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2011 DIGILAW 38 (CAL)

D. G. Industries Pvt. Ltd. v. Tanmoy Banerjee

2011-01-11

PRASENJIT MANDAL

body2011
JUDGMENT PRASENJIT MANDAL, J. 1. THIS application is at the instance of the defendant/respondent and is directed against the order dated August 20, 2010 passed by the learned Additional District Judge, Fifteenth Court, Alipore in Misc. Appeal No.43 of 2010 arising out of the Title Suit No.5 of 2010. 2. THE plaintiff/opposite party filed a title suit being Title Suit No.5 of 2010 for partition and other reliefs and in that suit, the plaintiff filed an application for temporary injunction. The plaintiff moved the petition for temporary injunction but the learned Trial Judge [learned Civil Judge (Senior Division), Baruipur, District South 24 Pargnas] issued a notice of show cause but did not grant any ad interim injunction. Being aggrieved, the plaintiff filed the misc. appeal being Misc. Appeal No.43 of 2010 which was disposed of by the learned Additional District Judge, Fifteenth Court, Alipore granting an order of status quo upon both the parties with a direction to dispose of the application for temporary injunction as early as possible. 3. BEING aggrieved by the said order, the defendant / respondent has preferred this application. Mr. Mitra, learned senior Advocate appearing on behalf of the petitioner, submits that in fact, his client purchased the suit property comprising of three plots under the plot nos.19, 20 and 23 under Khatian no.437 of Mouza Jagannathpur, District South 24 Parganas by three registered deeds of conveyance in 1964 and 1966 from the then recorded owners. The L.R. record has also been preferred in the name of the defendant and in fact, the defendant is in possession of the suit property all along since the deed of conveyance in 1964 and 1966. Mr. Mitra also contends that the plaintiff asserts that he has obtained the suit property by a deed of gift in 2000 only but his donors name does not appear in the R.S. Record or even in the L.R. record. There is no indication that the donor possessed the suit property all along. In fact, the petitioner runs a business on the suit land all along since 1964/1966. He also contends that the learned Trial Judge did not grant ad interim injunction rightly but the lower appellate court has granted the order of injunction by way of status quo and for that reason his client has been prejudiced. So, the impugned order should be sustained. Mr. He also contends that the learned Trial Judge did not grant ad interim injunction rightly but the lower appellate court has granted the order of injunction by way of status quo and for that reason his client has been prejudiced. So, the impugned order should be sustained. Mr. Mitra also submits that after obtaining an ad interim injunction the plaintiff did not comply with the provisions of Order 39 Rule 3 of the C.P.C. and for that reason, the interim order as passed by the learned Trial Judge should be set aside. In support of his contention, the decision of one of the Honble Judges of this Honble Court (Justice Nadira Patherya) in C.S. No.256 of 2009 has been referred to wherefrom it will appear that order of injunction has been vacated for noncompliance of Order 39 Rule 3 of the C.P.C. 4. ON the other hand, Mr. S. P. Roychowdhury, learned senior Advocate appearing on behalf of the opposite party, submits that suit is for partition and at the time of filing of the suit, the plaintiff prayed for ad interim injunction in consideration of the situation. He contends that at the time of consideration of ad interim injunction, the Court is to see whether there is a prima facie case to go for trial and if triable issue has been raised by the plaintiff. He has also submitted that at the time of granting an ad interim injunction, the court should see whether the situation demands for consideration of such prayer as made out in the body of the plaint. He contends that the learned Trial Judge failed to exercise his jurisdiction and he has wrongly decided that the relief of ad interim injunction should not be granted because the defendant is a juristic person. Such observation has been rightly rejected by the learned lower appellate court. The object of granting the injunction is to keep the property in status quo till the final disposal of the suit. In support of his contention Mr. Roychowdhury has referred to the decisions of AIR 1988 Cal 25 , (2004) 8 SCC 488 , 2000 (2) CHN 856 and AIR 1983 SC 742 . By referring to the said decisions, Mr. S. P. Roychowdhury has submitted that the learned lower appellate Court has rightly passed the order of status quo. In support of his contention Mr. Roychowdhury has referred to the decisions of AIR 1988 Cal 25 , (2004) 8 SCC 488 , 2000 (2) CHN 856 and AIR 1983 SC 742 . By referring to the said decisions, Mr. S. P. Roychowdhury has submitted that the learned lower appellate Court has rightly passed the order of status quo. Now, therefore, the question that arises for decision is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that this application has arisen when the learned Trial Judge issued a notice of show cause upon the petitioner and he refused to grant the ad interim injunction. Then, on being aggrieved, the plaintiff /appellant moved the learned lower appellate court and the learned Additional District Judge granted an order of status quo. The learned lower appellate court disposed of that misc. appeal directing the parties to maintain status quo of the suit property till the disposal of the petition for temporary injunction. 5. THUS, I find that the petition for temporary injunction filed by the plaintiff/opposite party is yet to be disposed of. Since the learned lower appellate court dealt with the matter of granting ad interim injunction and this application has arisen out of that order in the misc. appeal, this Court is to consider whether on the basis of the plaint supported by affidavit and annexures, the plaintiff has been able to show prima facie case to go for trial and to decide if the materials on record justified the ground of ad interim injunction. There is no scope of consideration of the other papers as filed by the defendant in support of his contention. In order to confine my findings, only on this matter, I have relied on the decision of Jitesh Pandey Vs. Smt. Urmilata Sinha and Ors. reported in 2000( 2) CHN 856. 6. SO far as the prima facie case to go for trial is concerned, I find that the plaintiff has contended that he got title over the suit property to the extent of 2.88 decimals of land on three plots, as described in the schedule of the plaint, by way of a Deed of Gift dated December 21, 2009 from Raina Fakir. The name of Raina Fakir is not appearing in the record of rights. The name of Raina Fakir is not appearing in the record of rights. But, it is described that his father, Abdur Rahim Mallick was the onwer of the suit property, as described in the schedule of the plaint and the R.S. record in respect of the suit plots lays down the name of Abdur Rahim Mallick as a owner. The defendant/petitioner did not purchase the share of Abdur Rahim Mallick but, from the Jamaluddin Molla and others. The R. S. record lays down that Jamaluddin Molla possessed the said three plots, namely, plot no.19, 20 and 23 and there is no indication that Abdur Rahim Mallick or any of his heirs possessed the said three plots. Be that as it may, I find that there is a prima facie case to go for trial because the plaintiff has claimed ownership over the suit property by way of a Deed of Gift from the donor who happens to be the daughter of a R. S. recorded owner. Therefore, I find that a prima facie case to go for trial has been established. So far the urgency of the matter is concerned, I find from the materials on record that the plaintiff has contended that the defendant has collected building materials to construct a boundary wall surrounding the said plots and that he is likely to dispose of the same. If the defendant/petitioner is able to make construction of the boundary wall of the suit property including the land of the plaintiff, then it will be difficult for the plaintiff to recover possession of the suit property. Moreover, if the property is transferred or encumbered by the defendant in any way, it may be difficult for the plaintiff to recover possession also. Since, I am to consider the position when the prayer for ad interim injunction was made taking the contents of the plaint, petition for injunction supported by affidavit and annexures and without taking into consideration of any defence stand, I am of the view that the plaintiff has shown urgency in passing an ad interim injunction to prevent multiplicity of the suit or proceedings and also to avoid further complications. Therefore, on perusal of such papers, it appears that the plaintiff has shown urgency for passing an ad interim injunction. Therefore, on perusal of such papers, it appears that the plaintiff has shown urgency for passing an ad interim injunction. The observation of the learned Trial Judge that since the defendant is a company, there is need of granting any injunction cannot be supported. The learned lower appellate court has rightly observed that such fact and he has rightly noted that there is an urgency in passing the order of injunction by way of status quo. The decision reported in AIR 1988 Cal 25 (particularly paragraph no.6) lays down the principle of granting ad interim injunction in such a situation. 7. MR. Roychowdhury has also referred to the decision of Maharwal Khewaji Trust (Regd.) Fadidkot Vs. Baldev Dass reported in (2004) 8 SCC 488 and thus he submits that in order to avoid multiplicity of proceedings, the Court may pass appropriate orders for injunction. In any event, it is always open to the other party to claim for damages, if the case of the party, pleading a maintenance of status quo is ultimately found to be baseless, or in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this Court. 8. MR. S. P. Roychowdhury has also relied on AIR 1983 SC 742 and thus he submitted that injunction restraining the defendant from putting up construction on entire land would be justified. The situation might become irreversible by the time, the dispute is decided for injunction, is not granted. As regards the compliance of Order 39 Rule 3 of the C.P.C., this Court in exercising a revisional jurisdiction is not in a position to determine whether the said provision has been complied with or not by the plaintiff. The learned Trial Judge is to take appropriate action on the basis of the materials in this regard as available in the record and the revisional Court cannot decide this matter. So, as to compliance of Order 39 Rule 3 of the C.P.C., the matter is left with the learned Trial Judge for decision. 9. HAVING considered the above situations and the decisions referred to above, I am of the view that the learned lower appellate court has rightly granted the order of status quo with regard to the suit property till disposal of the petition for temporary injunction. I am of the view that there is no scope of interference with the order impugned. HAVING considered the above situations and the decisions referred to above, I am of the view that the learned lower appellate court has rightly granted the order of status quo with regard to the suit property till disposal of the petition for temporary injunction. I am of the view that there is no scope of interference with the order impugned. So, the learned lower appellate court was justified in granting the order of status quo till the disposal of the petition for temporary injunction. This application, therefore, fails to succeed. It is dismissed. 10. HOWEVER, since the matter is pending for a considerable period for disposal of the petition for temporary injunction, I am of the view that the learned Trial Judge shall be directed to dispose of the petition for temporary injunction within two months from the date of communication of this order. So, the learned Trial Judge is directed to dispose of the petition for temporary injunction within two months from the date of communication, without fail. However, to avoid any complication or confusion, it is recorded that the above findings are for the purpose of disposal of this application and the learned Trial Judge shall not be influenced in any way by my findings. 11. CONSIDERING the circumstances, there will be no order as to costs.