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2011 DIGILAW 1283 (CAL)

Gopal Ghosh v. Seacem Paints (India) Pvt. Ltd.

2011-09-14

DIPANKAR DATTA

body2011
JUDGMENT Dipankar Datta, J. 1. In connection with a suit for declaration and permanent injunction instituted by the petitioners (hereinafter the plaintiffs), an application for temporary injunction was filed by them. The learned Judge of the Trial Court by order dated December 2, 2004 refused the prayer for ex parte ad interim injunction on the ground that there was no urgency. The order was carried in appeal by the plaintiffs. The learned District Judge, Alipore, South 24-Parganas admitted the misc. appeal by order dated December 7, 2004 on condition that certified copy of the order impugned should be filed within time limit and directed issuance of notice fixing February 2, 2005 for return and order. While considering an application under Order 39 Rules 1 and 2 of the Civil Procedure Code filed by the plaintiffs, the learned District Judge on the same date directed issuance of notice upon the defendants to show cause within ten days of service thereof as to why they shall not be restrained as prayed for by the plaintiffs. On the question of grant of ex parte ad interim relief, the learned District Judge was satisfied that the defendants had been encroaching upon the property of the plaintiffs to short-cut their ingress to and egress from their own property and they had been continuously threatening and criminally intimidating the plaintiffs' guards and watchmen with intent to make way for such ingress and egress and being convinced that the plaintiffs had been successful in establishing a strong, prima facie case and considering the urgency in the matter, he granted interim injunction, as prayed for, till January 7, 2005 with direction to the plaintiffs to comply with the provisions of clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code. The defendants after service entered appearance and contested the application for injunction by filing written objection. On a contested hearing, the learned Additional District Judge, 5th Court, Alipore, South 24-Parganas by judgment dated June 7, 2011 dismissed the misc. appeal of the plaintiffs and vacated the ad interim order of injunction passed therein and directed the Trial Court to proceed with hearing of the injunction application and trial of the suit as per law. 2. The said judgment passed by the lower Appellate Court has been impugned in this revisional application under Article 227 of the Constitution by the plaintiffs. 3. Mr. 2. The said judgment passed by the lower Appellate Court has been impugned in this revisional application under Article 227 of the Constitution by the plaintiffs. 3. Mr. Roy Chowdhury, learned senior advocate appearing for the plaintiffs, contended that the manner in which the lower Appellate Court dismissed the misc, appeal is not legal. According to him, the learned Judge did not assign reason for dismissing the misc. appeal although the plaintiffs had set up prima facie case for trial. He invited the Court's attention to the deed by which the defendants acquired right, title and interest in respect of their property to contend that they have no right of way over the plaintiffs' property. Also, the learned Judge acted illegally in not extending the ad. interim order of injunction to be operative till disposal of the injunction application by the Trial Court despite establishment of the defendants' having no right to encroach upon the property of the plaintiffs and the balance of convenience being in favour of such extension. It was also contended that regard being had to the fact that the ad interim order of injunction was operative right from December 7, 2004 till June 7, 2011, this Court in the interest of justice may consider directing the injunction to continue for a further period of two/three months and to direct the Trial Court to give its final decision on the application for injunction pending before it in the meantime. 4. Mr. Roy Chowdhury referred to the decisions reported in (1993) 3 SCC 161 (Shiv Kumar Chadha vs. Municipal Corporation of Delhi), (1994) 4 SCC 225 (Morgan Stanley Mutual Fund vs. Kartick Das) and (2004) 8 SCC 488 [Maharwal Khewaji Trust (Regd.) vs. Baldeb Dass] in support of his submissions and urged the Court to grant relief as claimed by the plaintiffs. 5. Mr. Banerjee, learned advocate for the defendants, opposed the application. According to him, no specific error of jurisdiction committed by the lower Appellate Court has been shown and the conduct of the plaintiffs demonstrates that they intend to enjoy the injunction indefinitely. It was further contended that none of the judgments cited by his adversary lay down the law that while/refusing injunction, reason should be recorded. According to him, no specific error of jurisdiction committed by the lower Appellate Court has been shown and the conduct of the plaintiffs demonstrates that they intend to enjoy the injunction indefinitely. It was further contended that none of the judgments cited by his adversary lay down the law that while/refusing injunction, reason should be recorded. Finally, it was contended that having regard to the concurrent findings of fact returned by the subordinate Courts that there was no urgency, the Court in exercise of revisional jurisdiction ought not to interfere with the order under challenge. 6. I have heard learned advocates for the parties and considered the materials on record. The only question that arises for determination is whether the subordinate Courts were justified in refusing ad interim injunction on the ground that there was no urgency. 7. The plaint reveals that the plaintiffs have prayed for a decree declaring that they are the absolute owners of the suit property as well as for a decree of permanent injunction restraining the defendants and their men, agents and associates from interfering with peaceful possession of the plaintiffs in any part of the suit property and or from making any attempt to enter the suit property through the two main gates of the plaintiffs. According to the plaintiffs, the cause of action arose first on August 17, 2001 when they purchased the suit property, then in the first week of November, 2003 when the defendant No. 2 and his associates/hired rowdies demanded passage on the plaintiffs' property and tried to enter suit property through the said two gates, and lastly on November 28, 2004 at noon and on subsequent dates when they again committed such overt acts, which are still continuing. 8. It further appears from the plaint that prior to institution of the suit, the plaintiff's had initiated proceedings under section 144(2) of the Criminal Procedure Code (hereafter the Cr.PC) on November 18, 2004 whereby the defendant No. 2 and his men/agents/associates were restrained by the learned Magistrate from entering upon or using and/or parking vehicles on the plaintiffs' property and passage and that despite the same, the defendants were trying to create a cloud over the plaintiffs' absolute title and possession of the suit property. It was only after 'the attempt made on November 28, 2004 that the suit came to be instituted. It was only after 'the attempt made on November 28, 2004 that the suit came to be instituted. In the application giving rise to M.P. Case No. 4232 of 2004, the plaintiffs referred to an incident of November 16, 2004 as the immediate cause for approaching the learned Magistrate. It was also mentioned therein that despite having no right, the defendant No. 2 and his men and agents were trying to encroach the property of the plaintiffs mentioned in the schedule thereto, which incidentally is the same as the schedule of property mentioned in the plaint. 9. It is the admitted case of the plaintiffs that the defendant No. 2 has been attempting to infringe their property rights and to encroach the suit property with the help of his agents/associates, thereby obstructing ingress and egress of the plaintiffs and that they have also been parking their vehicles on the suit property causing immense problem to them. Since the disturbances and/or obstructions allegedly committed/created by the defendants date back to purchase of the suit property by the plaintiffs on July 16, 2001 and continued thereafter, there appears to be no plausible reason as to why the suit was instituted belatedly. The normal reaction of an aggrieved party, in similar circumstances, would be to approach the Court immediately for protection of his right. Not having instituted the suit immediately after the alleged incidents in 2001 and 2003 and immediately after the incident that occurred on November 16, 2004 which prompted them to take recourse to section 144 of the Cr.P.C., and approaching the Trial Court only in the first week of December, 2004 after obtaining an order from the learned Magistrate, there is good reason to believe that the plaintiffs intended to steal a march over the defendants by making a prayer for ex parte ad interim relief and obtaining it. There was no question of granting ex parte ad interim injunction considering that the plaintiffs themselves had acquiesced for some time and by their conduct, they had made themselves disentitled to the same. 10. In Morgan Stanley (supra), the Supreme Court has laid down the factors which ought to weigh with the Court in the matter of grant ex parte injunction. 10. In Morgan Stanley (supra), the Supreme Court has laid down the factors which ought to weigh with the Court in the matter of grant ex parte injunction. The same read as follows: (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve; (c) the Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented; (d) the Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction; (e) the Court would expect a party applying for ex parte injunction to show utmost good faith in making the application; (f) even if granted, the ex parte injunction would be for a limited period of time; (g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court. 11. Considering factors (c) and (d) supra, it is clear that the subordinate Courts did not commit any illegality in refusing ex parte injunction, although the judgment of the lower Appellate Court may not have contained adequate reasons for dismissal of the misc. appeal. 12. In so far as the contention of Mr. Roy Chowdhury that the order of injunction continued for six and half years and, therefore, the same should continue till disposal of the injunction application pending before the Trial Court is concerned, I find no reason to accept the same. From the records of the lower Appellate Court, it appears that the lower Appellate Court did not have a Presiding Officer from February 19, 2007 till December 20, 2010 i.e. more than three and half years. Moreover, the records of the Trial Court despite being called for on December 7, 2004 had not even reached the lower Appellate Court till order No. 50 dated March 4, 2011 was passed, whereby the records of the Trial Court were again called for. It was only thereafter that the learned Judge of the lower Appellate Court proceeded to consider the injunction application as well as the misc. appeal and dismiss the same, as noticed above. 13. It is, therefore, clear that for reasons beyond the control of the parties the misc. It was only thereafter that the learned Judge of the lower Appellate Court proceeded to consider the injunction application as well as the misc. appeal and dismiss the same, as noticed above. 13. It is, therefore, clear that for reasons beyond the control of the parties the misc. appeal could not be decided earlier. Much of the fault for such delay lies with the Court itself. It defies logic as to why it took six years for the records of the Trial Court to climb up to the lower Appellate Court. Definitely, for the Courts' fault a party ought not to suffer. Had it been a case where delayed disposal of the misc. appeal was solely due to reasons attributable to the defendants, Mr. Roy Chowdhury's submission could have been accepted and the injunction directed to continue till disposal of the application for temporary injunction pending before the Trial Court. 14. In the result, I find no reason to interfere with the judgment under challenge. The revisional application stands dismissed. The Trial Court is directed to expedite its decision on the application for temporary injunction. It would be desirable if the I application is disposed of by the end of January 31, 2012. The records of the lower Appellate Court shall stand detagged and be sent down immediately. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.