thereof after partition. According to the learned Appellate Court, if any order of injunction is granted then it will amount to granting of an order of restraint in respect of a property or matter to which the plaintiff No. 2 has got no connection whatsoever. Learned Counsel for the parties referred to the various decisions relating to principles for granting an order of interlocutory injunction. There can be no dispute that the object of interlocutory injunction is to protect the plaintiff against the injury by reason of violation of his right and relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before the uncertainty could be resolved. Such order of injunction is generally intended to preserve and maintain in status quo the rights of the parties and to protect the plaintiff, being the initiator, of the action against incursion of his rights and for which there is no appropriate compensation being quantified in terms of damages. In the case of Colgate Palmolive (India) Ltd. Vs. Such order of injunction is generally intended to preserve and maintain in status quo the rights of the parties and to protect the plaintiff, being the initiator, of the action against incursion of his rights and for which there is no appropriate compensation being quantified in terms of damages. In the case of Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., as reported in (1999) 7 SCC 1 , the Apex Court referred to the considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions. The same are as follows:- (i) extent of damages being an adequate remedy; (ii) protect the plaintiff’s interest for violation of his rights though, however, having regard to the injury that may be suffered by the defendants by reason therefor; (iii) the court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the other’s; (iv) no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case – the relief being kept flexible; (v) the issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case; (vi) balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise; Lord Diplock in the case of American Cyanamid Co. Vs. Vs. Ethicon Ltd., as reported in (1975) 1 All England Law Reports 504 held as follows:- “The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where ‘the balance of convenience’ lies.” It is well settled that it is for the party seeking an order of injunction to establish that there is a prima facie case in his favour and non-grant of injunction will result in irreparable injury. In the present case, both the learned Courts applying the aforesaid tests were of the view that neither there is a strong prima facie case in favour of the plaintiff nor any irreparable injury is likely to be caused if such injunction is refused. Learned Courts also found that the balance of convenience and inconvenience tilts in favour of the defendants. Mr. Mitra, as learned Counsel for the contesting opposite partiers, categorically submitted that in view of such concurrent findings of the two Courts, there can be no justification for any manner of interference and according to him, Article 227 of the Constitution does not perhaps permit this Court to interfere. Relying upon the decision in the case of Essen Deinki Vs. Rajiv Kumar, as reported in (2002) 8 SCC 400 , Mr. Mitra submitted that interference with finding of fact is not permissible under Article 227, unless finding is perverse, or not based on any material whatsoever and causes manifest injustice. Mr. Mukherjee in this context referred to the decision in the case of Surya Dev Rai Vs. Ram Chander Rai & Ors., as reported in (2003) 6 SCC 675 . Mitra submitted that interference with finding of fact is not permissible under Article 227, unless finding is perverse, or not based on any material whatsoever and causes manifest injustice. Mr. Mukherjee in this context referred to the decision in the case of Surya Dev Rai Vs. Ram Chander Rai & Ors., as reported in (2003) 6 SCC 675 . The learned Division Bench of the Apex Court in the said case made the following observation:- “Despite laying down the broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Article 226 or 227 of the Constitution cannot be tied down in a strait-jacket formula or rigid rules. Not less than often, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction…..” But there may be cases where “stitch in time would save nine. The power is there but the exercise is discretionary which will govern solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the judge.” Relying upon the said judgment, the three Judges Bench of the Apex Court in the case of Shail (Smt) Vs. Manoj Kumar & Ors., as reported in (2004) 4 SCC 785 , held that the High Court not only has power to make directions by way of guiding inferior court or tribunal as to manner in which it would proceed but also has jurisdiction itself to pass such a decision or direction as the inferior court or tribunal should have made. Mr. Mukherjee derived further inspiration from the decision in the case of Hari Vishnu Kamath Vs. Ahmad Ishaque & Ors., as reported in AIR 1955 SC 233 in this regard. After giving due regard to the submissions made by learned Counsel for the parties and the various decisions of the Hon’ble Apex Court as well as other Courts, this Court is of the view that there can be no such restriction upon this Court in interfering with an order of inferior court or tribunal. Moreover, such constitutional authority, perhaps, deserves to be exercised in order to ensure that such a court or tribunal acts within its authority. Moreover, such constitutional authority, perhaps, deserves to be exercised in order to ensure that such a court or tribunal acts within its authority. Any approach made by a court or tribunal is certainly subject to the supervisory jurisdiction of the High Court under Article 227. There may be occasions for the courts to come to a concurrent finding but if such finding appears to be absurd, this court may very well interfere in exercise of its power under Article 227. If there is gross injustice and perverse finding which is likely to result in miscarriage of justice, this court cannot afford to remain indifferent and it can very well pass appropriate order in order to prevent such an undesirable situation. It may be mentioned that non-production of Power of Attorney before the learned Court was a matter of severe attack before this Court. It is worth mentioning that in course of hearing, may be, at the penultimate stage, a copy of such Power of Attorney was produced. Apart from raising controversy regarding the authenticity of such Power of Attorney, learned Counsel for the petitioners as well as for the supporting respondents referring to Rule 93 of the West Bengal Registration Rules 1962 sought to assail such Power of Attorney. It is reflected from the impugned order, learned Courts did not choose to deal with the same in details, and very rightly so, as the case is only at the stage of hearing of an application for temporary injunction. It is not that the entire merits are to be considered in minute details and the claim relying upon such Power of Attorney has to pass the test of such careful scrutiny. In course of submission, it was contended by learned Counsel Mr. Mukherjee that non-production of the Power of Attorney despite repeated reference casts cloud on the partition since one of the co-owners was not effectively represented. It was submitted that the vital technical point which strikes the partition at its root is to be resolved. And, in support of his contention that consent can always be withdrawn before being acted upon and reasons for withdrawal are not material, attention of the Court was invited to various provisions of the Indian Contract Act. Anxiety of the petitioners, as ventilated by Mr. And, in support of his contention that consent can always be withdrawn before being acted upon and reasons for withdrawal are not material, attention of the Court was invited to various provisions of the Indian Contract Act. Anxiety of the petitioners, as ventilated by Mr. Mukherjee, seems to be that in absence of order of restraint, stranger may be inducted and this premises may be converted into a commercial place. Learned Counsel Mr. Balai Roy, appearing for the O.P. Nos. 3, 4 and 5 while supporting the contention of Mr. Mukherjee categorically referred to the spirit of the purported partition. According to him, it was never intended to be a partition by meets and bounds but was rather an intra-family arrangement. Referring to the Deed of Partition, it was submitted by Mr. Bhaskar Sen, as learned Counsel for the O.P. Nos. 3, 4 and 5 that intention of the parties to the Deed need be gathered and clause-4 is to be read in the context of such intention and not in isolation. Attention was invited to the fact that substantial portion of the property has been left common and this indicates that no outsider or stranger is welcome. It was then mentioned that non-consideration of all these material aspects occasioned in failure of justice and so, the impugned order deserves interference. In view of subsequent production of the ‘Power of Attorney’, there had been effective change in the complexion of the controversy raised herein. Mr. Mitra further pointed out that in fact, an attempt has been made to unnecessarily inject emotion into a matter which deserves only legal consideration and that too, in a rational manner. After giving due regard to the submission made by learned Counsel for the parties, it seems that the initial objection as to the justifiability of entertaining an application under Article 227 has no force. Mere fact that this application is directed against concurrent findings of two Courts does not by itself justify brushing aside the grievances nor does it make unassailable. No doubt, this Court in exercise of its power under Article 227 must be extremely cautious and discreet. This being not a court of appeal, scope of interference is limited and it essentially relates to jurisdictional aspect. No doubt, this Court in exercise of its power under Article 227 must be extremely cautious and discreet. This being not a court of appeal, scope of interference is limited and it essentially relates to jurisdictional aspect. But the matters on record, the respective stand of the parties and the order under challenge, do not seem to suggest that the impugned order by any stretch of imagination suffers from perversity. It is not that any material fact was not taken into effective consideration. It clearly appears that the suit property was effectively partitioned amongst the co-owners. First right of purchase was given to the parties to such partition and quite reasonably so. But what could be expected from O.P. Nos. 1 and 2 when none came forward with an offer? What was left for O.P. Nos. 1 and 2 when objection not was initially raised? Learned Court quite rightly observed that an owner of a property cannot be denied his right to deal with the same in the manner he wishes, when it does not violate rights of others. No doubt, it is not an easy task to weigh the balance of convenience and inconvenience in all situations. It cannot be denied that damages or compensation in all situations cannot be adequate remedy. But granting of injunction or refusing to grant it is a discretionary relief. At the stage of hearing of the petition seeking an order of injunction, the Court is required to deal with the affidavits filed by the parties. The affidavits may be conflicting, the questions of law may be difficult and call for a detailed consideration. But in absence of any concrete material indicating that the learned Courts did not have the authority to deal with the matter in the manner as had been done, I find no rational justification for any manner of interference. Accordingly, the present application being A.S.T. No. 603 of 2006 fails and be dismissed. The order dated 30th June, 2006 passed by learned Additional District Judge at Sealdah in connection with the Miscellaneous Appeal No. 35 of 2005 be affirmed. There is no order as to costs.